About this Author
Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
Ernest Miller's blog postings can also be found @
Copyfight
LawMeme
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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Category Archives
July 13, 2005
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Drew Clark's Spectrum Wars Now Online
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Geist Savages the Harry Potter Injunction Some More
Michael Geist is really going after the injunction a Canadian court has issued regarding the accidental sale of Harry Potter books before they officially go on sale in a couple of days (Harry Potter Injunction). It baffles me that this injunction is considered to be part of copyright law, just as I don't really consider Harper & Row to be part of copyright law. Both cases seem much more similar to trade secret cases than copyright law.
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Coca Cola Threatening Lawsuit Against Political Art
The India Resource Center reports that the Coca Cola company is going after an Indian artist whose commentary on Coca Cola's policies incorporates their logo (Coca-Cola Threatens Top Indian Photographer with Lawsuit). Mr. Haksar, a leading international photographer and winner of the 2005 Cannes Silver Lion, has placed a large billboard in one of Chennai's busiest areas - one of India's largest cities - with his own "work (which) is solely an expression of creativity." The billboard features the ubiquitous red Coca-Cola wall painting, commonly found across India. Directly preceding the Coca-Cola ad, and part of the billboard, is a dry water hand-pump, with empty vessels waiting to be filled up with water - a common scene in India, particularly in Chennai. On July 11, 2005, the law firm of Daniel & Gladys, who represent Coca-Cola's Indian subsidiary, sent a letter to Mr. Haksar threatening him with serious legal actions unless the billboard was replaced 'unconditionally and immediately'. Coca-Cola would seek Indian Rupees 2 million (US$ 45,000) for "incalculable damage to the goodwill and reputation" of Coca-Cola, and also sought an 'unconditional apology in writing'. Mr. Haksar said, "I have no intentions of issuing any apology. Because I have not committed anything wrong. If Coke pursues this legal course, my lawyers shall take appropriate counter action." via Furdlog
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July 12, 2005
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Divorce and Virtual Worlds
This is nearly a couple of weeks old, but Pacific Epoch reports that a Chinese divorce case involves a serious dispute over virtual goods (Game Accounts Take Center Stage In Divorce). A divorce in Chongqing has turned ugly when both parties want their joint online game accounts, Chongqing Business Post reports. Mr. Wang from Chongqing and Ms. Ye from Huibei met last September on Shanda's (Nasdaq: SNDA) online game Legend of Mir 2. Wang saved Ye's character from being killed by another player. The couple married at the end of October but decided to get a divorce in June. During their marriage, the couple jointly played over ten Mir 2 accounts, attaining level 40 to 50 status for all of them. The characters and virtual items are estimated to be worth 40,000 to 50,000 Yuan. [$5,000-$6,000] Wang said that he wants to keep the accounts and virtual items and is willing to give their joint apartment to Ye. However, Ye wants to split the apartment and game items equally. How would you determine the value if it was a violation of the EULA to sell the items? via IFTF's Future Now
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July 11, 2005
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Open Access to Window's Anti-Spyware Lists Recommended
Ed Bott has some excellent questions about and recommendations for Microsoft's anti-spyware policies (Dear Microsoft: Why Should We Trust You to Detect Spyware?). - Publish the Windows AntiSpyware database. Put it on the Web. Make it searchable. Provide a description of why each product is listed, how it's classified, and what the recommended action is. Include a change log to document when classifications and recommendations change and why. Make the review process public. Ben Edelman has made this suggestion before, and I agree with it.
- Release control of the detection database to a truly neutral third party. If Microsoft controls the contents of the database, it will never be able to overcome the perception that it is basing its decisions on criteria related to profit and not on user needs. Create a nonprofit organization with an independent board of directors and well-qualified management, give it a charter, fund it through an endowment, and agree to indemnify it for any legal costs related to complaints over classification. Let that group build a spyware classification system using published criteria and feedback from customers. Publish the database under a Creative Commons license. If the organization providing this database has no commercial interest to provide a potential conflict of interest, the Clarias of the world would have quite a burden to overcome before they could establish that they're being unfairly targeted.
[emphasis in original]
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Ludicrous Copyright Response Letters
JD Lasica has an excellent collection of letters he has received from various studios when he asked permission to use short clips from their movies in home movies he was producing for family use only (When the Studios Won't Give Permission). Some of the responses are risible, others are just sad. There should be no permission necessary for the creation of works in which there is no public distribution. Life would be much simpler and just.
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CoCo on German Copyright Decisions
Constitutional Code has a great roundup of information on several decisions in German courts regarding the copyfight (German File-Sharing Round-Up: TV P2P & Advertisement). One version of P2P software cannot be distributed, it is illegal to link to allofMP3.com, and although internet portals are protected against damages for linking to sites that permit infringing, injunctions may still issue against them. Read the whole thing.
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Fair Use of Citizen Journalism Photos by Big Media
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Anti-Spoofing Technologies and Grokster
Ed Felten points to a report (behind a firewall) that the RIAA is making the argument that anti-spoofing technologies on P2P networks may be evidence of inducement under Grokster (RIAA Saber-Rattling against Antispoofing Technologies?). Ed is entirely right that anti-spoofing technologies have both good and bad uses (you want to make sure you get a good connection/copy of that open source program). It is unlikely that these technologies alone will create liability (fact dependent Sony test necessary, however). Nevertheless, I can see under Grokster that if a court does find other evidence of intent that, like using an advertising-based business model or not employing filtering, a court could find the use of anti-spoofing technology to be further evidence of intent. So, if there is no initial evidence of intent, anti-spoofing is probably good. But, if the court finds evidence of intent, then anti-spoofing could be found to be further evidence of bad intent. What a mess.
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BBC Blasted for Making Music Freely Available
One would think this is parody, but apparently it is not. The Independent reports that classical music labels are lambasting the BBC for making MP3s of classical music available for free download (Downloading Trouble at the BBC). The BBC has been lambasted by classical music labels for making all nine of Beethoven's symphonies available for free download over the Internet. ... But the initiative has infuriated the bosses of leading classical record companies who argue the offer undermines the value of music and that any further offers would be unfair competition. Managing director of the Naxos label, Anthony Anderson, said: "I think there is a question of whether a publicly funded broadcaster should be doing this and there is the obvious issue that it is devaluing the perceived value of music. You are also leading the public to think that it is fine to download and own these files for nothing." Heaven forfend! via Scripting News
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July 07, 2005
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Senate Hearings on Grokster Decision
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July 06, 2005
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Opera Browser Embeds BitTorrent Functionality
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Man vs. Machine on the Chess Board: Computers Victorious
Ed Felten declares computers the winner in the man vs. machine chess arena (Chess Computer Crushes Elite Human Player). This may seem inevitable in hindsight, but for the longest time people insisted that human chess players had something special which computers could never duplicate. That was true, up to a point. ... Chess computers have succeeded by ignoring what human chessplayers do best, and doing instead what computers do best. And what computers do best is to run programs written by very clever human programmers. Hmmm ... sounds like another challenge for computing.
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EFF Adds Labor Law Section to its Legal Guide for Bloggers
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Stifling Innovation Not Working Out Well for Cellular Providers
Business Week's Blogspotting has some interesting evidence of the failure of the closed network model for cellular service (Mobile Internet: a Story of Stagnation). What can we gather from this? The mobile industry, which has been breathlessly awaiting revenue growth from mobile data, has utterly failed to provide Internet handsets and services worth our time and money. Significantly, the one area of growth--wireless email--developed largely on services and handsets that came from outside the phone industry, from Research in Motion's Blackberrys and PalmOne's Treo. Gee, I wonder if they opened up their networks, someone more clever than the cellular service companies might come up with the killer app for mobile data?
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The New Blue Book
Michael Madison has a short collection of links on various changes in the legal academe, including a link to a review of the new edition of the Blue Book for legal citation (Blue Booking and the Academy). Read the whole post, but here's my question. When, oh when, will they make the Blue Book freely available online? And when will we have a Blue Book for Legal XML? Let's see some well-formatted metadata inside the text. After all, isn't that what Blue Booking is all about? Providing well-formatted metadata?
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Interesting Use for RFID in Bike Parking Lots in Japan
Engadget notes what sounds like a pretty good use of RFID (Perfect Gate RFID Bike Parking in Japan: Not Bad!). We were a little skeptical last year when we heard some company called Perfect Gate Ltd. would be rolling out an RFID-based system for the locking of bikes—not to mention the not a chance in hell attitude we got from our friends big on biking. But hey, what do you know? The Maruyoshi Cycle bike parking lot in Osaka (yeah, they have those over there) has reportedly cut theft from one bike monthly to zero for over a year now by implementing the system, which consists of one embedded tag in the front wheel of the user’s bike, and a counterpart RFID tag that links the owner to the property and grants access to the lot.
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Von Lohmann on 17 USC 115 Reform
EFF's Fred von Lohmann has some positive things to say about the Copyright Office's proposal to reform 17 USC 115 (A Worthy First Step). This is an important step in the right direction, creating the prerequisites for a real, market-based solution to the P2P dilemma. Of course, it will still be up to the record labels (which own the copyrights in the sound recordings) to join the MROs or create their own collecting societies to license P2P users directly, but the MRO example, if successful, may provide just the push that the record industry needs. At a minimum, this reform should accelerate the licensing of digital music services and novel online uses, like podcasting, that should not be held hostage to internecine squabbles between middlemen, all of whom claim to represent the same rights holders.
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Introducing the Spoken Alexandria Project
The Shifted Librarian brings news of the Spoken Alexandria Project (Introducing the Spoken Alexandria Project + Podcast). The Spoken Alexandria Project is creating a free library of spoken word recordings, consisting of classics in the public domain and modern works (with permission). AAC, Ogg Vorbis, and MP3 audiobooks available for free download and redistribution.
Sounds like a great podcast subscription. I also think that more drama schools/classes should produce audio books as class projects.
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Euro Software Patents are Dead
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July 05, 2005
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Chilling Effects from a Privacy/Security Bill?
C|Net News' Declan McCullagh reports on a new security/privacy law that could have a chilling effect on blogs and other small publishers (The Coming Web Security Woes). Anyone who runs a Web site with registered users and receives income from it (Blogads and Google Ads count) should be concerned. The Specter-Leahy bill says that if that site's list of user IDs or e-mail addresses is compromised, each registered user must be notified via U.S. mail or telephone. Refusal to do so can be punished with $55,000-a-day fines and prison time of up to five years. That's remarkable but not as extreme as the second requirement: The Web master or mailing list operator might have to "cover the cost" of 12 monthly credit reports of each person whose e-mail addresses was lost or purloined.
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July 04, 2005
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Goldman on Click Fraud
Another great post from Eric Goldman, this time on a "click fraud" lawsuit against Google (Click Fraud Lawsuit--Click Defense v. Google). I vacillate between two competing perceptions about click fraud lawsuits. Sometimes I think that Google deserves some legal heat for its blasé attitude towards click fraud. Other times, I think click fraud plaintiffs are merely media grandstanders and quasi-extortionists. Unquestionably Google can do more to address click fraud, but advertisers—especially Click Defense (given its specialty in click fraud tpics)—know about click fraud and yet voluntarily decide to enter into a contract with Google and voluntarily choose the keywords and pick the CPCs they think are profitable knowing that click fraud exists. I think Click Defense’s complaint is legally weak but not frivolous. Perhaps with sufficient legal sophistry, Click Defense can find a way to convince a judge to give it legal redress. Nevertheless, I remain convinced that click fraud should and will be solved through business dealings rather than in a court of law.
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Visions of the Future from AOL Circa 1995
This is almost unfair. Susan Crawford pulls an admiring profile of AOL from 1995 and basically allows it to make a fool of itself (Someone to Watch Over Me). Case believes that Microsoft and the Internet players are not going to be cheaper or easier to use, and therefore, are not taking the approach that's going to build a mass market. He's convinced that his opponents' strategy of "disintermediation" - unbundling systems and letting users "roll their own" packages - is going to be too much of a hassle for Mr. and Mrs. Average Online Consumer. "I don't see any evidence to suggest that this is what the 93 percent [the percentage of Americans that were unconnected in 1995] wants," Case says. "I think a subset of the 7 percent wants that. The people I talk to who don't yet use online services don't use them because they are still a little scared of them. Making it more complicated for people to connect and use the service, giving them a bewildering array of options to pick from - it's hard to imagine that's going to help." How's that working for you, AOL?
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Om Malik on RSS Spam
Om Malik on RSS spam clogging up places like Technorati, PubSub and Feedster (RSS Spam Cometh?). It has been working well, but lately I have observed a few disturbing signs that can quickly turn RSS into yet another technology to avoid. RSS searches are now throwing up classifed listings from not just Craigslist but other sites. It shows the obvious shortcomings in the RSS search engines. This is going to be a bigger problem going forward - more and more people are indiscriminately churning out RSS feeds. Yep, this is definitely getting to be a problem. A commentator on Om's blog claims that Technorati "has several full-time employees weeding out spam blogs." Problem is, that doesn't scale.
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German Publisher's Group Pushing to Poison DNS
Constitutional Code brings some disturbing news from Germany (DNS Poisoning Requested From Providers by Rights Organisation). The German rights organisation for composers, lyricist and publishers, GEMA, has asked 42 access providers to poison their DNS servers in order to block sites that provide links to eDonkey files. In short, DNS poisoning obstructs the process of converting a URL to a numeric IP address. The GEMA apparently expects the access providers to configure their DNS servers so that "inquiries by end-users are not passed to the correct server, but to an invalid or another pre-defined side." The GEMA also demands that the providers sign a testimony,with which they commit themselves to ensure full blockage under a contractual penalty of 100.000 euro if any of their customers can still reach the targeted site after July 25th.... In the Pennsylvania child pornography case, slightly reminiscent of this one, new legislation allowed the government to aks access providers to block sites, using DNS poisoning amongst others. In that case there was a law to challenge, constitutional restraints to invoke, a court to review the pressure put on the public (government) - private (users) relationship. While laws may be applicable in the German case, users could "constitutionally" loose out if private demands are enforced by private parties. A judicial review is appropriate here, if for one thing, to test how far decisions to block the information flow can be pushed and taken within the private realm. Even if there's arguably illegal activity involved. Because there always is....arguably. [links, emphasis in original] Definitely not good.
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Profile of a Trademark Abuser
The New York Times has a good article on a trademark abuser (He Says He Owns the Word 'Stealth' (Actually, He Claims 'Chutzpah,' Too)). Over the last few years, Leo Stoller has written dozens of letters to companies and organizations and individuals stating that he owns the trademark to "stealth." He has threatened to sue people who have used the word without his permission. In some cases, he has offered to drop objections in exchange for thousands of dollars. And in a few of those instances, people or companies have paid up.... "We're entitled to own it with all goods and services," he said. "We were there first."... Mr. Stoller has taken his claims to federal court - with unusual frequency, in at least one judge's view. In one case in 1999, United States District Judge Joan B. Gottschall in Chicago noted in a decision against Mr. Stoller and S. Industries that the company had appeared before the court 33 times from 1995 to 1997. via A Blog Doesn't Need a Clever Name UPDATE 1145PT - Joe Gratz has more, including links to the actual complaint/letters ( Idiotic Trademark Abuse).
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July 03, 2005
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No News is Good News
Seth David Schoen finds news in something that didn't happen (Broadcast Flag). I just wanted to point out that it's July 2005 and the broadcast flag is not the law in the United States.
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Defending the Commons in India
Nice essay on the public domain in The Hindu (Pirates of the Commons). CONTROLLING access to literary works to prevent copies from being made is a practice that goes back millennia. The Royal Library of Alexandria was so notoriously difficult to get into that Ptolemy III had to bribe his way in with 15 talents of silver.
Innovations do not bloom in an intellectual vacuum where access to knowledge is controlled. Read the whole thing. via Open Access News
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Goldman on Recent DOJ Warez Group Busts
Eric Goldman writes about the continued futility of the law enforcement fight against warez groups (Operation Site Down--The Latest Warez Group Bust (vintage 2005)). As I've written previously, the war against warez is ultimately futile. With sufficient enforcement, eventually we can put all of the warez traders behind bars, literally removing them from society to prevent their actions. Otherwise, the threats of criminal enforcement have had no measurable deterrence. Despite the apparent futility of criminal sanctions in preventing warez trading, I've predicted that the DOJ will continue to hunt down and bust warez traders to show Congress that it is taking advantage of the shiny new criminal copyright infringement laws that Congress keeps handing it. [links in original] From his paper The Challenges of Regulating Warez Trading: While the enemy has suffered a few casualties in Congress’ war against warez, there has been no victory, and it will never come. No quantum of stiffened criminal penalties will change that result. Warez trading is about ego, prestige and reputation, and so long as intangible assets are fenced off, a group of enthusiasts will seek recognition for breaching the fences. In that sense, increased criminal penalties may counterproductively encourage warez trading by making it a little more daring and impressive. If the goal is to reduce copyright infringement, it may actually be that DRM is not only not cost effective, but counter productive. What sort of egoboo can one get for cracking something that doesn't have DRM?
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Subscription-Based Advertsing
Terry Heaton has more about RSS in advertising ("It's All About the Money"). Harry Hayes sent me a link yesterday to a new service by Northwest Airlines -- fare promotions and other items delivered via RSS. This is significant, because RSS makes it easy for retailers to talk directly to customers without spam issues. In the future, it's very possible that big, big advertisers won't be doing much advertising, because people interested in their wares will be able to subscribe to their RSS feeds -- by-passing the media companies altogether. One day you'll see local retail aggregator companies that deliver nothing but ads for clients -- sort of the "sale paper" of tomorrow. [link in original] RSS as advertising, not advertising in RSS. The more I think about it, the more I like the whole concept of subscribing to some advertising feeds. There are dangers here, too, but the possibilities are fascinating. For example, why not pick who will sponsor particular content for you? For this to work, however, it has to be about keeping customers informed, not simply convincing them to buy.
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More Crawford's Notes on the History of Telephony
Prof. Susan Crawford continues her excellent notes on the history of telephony with another couple of great posts (History of Telephony and When Old Technologies Were New). For an entire generation after the telephone was introduced, the Bell system managers resisted its use for social purposes. Yes, there are memos and reports from the early years saying that managers were trying to get people to stop gossiping on the telephone. The president of Bell Canada, in 1890, complained he couldn't stop trivial conversations, and a manager in Seattle in 1909 wanted to limit use of the telephone for purely idle gossip. [emphasis in original] Good stuff. Previous post here: Crawford's Notes on the History of Telephony.
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$1 Public Domain DVDs in the NY Times
Via FurdLog, I note that the New York Times has an article on $1 Public Domain DVDs (Attack of the $1 DVD's). While overall DVD sales are robust - last year retailers sold $15.5 billion in discs - the low-end market is positively booming. Recently, 19 of the 50 top sellers on the Nielsen VideoScan national sales charts were budget DVD's. "The prices are irresistible," said Gary Delfiner, whose Global Multimedia Corporation offers 60 film, cartoon and television titles with prices ranging from 99 cents to $1.99. Hmmm ... this sounds familiar. Oh, yeah, there were stories about this last year: Who'd Buy the Public Domain for a Dollar?). And, while physical media is great, why not put these movies online for delivery straight to your television screen? When will people realize that they can broadcatch this stuff?
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Media Server for TiVo
Galleon is "is a free open source media server for TiVo which allows you to enjoy many kinds of content and interactive applications right on your TV. The server runs on your home computer and organizes your media collection so that they can be viewed on your home network. Galleon also brings Internet content and applications to your TV." Now this is what I'm talking about. Be sure to check the screenshots. Of course, this is also only the beginning. The system does seem to lack one of the most important capabilities: playing video downloaded from the net. Shouldn't be too difficult to add, should it? I can easily imagine people creating RSS feeds specifically designed for viewing via television. Including, of course, vlogs. Lots and lots to do. via PVR Wire
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Capturing Audio by the Ton
I'm a bit late in blogging this, but this is really significant. Doug Kaye of IT Conversations has a new project to document all the audio presentations from conventions and other places that he can (The New Project). Every day there are scores or even hundreds of fascinating and important conference sessions, lectures or other presentations that are lost. They simply evaporate because no one captures or records them. Some of these presentations are by the greatest and most inspiring minds of our time, and many could be important to people in the far reaches of the planet, if only they could hear them. My new project is to capture (record) all of these presentations, post-produce them, and make them available worldwide for free. This is another project that is going to change things. (Disclosure: I have my own show on IT Conversations - The Importance Of ... Law and IT).
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July 02, 2005
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First it was Box Office, Now DVD Sales Slumping Too?
There has been a lot of talk about the sluggish box office for recently released movies, but now BusinessWeek is reporting sluggish DVD sales as well (End of the DVD Party?). This is not good news for Hollywood, as many of the problems with box office were mitigated by the rise of DVD. If DVDs are faltering too, well, that is a real problem for Hollywood. What is behind this is unknown, so far. Speculation abounds. Result: Retailers increasingly are shipping back unsold DVDs -- even those as hotly anticipated as Shrek 2 or The Incredibles -- because they don't have enough shelf space to keep all those titles, figure several analysts. The article also mentions all the additional competition for viewers, such as videogames and TiVo, which makes broadcast more attractive. Perhaps this is just a blip, if not, as the article says, it could be "seismic." via ReBang
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Hodder: Grokster Victory in 5-8 Years
Mary Hodder's analysis of the ultimate impact of Grokster is very similar to mine (The 5-8 Year Problem: Asking the Ocean To Turn Back Won't Work With Digital Media Tides). In 5-8 years, I think the Grokster problem will be solved by a combination of: 1. business model changes by legacy media; 2. changes in demographics because the fact is there will be a critical mass of users who have grown up with digital models in the heads (who are now young enough not to be of voting age but soon will be); and 3. where enough activity online is about people sharing and trading their own stuff (user generated media). It will be little media makers, supplying their own demands, who will solve this legal problem, first. Legacy media will follow behind them. All those legacy media companies, in order to continue to be as relevant to the masses as they have been in the recent past will have to come to the party and play in order to keep their stuff in front of our eyes. That is, the digital media party online, where they find that in order to participate, they have to give up some control of their copyrighted works, and rethink their models to include things like giving away some media in order to make money in some other place. Apparently she has had a drink of the P2P Kool-Aid as well. See Kicking the Sony Can Down the Road for my take. Time is on our side.
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Apple Plugging Trade Secret Leaks?
Daring Fireball notes that two recent announcements from Apple have taken place with nary a word in the rumor mill (Plugged Leaks). Note to crackpots: this is not a “chilling effect” of Apple’s lawsuits; to say so implies the rumor sites had information, but were intimidated from publishing it. That’s not the case — Apple Insider, for example, continues to publish whatever it can get its hands on, It might not be a "chilling effect" on Apple Insider, but that doesn't mean that Apple v. Does has not had an effect on those who are actually doing the leaking. You'll be much less likely to leak if you think that those who publish the leaks have to turn your name over. It might also be, as Daring Fireball notes "the result of good old-fashioned leak-plugging." In other words, companies can control the leak of trade secrets if they try.
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Has Apple Got the Podcasting Tiger by the Tail?
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July 01, 2005
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RSS for Marketing - Lots of Innovative Potential
ClickZ has an interesting article on interesting uses of RSS for marketing: Real-Life RSS Marketing. Forrester analyst Charlene Li enthuses about RSS apps. "This whole idea of light apps being built on top of RSS feeds. Why can't consumers just visit a Web site and build them?" Which reminded me of Scott Matthews' Bitty Browser. Companies and others looking for interesting ways to use RSS should consider licensing a branded version of the Bitty Browser. There is a lot of potential for really innovative uses of RSS out there. via Online News Squared
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June 30, 2005
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New England Cable Requests Viewers' Videos for Broadcast and Posting on the 'Net
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Felten on GAO's P2P Filtering and Porn Report
Ed Felten does a great job analyzing a recent GAO report on filtering, porn and P2P systems (GAO Data: Porn Rare on P2P; Filters Ineffective). Note that the title of his post is "GAO Data" not "GAO Report". Read the whole thing. Ed's conclusion: The policy prescription here is clear. Don’t mandate the use of filters, because they don’t seem to work. And if you want filters to improve, it might be a good idea to fully legalize research on filtering systems, so people like Seth Finkelstein can finish the job the GAO started.
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June 29, 2005
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EFF Files Trademark Lawsuit for Use of Trademark in Magazine Name
Derek Slater, blogging for EFF's DeepLinks brings news of a new trademark case to prove the right of a magazine to use the trademark of the item it covers in the name of a magazine (Yet More Lost in the Shuffle). EFF announced Monday that it has filed a lawsuit against French pharmaceutical giant Sanofi-Aventis Group on behalf of Medical Week News, publishers of the medical news website AcompliaReport.com. The website reports news about Acomplia, a forthcoming Sanofi-Aventis drug. Based on use of the drug's name in the website domain name, Sanofi-Aventis recently threatened Medical Week News with legal action. Read the press release: AcompliaReport.com Sues for Right to Use Trademark to Report on New Drug. Read the 6-page complaint: Acomplia Initial Complaint [PDF].
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Time Magazine: Then and Now
CJR Daily has a telling look at traditional journalism then and now (Abe Lincoln, a Terrorist in Training and, Yes, Jennifer Wilbanks): In the dog days of summer, newsmags are wont to turn to old news -- sometimes 140-year-old news. Time put Honest Abe on the cover this week, with a nine-story feature package covering the "True Lincoln." Last time Time fronted Lincoln: May 10, 1963. (Subscription required.) We looked into it because we thought he'd been on Time's cover last year. Silly us, last Fourth of July it was Thomas Jefferson. Here's the thing, though: In that 1963 issue of Time, we discover articles reported from Italy, Great Britain, Russia, Yugoslavia, France, Yemen, South Africa, Congo, West Irian, Red China, Togo, Ceylon, Hispaniola and Canada. And today? We won't embarrass anyone with numbers, but, on the bright side, there is an illuminating article out of Baghdad. Ouch.
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If Violent Videogames Cause Violence, Where's the Crime Wave?
Reason's science correspondent, Ron Bailey, is unimpressed with studies that purport to show a connection between violent videogames and real-world violence (Video Violence = Real Violence?).
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June 28, 2005
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When U Beats 1-800-Contacts
Eric Goldman has a must-read summary of a recent trademark/internet keywords case (Important 2d Circuit Adware Case--1-800 Contacts v. WhenU). The court found that WhenU was not liable for trademark infringement as a matter of law: "We hold that, as a matter of law, WhenU does not 'use' 1-800's trademarks within the meaning of the Lanham Act, 15 U.S.C. 1127, when it (1) includes 1-800's website address, which is almost identical to 1-800's trademark, in an unpublished directory of terms that trigger delivery of WhenU's contextually relevant advertising to C-users; or (2) causes separate, branded pop-up ads to appear on a C-user's computer screen either above, below, or along the bottom edge of the 1-800 website window." The appeals court overturned a terrible district court opinion. Read the whole thing.
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iTunes 4.9 - Now with Podcasting
Ironically, the day after the Grokster decision, Apple releases iTunes 4.9, "Now With Podcasting". Interestingly, the Grokster concurrence by Justice Breyer actually mentions podcasts as something that can be legitimately swapped on P2P networks. As far as I know it is the first court opinion mention of podcasting.
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June 25, 2005
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Open(x2) Letter to the Editors of the LA Times on Wikitorials
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A Slew of Articles from INDICARE
INDICARE (The INformed DIalogue about Consumer Acceptability of DRM Solutions in Europe) has a number of interesting articles regarding the copyfight from a European perspective: - Copyright - Complexity - Confusion - An interview with Till Kreutzer [German], editor of iRights.info [German] and a lawyer and partner in the "Office for Information Law Expertise" in Hamburg.
In fact I think that the basic approach of copyright needs rethinking. - Personal Feelings About the Creative Commons Licenses - by Dr. Péter Benjamin Tóth, legal counsel at the Hungarian musical collecting society ARTISJUS [Hungarian] and a member of the Hungarian Copyright Expert Group.
For me, there is something fishy about the idea of Creative Commons (CC). The hawkers of this "solution" present the very nature of classical copyright as an alternative solution. And they forget to inform the creators about the side effects. - Contractual Balance in Digital Content Services - by Timo Ruikka, Vice President, Industry Initiatives at Nokia’s technology platforms unit.
Alongside copyright balance, the question of contractual balance will gain in relevance as consumption and contract practices change with the evolution of new services. Using the analytical distinction of "consumption use" and "copyright use" the paradigm shift is demonstrated between the "legacy model" of book/CD purchase and new services like iTunes music store and 48-hour online "video rental" services. Admittedly the new focus on contracts goes together with new challenges.
There are many more articles of interest at INDICARE and be sure to check out the INDICARE Blog.
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Fred's Friendly Fathomable Guide to the Grokster Decision
EFF's Fred von Lohmann provides a reader's guide to the Grokster decision (Grokster Reader's Guide). Main Event #3: Inducement? There has been much talk about whether any such thing as "inducement liability" exists in copyright law and, if it does, what its scope might be. Justices Ginsburg and O'Connor asked several questions about the idea during the oral argument; Justice Scalia expressed skepticism. Don Verrilli, arguing for the entertainment industry, said that inducement liability would not be enough to address the concerns of copyright owners. What will the Court have to say about this uncharted territory? via Copyfight UPDATE 1405PT Scrivener's Error also has some suggestions on reading the decision ( A Short Reminder About Grokster).
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Hacking the Anti-Flag Burning Amendment
Law Prof. Michael Froomkin is hacking the anti-flag burning amendment before it has even passed (Flag Desecration In Every Day Life). He received a new credit card in the mail that had an image of the US Flag on it. Wouldn't want to desecrate that by putting it in your wallet and sitting on it all day long, would we? So Michael gave the credit card company a call: Me: We received our new credit cards today. They have a picture of the American flag on them. I don’t think this is an appropriate use of the American flag. The card will get dirty, it will have stuff run over it, this will amount to flag desecration. It’s not right. Female voice (after slight delay) : would you like to speak to a supervisor and see what he can do for you? Read the whole humorous thing. This gives me a thought. Why not write a bunch of companies and complain about their use of the US Flag and your fear of being held guilty for the crime of desecrating the flag through use of their products (conveniently cc'd to your Senator)?
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RIAA: Efficiency Increases, Must Be Due to Pirates
The Listless Lawyer isn't too listless to notice the RIAA's shady use of language (The RIAA Lies… Well, Nobody Dies, But It’s Still Pretty Dishonest). According to a recent piece in the Washington Post, the RIAA has found a new way to continue claiming (against the evidence) that they are being killed by file sharing: focusing on “shipments”, rather than sales or profits. [link in original] Listless then references Begging to Differ ( For Shame). The magic word is "shipments". Have a look here. Music retailers tightened up their ordering methods using a system called SoundScan that tracks CD sales on a per-disc basis. This greatly increases efficiency -- a clearer picture of demand means fewer unsold albums have to be returned to the label. Yes, fewer discs are being shipped, but sales are up. Revenues are, too -- although of course that was bitten into by the industry coming to a large settlement over price-fixing. [link in original]
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What Advertisers Fear: Deliberate Inattention
Doc Searls has a good post on IT Garage about deliberate inattention - ignoring things we don't want to waste time on, such as advertisements (AdTension). The holy grail of advertising is to add, rather than subtract, value for the people who consume it: to create a demand market for itself. Read the whole thing.
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June 24, 2005
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Goldman on Copynorms: Is Infringement Theft?
Eric Goldman notes a news report on a study that found the British didn't equate copyright infringement with "theft" (Is Copyright Infringement "Theft"?). If this attitude holds true in the US as well, it would represent a colossal failure of the movie/music/software PR machine. For years, the copyright owner groups have tried to shape public perception of copyright infringement by using value-loaded words to describe infringement: "pirate," "theft" and "just like shoplifting" are among the standard lingo of the lobbying/PR efforts. Yet, to the extent Americans can distinguish copyright infringement and "theft"/"shoplifting," then a major axis of the copyright owners' efforts will have failed. Goldman then considers some of the implications and the effect of copynorms, though he doesn't use that term. He also points to a paper of his I'll have to read when I get a chance: A Road to No Warez: The No Electronic Theft Act and Criminal Copyright Infringement. Despite the extended criminal boundaries, a review of the post-passage developments suggests that the Act has been unexpectedly ineffective. To fully understand why, this Article focuses on a group of infringers known as warez traders. While Congress did not specifically reference warez trading in the Act, warez traders were its prime target. Yet, Congress did not fully understand this sociological group or their motivations, resulting in a law poorly tailored to conforming their behavior. But in drafting a broad law to cover warez trading, the Act overstates the harm experienced by copyright owners. This expansive standard for harm covers activities necessary to function in a digital society, unnecessarily turning too many average Americans into criminals. Corrective legislation is required to more precisely distinguish between truly culpable behavior and socially beneficial conduct.
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Crawford's Notes on the History of Telephony
Prof. Susan Crawford is doing something that I've always wanted to do: delve deep into the history of telephony. Good stuff ... hope she uses her blog to keep her notes (Telephony and We're Keeping Guard Over Your Loved Ones). In advertisements spanning the years between 1907 and 1958, the Bell System used emergencies as a key sales point to get people to buy telephones. Much of the usefulness of the telephone, as advertised, was that it was there, that it was watching over you. You weren't so much interacting as being guarded. The telephone, that magnificent instrument, was silently keeping you safe. .... The ties to the E911 controversy I've been focusing on are obvious. An important part of joining the telephony network was gaining the ability to tell other people when you were in trouble. [emphasis in original]
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Five Unintended Consequences of Podcasting
Rex Hammock has completed his excellent series, How Apple Will Change Everything About Podcasting, with a post about Five Potential Unintended Consequences of iTunes Embracing Podcasting. The post punctures the podcast bubble just a bit, pointing out some of the negative possibilities of major corporations jumping in so quickly. Read the whole thing. But the best part of the post is the postscript. In an earlier post, I listed several types of podcasts formats/programming/content I thought could catch on. That post led to lots of e-mail and trackbacks with some great ideas. Alot of them were related to classroom recordings and educational/training audio. Several people e-mailed me suggesting that sermons would be great podcasts -- as the son of a minister, I agree. Some folks e-mailed me to say there are already tour-oriented podcasts and I even received an e-mail from my friend Ellen Pryor at Nashville's Frist Center for the Visual Arts saying the museum was jumping into podcasting. The point is, with the new tools to create audio files, Odeo, for example and a plug in for my favorite software, NoteTaker or popping a Griffin iTalk onto your iPod, or using tools like Garage Band, it's just a matter of time, folks. Get ready. [italics in original]
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Seventh Cir. Decides Against Student Newspaper's Freedom of Speech
Media Law Prof Blog reports on an important college newspaper free speech case (Seventh Circuit Decides Hosty: Finds Against Student Journalists). In a 7-4 decision, the majority opinion written by Judge Easterbrook, the 7th Circuit has found in favor of appellant Patricia Carter and Governors State University, and against the student journalists who objected when, in 2001, Dean Carter told the student newspaper's printer to hold any issues she had not okayed in advance. The students objected that her actions violated their right to free speech and sued both her and the university.
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EEJD Roundup on Community Broadband Act of 2005
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A Vision of PR's Future
Brother Michael O'Connor Clarke, on Flackster, has a vision of the future of PR (Minor Epiphany?). Much gnashing of teeth and tearing of hair in the PR world over how the practice of public relations must evolve to tune into the rise of citizen's media. Perhaps the answer is much bloody simpler than we all thought: The necessary evolution of PR is blogging. That's all. No more news releases, no more pitches, no more one-to-many media relations.
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Pre-Grokster Weekend Reading
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EFF on 18 USC 2257
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Enforcement of 18 USC 2257 Held in Abeyance
WIRED reports that the government has agreed not to prosecute members of the Free Speech Coalition for violating the anti-porn regulatory provisions of 18 USC 2257 (Online Porn Dodges Major Bullet). Chances are the government won't prosecute anyone until the lawsuit is settled one way or the other, or at least one would hope. 18 USC 2257 is a bad, bad law for free speech.
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Give Michael Kinsley YOUR Answers
Radio Open Source will be interviewing LA Times Editorial and Opinion Editor Michael Kinsley this coming Wednesday, June 29 (Wikitorials). Among the topics, natch, will be wikitorials and Radio Open Source is soliciting your answers (what is this, Jeopardy! or something?): We’d like to give Michael Kinsley YOUR anwers to these questions:- What 3 suggestions do you have for making wikitorials work?
- What 3 other online tools/techniques would you use to improve the editorial and op-ed pages of your newspaper?
So, just go to the post and submit your answers. For more on wikitorials, including my prediction that was amazingly prescient, see Wikitorials: A Dubious Idea from the LA Times and Wikitorial Post Mortem.
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Doctorow on Feinstein on the Broadcast Flag
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100th Anniversary of Pittsburgh's First Movie Theater
Earlier this week, the Pittsburgh Post-Gazette celebrated the 100th Anniversary of the movie theater (You Saw It Here First: Pittsburgh's Nickelodeon Introduced the Moving Picture Theater to the Masses in 1905). The claim isn't true, as the article notes, but the article is worth reading to get a better understanding of how a new medium is adopted by the public. There are the obvious social issues: Social activists grew worried about children spending too much time at the movies, because of their violent and sexual themes. Some were afraid of the immigrant labor pool attracted to the silent films -- which didn't need to be in English to be understood -- and others feared the idea of women in dark rooms mixing with strange men. As well as interesting notes about what films were shown: Typically, the show would include a stop-action film called an "actuality," showing something like a flower growing or a building getting demolished; a film of an exotic country such as China, called a "scenic"; plus short comedies and melodramas.
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Democratizing Video Distribution with DVDs
My last post, Clearing Rights for a Mad Hot Documentary, was the difficulties that independent documentary makers have in clearing rights for the visual and audio works that appear (even exceedingly briefly) in their films. Earlier this week, the LA Times wrote about the boon that DVDs are for independent filmmakers distributing their wares (The DVD: Democratizing Video Distribution). Small filmmakers can go direct to DVD, bypassing studio gatekeepers and the relatively high costs and limited returns for arthouse distribution. Though the article doesn't mention it, this makes a lot of sense given recent surveys showing that DVD and the home theatre is the preferred means to see films for an increasing number of people. Especially given the inconvenience for vast swaths of America to see a very limited run arthouse release, DVD more than makes sense. But getting back to the question of clearing rights: In it [the film Tarnation], Jonathan Caouette creates a portrait of a dysfunctional American family through a psychedelic mélange of snapshots, Super 8 home movies, answering-machine messages, and snippets of pop culture. Bringing the audience inside his head, the director's goal, required only $218 — the cost of videotape and photocopies. (That sum, however, rose to $500,000 after the visual quality was upgraded and rights were cleared for "Tarnation's" theatrical release.) It isn't clear how much of the $500,000 was for rights clearances and how much was for upgrading visual quality, but I'm sure the rights clearances would be more than your average joe could afford. Again, I say, the costs of production are going to continue to decrease. Increased scope for fair use and reduced clearance costs need to follow. via CinemaMinima
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Clearing Rights for a Mad Hot Documentary
Two great posts on fair use and clearance rights on the Stay Free! Blog. The first is an interview with the director of the favorably-reviewed documentary Mad Hot Ballroom, which is about public school kids in ballroom dance competitions. The interview goes into many of the headaches that citizen creators face if they want to distribute video of scenes of real life (How did Mad Hot Ballroom Survive the Copyright Cartel?). [W]e had to watch out for billboards and Frito-Lay trucks all the time. But I usually didn't care, we would just shoot. The biggest danger with clearances is when they interfere with documenting real life. Something spontaneous like a cell phone ringing is different than a planned event. If filmmakers have to worry about these things, documentaries will cease to be documentaries! What happens when the girls go shopping and there's music playing in the stores? We were lucky because in our movie the music wasn't identifiable, but otherwise what are we supposed to do: walk up to the store manager and say, "Excuse me but can you turn off your radio?" The follow-up post is a ringing argument in favor of pushing fair use rights, though, being the risk-adverse type that I am, I certainly couldn't recommend it ( Fair Use: Use It or Lose It). It cost $140,000 to clear rights for the documentary, about 45% of the cost of making the film. The costs of production are going to continue to decrease. Increased scope for fair use and reduced clearance costs need to follow.
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Reason's Nick Gillespie on the Copyfight
Neofiles interviews Reason Magazine's Editor-in-Chief, Nick Gillespie, on a variety of issues relating to libertarianism (Right On!). The article is a good look at a more nuanced vision of libertarianism then some may be familiar with. The article is a worthwhile read just for that, but about half-way through there is an extensive discussion of intellectual property rights and libertarianism. Very good stuff. Recommended. For libertarians specifically, I suggest remembering that the question about IP is not, first and foremost, about "property rights." It's really an issue about maximizing output and innovation and minimizing restraints on expression. via Hit and Run, natch
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Broadcast Flag Threat Greatly Diminished, For Now
As previously feared, the Broadcast Flag was not introduced as an amendment to an otherwise-unrelated appropriations bill. (C|Net News | Senate Punts on Broadcast Flag Option). EFF has more and thanks their supporters (The Flag Dies -- Again). Will there be other sneaky attempts to get the Flag into law? Of course. That's what lobbyists are paid to do. As a friend in Washington said, "It's that whole eternal vigilance thing, I'm afraid." But the hotter the topic becomes, the harder it becomes for Hollywood to push. And as time goes on, and more and more Americans have digital televisions and other media devices, the angrier they'll become if what they're accustomed to -- time-shifting, open-source media software, and fair use -- is threatened. Dan Gillmor also applauds the demise (for now) of the broadcast flag ( Broadcast Flag Not in Federal Legislation).
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June 23, 2005
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Study: PVRs in 50% of US Homes in 2009
Ed Bott points to a study that finds that despite tremendous growth, PVRs (aka TiVos) won't be in 50% of US homes until 2009 (PVRs Won't Hit the Mainstream for Years). If you own a TiVo, or a Media Center PC, or a PVR from your cable company, you're part of an elite. A new research report from Accenture says that the percentage of U.S. homes with personal video recorders will increase by 500% in the next four years, but even in 2009 more than half of U.S. homes still won't have the equipment to record, pause, or time-shift TV. Read the whole thing. Of course, that means there are quite a few more years before we're all watching broadcatches.
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Clear Channel to Launch 30 Podcasts
DesignTechnica reports that Clear Channel Communications is launching 20 podcasts with 10 more to follow shortly (Clear Channel Radio Goes Podcast Happy). They're primarily comedy/interview/morning zoo shows, but it'll be interesting to see how good they are. Clear Channel clearly gets that this will be an important distribution medium. However, do they understand how to take advantage of it? Is repurposed morning zoo chatter going to be successful? We shall see.
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Closed Satellite Networks
Democracy in Media harshes on satellite for being inherently a closed network (Why Satellite Isn’t Compatible With an Open Network World). Read the whole thing. There is certainly some truth in the claim (i.e., two-way communication is a bitch). And though I'm a fan of open networks, not every network is going to be suited for openness. I'm far from convinced that satellite is one such, but even if it is, it can still play a valuable role in our communications ecosphere. As long as our primary communications are open, closed networks can supplement.
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Creative Commons and the Videogame Webcomic
The Creative Commons Weblog has a nice example of a webcomic that is adopting a Creative Commons license (Fantastic (CC)omic). No biggie do you say? Well, perhaps not, but the webcomic is based on the Castle Marrach videogame. They had this to say: We've got some of our own methods to protect joint creativity at Skotos. In our Terms of Service we define what we call "Participatory Content" and "Public Content". If Creative Commons had been around when we launched in 2000, I think we might have incorporated their licenses instead, to protect the joint work that people do at Skotos. Pretty cool.
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Through the Looking Glass with the MPAA
Constitutional Code has been all over a, at best, misleading, MPAA press release on a copyright infringement raid at a DVD plant in Southern California (Machiavellian Picture Association of America). The MPAA was forced to correct itself, including its estimate of the amount of infringement: The trade group said the $30 million figure was reached by estimating the value of the DVDs that could be produced by the stamping machines that were seized. By that standard I'm capable of hundreds of thousands of dollars of infringement with the couple of DVD and CD burners I have. Of course, we're supposed to, you know, believe the MPAA when they make claims about the damages they suffer from copyright infringement. "When I use a word," Dan Glickman said, in a rather scornful tone, "it means just what I choose it to mean - neither more nor less." "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Dan Glickman, "which is to be master - that's all."
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Evolutionary Reasoning
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Why 18 USC 2257 is a Bad Thing - Handily Illustrated with Stick Figures
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Duty to Prevent Disclosure of Metadata
Apparently there is now a lawyerly duty in New York to prevent disclosure of client confidences via metadata. Damn! That was often the most interesting part of many documents, the metadata. How else are we supposed to be able to see behind the "blacking out" in PDFs, or discover that an industry association wrote a politician's talking points? Farella Braun & Martel's IP Blawg has the story (Metadata A Client Confidence?).
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Audible Magic's Security Through Obscurity Critized
Ed Felten rips apart the security through obscurity of CopySense, the black boxes promoted by Audible Magic to filter p2p on networks (Content Filtering and Security). CopySense boxes run general-purpose operating systems, so they are prone to security bugs that could allow an outsider to seize control of them. And a compromised CopySense system would be very bad news, an ideal listening post for the intruder, positioned to watch all incoming and outgoing network traffic. How vulnerable is CopySense? We have no way of knowing, since Audible Magic doesn’t allow independent evaluation of the product. You have to sign an NDA to get access to a CopySense box.
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Slater on Mercora's Legal Hacks
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18 USC 2257 Anti-Porn Regs Go Into Effect
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Never Trust Anyone Who Says 'Trust Me'
As part of his Bayosphere project, Dan Gillmor has put forth a "Citizen Journalism Pledge" (Let's Discuss the Citizen Journalism Pledge). It contains a number of unobjectionable bromides (fairness, thoroughness, accuracy, openness) and avoids some awful ones (such as objectivity). But I'm with Jeff Jarvis on this one, I don't really see the need (I Pledge Not To Pledge). A pledge assumes ill will and mistrust, requiring that we promise we won't do something bad. If we're decent and you trust us, we shouldn't have to do that. Read the whole thing.
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Grokster: The Waiting is the Hardest Part
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Summary and Analysis of the Proposed 21st Century Music Licensing Reform Act
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Today in History - June 23
Today is a pretty darn good day as we celebrate the birthdays of two truly amazing pioneers who have shaped the world we live in (particularly with regard to things of interest to this blog): - Alan Turing - Considered the father of modern computing science and played a pivotal role in cracking German codes during WWII. Disgracefully, he was hounded to death by the government due to his homosexuality.
- Vint Cerf - Considered the father of the internet. He played a key role in the development of TCP/IP
Happy Birthday!
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Analysis of the Market for Law Professors
Emory University School of Law Prof. Sara K. Stadler has an interesting paper that is sure to create debate in the halls of the legal academe (The Bulls and Bears of Law Teaching). This Essay provides readers with a unique perspective on the world of law teaching: Employing a quirky methodology, Professor Stadler predicts which subjects are likely to be most (and least) in demand among faculties looking to hire new professors in future - rating those subjects, like so many stocks, from "strong buy" to "weak buy" to "weak sell" to "strong sell". To generate the data on which her methodology is based, Professor Stadler catalogued, by subject, almost every Article, Book Review, Booknote, Comment, Essay, Note, Recent Case, Recent Publication, and Recent Statute published in the Harvard Law Review between and including the years 1946 and 2003. In the end, she found an interesting (and, she thinks, predictive) relationship between the subjects on which faculty choose to write and the subjects on which students choose to write. Fields of interest to me got the following ratings: - First Amendment - Weak Buy
- Intellectual Property - Weak Buy
- Media Law - Weak Buy
- Cyberlaw - Hmmmm [that is the actual rating]
via ContractsProf Blog
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Mighty Talented Legal Academics to Blog Grokster, Brand X Decisions
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June 22, 2005
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The State of Movie Copyright Infringement in Nairobi
CinemaMinima has a report on movie copyright infringement in East Africa (Thanking the Pirates, from East Africa). My point is how the world of Hollywood blockbusters had changed. Even a few years earlier, a city like Nairobi was an “outpost” where blockbusters trundled in after doing the rounds of cinema theatres elsewhere. Now, hey, we felt wired into the global village, after all we saw REVENGE OF THE SITH the same week as Time magazine had it on its cover. Oh — we weren’t hick-towners anymore. [links, emphasis in original] Read the whole thing.
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How Not to Advertise to J. Bradford DeLong
J. Bradford DeLong doesn't suffer fools gladly and he was anything but glad about Microsoft, McAfee and Epson (Life on the Hinterweb). I don't like it when strange movies take over my computer and use it to display adware. I don't like it when Epson lies to me about the quality of Epson-compatible inkjet cartridges. I don't like it when McAfee makes it hard to avoid spending more on virus protection than I need to.
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A Handful of Wikitorial Posts
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UK Parents Ignore Videogame Ratings
The BBC News reports on a study in the UK that found parents ignored videogame ratings when purchasing games for their children (Parents 'Ignore Game Age Ratings'). A study commissioned by the UK games industry found that parents let children play games for adults, even though they knew they were 18-rated. Although the study was in the UK, I imagine similar results would be found in the US. Of course, this will just encourage our public nannies to cry out for legislation so that parents don't have to, you know, actually parent. Parents in the UK seem more concerned with the amount of game play, rather than the type of game. I'm not sure that is a wrong attitude. via Techdirt
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A Loss of Order
Terry Heaton has another great essay on his Donata Communications website about the future of news journalism (TV News in a Postmodern World). There is one group who could slow this down, of course. They are the keepers of the status quo — the lawyers of the land. And given that institutional lawmakers are mostly lawyers too, well you get the idea. In the end, one has to believe that the people will win, even if it means voting every lawyer out of office. Revolution is like that. [emphasis in original] Read the whole thing.
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How to Ensure More American Flags Are Burned
Ronald Coleman points out the obvious and expected result of passing an anti-flag burning amendment: Flag Burnings Increase Dramatically. How many reported flag burnings were there last year in the US according to an anti-flag burning group that tracks such things? One. The idiocy of those fostering this unpatriotic amendment is staggering.
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A Dirge for Real
Jeff Louella discusses the rise and decline of Real Networks (The Rise and Fall of a Revolutionary Company). The application that changed me in so many ways seems to be dying a slow painful death. The company that once revolutionized the internet, is now on its way to becoming a penny stock. I wish Real Networks well and want them to know that they have changed my life forever. And for that, I will always be grateful. via Om Malik
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INDICARE on Subscription vs. Download
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Templeton on the Storage Box in the Closet
Brad Templeton calls for storage in the closet (Network Storage on the Cheap for the Home). So I want to call for the production of a cheap home external storage box. This box would have slots for 4 or 5 drives and cooling for them, ideally as big a fan as possible to keep the rpms and noise low in the desk model, and an even more powerful fan in the basement model. The desk model might have sound insulation though that’s hard to combine with good cooling. This isn't far removed from what I call the "server in the closet" ( Intel on the "Server in the Closet"). The only difference really, is making the thing a server to handle communications with the outside world as well. Perhaps my dream is coming closer to reality?
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California Bill Would Regulate Gov't Use of RFID
The LA Times has an article on a proposed state statute regulating government use of RFID for tracking people (Not Letting Chips Follow Where They May). The basic concept is probably a good idea, but I'm not really sure that this legislation is the best way to go about it: Rather than an across-the-board ban, the amended bill would forbid state and local governments from mandating radio-frequency ID technology in driver's licenses and in student ID, health insurance and public library cards. The bill would not limit private industry use of the technology. With a few exceptions, governments could use the technology in other forms of identification so long as they included at least three protections, stipulated in the amended bill:- They must make sure the information is disguised with a unique identifier. A person's name, address and birth date, for example, would be represented by a number.
- State and local governments would have to encrypt that unique identifier or scramble it in some way so that only a person with a code could link the identifier with the original information.
- The cards must not transmit information to a reader until the machine verifies, perhaps using a secret password, that it is authorized to accept the data.
The technical safeguards don't seem to make a lot of sense to me. The bill is California SB682.
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Broadcast Flag Hasn't Snuck In Yet - Danger Hasn't Passed Though
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Cory Doctorow's Latest Novel Available for Free Download
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June 21, 2005
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CoCo on 18 USC 2257
I'm not the only one. Constitutional Code is also concerned about the threat to free speech from 18 USC 2257, the pornography paperwork regulation statute (Online Anti-(Child) Pornography Rules to Take Effect). Both the scope of the proposed rules and the likeliness of an anti-pornography agenda using such an important and delicate subject as anti-child pornography regulation, is troubling. By pushing pornography in the realm of child-pornography the needed subtlety for an effective, constitutional enforcement gets lost in the crudeness of generalization. This is a really bad law. More from MetaFilter ( This Whole Post is Probably NSFW...).
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Beware the Blogarazzi
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EEJD on Grokster's Middle Ground
In more pre-Grokster anticipation, EEJD endorces the "active inducement" test for secondary liability in copyright (Middle Ground in Grokster). One middle ground approach would be for the Supreme Court to balance Sony's "substantial noninfringing uses" test with an "active inducement" test, similar to the existing secondary patent infringement regime. The Court borrowed from patent law before in Sony, and thus could do the same in Grokster. For what it's worth, a strong active inducement test, as in patent, wouldn't be a bad outcome.
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Point and Snap Advertising
WIRED reports on an interesting technology that is being rolled out for porn, but I think has some potentially interesting marketing possibilities (Porn Stores Turn Into Clip Joints). Vivid Entertainment, one of the leading suppliers of adult entertainment, has licensed a system that will let shoppers preview racy trailers on their camera phones just by scanning the bar code on the box. Now that's handheld entertainment. I'm not sure why this should be limited to pornography. Why not bar codes on movie ads in newspapers, magazines, or the street? You could download clips of the movie, of course, but why not ring tones? Screensavers? Minigames? People would actually look at the advertisements. It wouldn't be limited to movies, either. You could do it for music, television, videogames ... basically any sort of mass produced content. There could be special codes for Happy Meals. What can I say? I like the idea. Cellphone companies should too.
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The Daily Patry - Independent Creation
Another day, another link to the Patry Copyright Blog, which should be required reading in law schools and law firms across the land. Today's lesson: independent creation and its use as an infringement defense (Independent Creation: A Bulwark of Copyright). One way independent creation is threatened is procedural, the misdescription of it as an affirmative defense. It is not; it is instead a denial of copying. Read. Learn. Become wise in the ways of copyright.
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Happy 20th Birthday Nick at Night! Hope You Don't Have Too Many More
TV Squad wishes Nick at Night happy 20th birthday (Happy Birthday, Nick at Nite). The grandad of rerun TV turns 20 on July 1st. I hope we won't be celebrating their 30th. It's not that I don't like Nick at Night - I wish I had more time to enjoy its soothing shows - its just that I hope that ten years from now we won't have to wait for a broadcaster to show us a rerun. I hope that reruns will be readily available for download via broadcatching. If this happens, there still be room in my heart for a Nick at Night playlist.
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More Details on Latest CD DRM
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Report: Extensive Internet Censorship in Iran
John Palfrey announces that the multinational Open Net Initiative has released its report on internet filtering in Iran (Iran Internet Filtering Report). We at the OpenNet Initiative released our study on Iran today. Of the states that we have studied, Iran has one of the world's most sophisticated Internet censorship regimes. Iran has demonstrated its commitment to extensive Internet filtering through the targeting of weblogs, particularly those written in Farsi, the local language. The state blocks political, religious, and cultural statements on a range of topics from being written and seen online. Read the 29-page report: Internet Filtering in Iran 2004-2005 [PDF].
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Freakonomics Meets P2P
Interesting alternative compensation scheme on p2pnet.net (PayPal and the RIAA). Definitely worth a read. I'm not sure how it would work under the current legal regime, but it would be interesting to see someone give it a try. One of the big problems I see is that no one can really threaten to take the bagels away completely. via GrafoDexia
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Why Store All That Data Just So It Can Be Stolen?
In response to all the recent news over data theft, Ping Identity VP Eric Norlin has an op-ed in C|Net News (The Red Herring of Data Protection). This isn't really a question of data loss, data protection or data safeguarding. That, my friends, is a red herring. The real question is why corporations need to store all of this personal data in the first place.
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Blast from the Microsoft Antitrust Trial Past
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Seth F on Blizzard v. BnetD Oral Argument
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A Typical Joe on the Future of TV
A Typical Joe on the future of television (Goodbye Network TV; Hello We TV). I spent 12 years working in community media production. The problem wasn't the talent or the creativity. It was the time, money and complexity. Each of those is being addressed. If the media industry keeps it up, they'll force us away from the 6 hours we spend in front of the TV. And we'll use those hours instead, making our own. Nice, short little piece.
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TV Producer Gets Paid for Product Placement, Not Network
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SF Gate Starts 'Culture Blog'
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DRM Mucking Things Up
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June 20, 2005
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No Trademark for Clear Containers?
Over on the Technology & Marketing Law Blog attorney John Ottaviani notes that the Federal Circuit affirmed, per curiam, the Trademark Trial and Appeal Board, which had denied Pennzoil's attempt to trademark a clear motor oil container (Federal Circuit Refuses to Register Pennzoil's Clear Motor Oil Bottle as a Trademark). In this case, the most damaging evidence to Pennzoil’s position that the clear container is not functional is that Pennzoil introduced its clear container after it determined that there was an obvious competitive advantage to displaying the colorization of its synthetic oils and blends in a transparent bottle. Because there were numerous non-reputation related reasons for adopting a clear container, and these were competitive reasons that should not be denied to Pennzoil’s competitors, the Board found that Pennzoil did not have a right to appropriate the use of a clear container exclusively for its motor oils.... Will this decision have implications for other products that are marketed in clear packaging and containers? The Board was careful to note that it did not want to set out a per se rule about whether or not there may be other circumstances under which a clear container could function as a source indicator. However, I cannot think of an example where a clear package would both be non-functional and have acquired secondary meaning. At least for now, then, the world is safe from those who would require us to purchase all of our products in opaque containers and packages. Read the 28-page Board decision: Texaco Inc. v. Pennzoil-Quaker State Co. [PDF]
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Waiting for Grokster
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Download the Blizzard v. BNETD Oral Argument
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Study: DRM to Be Booming Business
The Hollywood Reporter takes note of a study claiming DRM is going to be a booming business (Study: Copyright Protection Biz a Sleeping Giant). An exhaustive new study is estimating that the digital rights management industry will grow from $600 million worldwide in 2004 to $1.9 billion in 2009. After all, digitally delivered media that's so popular nowadays needs protecting. What an unproductive waste of resources. via PaidContent
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Study Looks at US Attitudes Toward Filesharing
P2Pnet.net reports on a recent study about American attitudes towards P2P (Americans Split Over File Sharing). US public opinion is divided over p2p file sharing, says a new survey of a random sample of 1,062 Americans conducted last month. Forty-five percent say file sharing services should be outlawed while 39% say they should be allowed, states Digital Life America, a research program launched by Solutions Research Group in Toronto, Canada. The article goes on to break down some of the distinctions based on age (younger people are more in favor of keeping P2P legal) and other characteristics.
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Kiss Me, I'm an Avatar
New World Notes has an amusing story of a virtual/real life love story (with a business specializing in erotic animations) (Making Love). “We stood toe to toe and I wrapped the animation to our bodies,” says Phil. He had to modify the animation to make all the body parts come together just right. He also worked on making it more passionate, with his fingers tracing up her back, his granite body pressing ever more closer into hers. Recounting it now, he laughs. “Every time I tweaked it I got an ‘Oooh’ out of her. Was a ton of fun.” And though this kiss really only involved a depiction of their two animated characters together onscreen, he says, “[T]he first Second Life kiss was awesome and special. Just as special as the first in real life.” Read the whole thing.
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Geist on Canada's New Copyright Bill
Ubercanadiancyberlawprof Michael Geist on Canada's proposed new copyright law (Canada Introduces New Copyright Bill). There is simply no denying that the lobbying efforts of the copyright owners, particularly the music industry, have paid off as they are the big winners in this bill. The bill focuses almost exclusively on creating new rights for this select group including a new making available right, legal protection for technological protection measures, legal protection for rights management information, the ability to control the first distribution of material in tangible form, new moral rights for performances, a reproduction right for performers, and an adjustment in the term of protection for sound recordings....Anyone who has followed copyright reform history will not be surprised to learn that individual Canadians are the big losers today. Of course.
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Sen. Schumer Wants to Block Sales of Violent Videogame '25 to Life'
Rather than expend effort on something productive, Senator Chuck Schumer (D-NY) prefers to posture against violent videogames (NY Daily News | Violent Game Furor). "[25 to Life is] the worst in a series of violent and gruesome games that lower the common denominator of decency," said Sen. Chuck Schumer (D-N.Y.), who is trying to block the game from hitting stores in September. One wonders why a Senator wouldn't leave the protests to some other organization or, in the alternative, try to pass some legislation. You know, because he's a Senator. More here: GameDailyBiz | NY Senator Seeks Ban of "25 to Life".
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Howell Explores Grokster's Potential Outcomes
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Blawger/Blogger Lunch in SoCal
If you're in Southern California and would like to join a great group of blawgers/bloggers, including yours truly, for lunch on Wednesday, do let Denise Howell know (Lunch Wednesday). Don't forget to let me know if you'll be joining us for lunch on Wednesday. Coming so far are me, Ernie, Ernie, Monica, Jeff, and Matt.
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Global UCITA?
Those who have been following cyberlaw for some time remember (generally with dread) the Uniform Computer Information Transactions Act, aka UCITA. Law firm Farella Braun & Martel warns of a global, international version of UCITA, at least as far as choice of venue is concerned (UCITA Redux?). Fast forward to 2005, where U.S. negotiators are meeting this month to seek agreements on jurisdiction as part of the Hague Convention of Exclusive Choice of Court Provisions on Private International Law. While the U.S. State Department hopes to resolve the question of which courts will hear international business disputes, software clickwrap agreements may be a sticking point. With a clickwrap agreement, software buyers implicitly agree to a contract for the sale of the software merely by downloading software or opening up its package, and some stakeholders fear that foreign businesses may be able to insert unfavorable venue provisions into the agreements. Opponents of the current draft of the agreement say it's "a lot like a global UCITA," and presents the same problem of non-negotiated venue provisions. [link in original]
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Expertise in Tween Girls Questioned
This is Australian law, not US law, but Inchoate found quite an amusing passage in a trademark case involving magazines aimed at young girls between 6-13 years ("tweens"). (Girl Power?). From the decision: I am not satisfied that Mr Lindstrom’s evidence in this case can be accepted as expert evidence in relation to the perception of tween girls. It is not based on any identified or specific empiric examinations referred to by him in his material. He claims to be a leading expert with many years of experience, however, the prime nature of this experience is unclear.
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DVD Format Wars in the NY Times
The New York Times has a good report on the ongoing next-gen DVD format wars (Video Marches On, Without a Standard). Of course, if you get stuck on the losing side it will most likely be illegal under the DMCA to copy your pre-recorded content from the losing format to the winning one. That's gotta be helpful to the consumer electronics' industry, hasn't it?
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Marybeth Peters to Testify on Music Licensing Reform
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Godwin Laments the Limited Scope of the Original Godwin's Law
Godwin's Law states simply that: As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one. Well, Mike Godwin now regrets limiting the law to online discussions. Referencing recent Nazi comparisons in the news, Godwin writes, ( The Daily Show and Godwin's Law) I probably should have crafted Godwin's Law early on so as to cover more than online discussions -- but I don't think it quite occurred to me back in the late '80s and early '90s that public debate in all media was going to descend to the lowest common denominator. I may have been hoping the online world would turn out to be a special case. [emphasis in original]
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Violating the DMCA to Make Home Movies
JD Lasica continues his excerpts from Darknet: Hollywood's War Against the Digital Generation with a piece from Chapter 7 in which an executive from Intel attempts to educate a number of clueless Washington types about the difficulties with DRM (Story: The Tech Exec Who Broke Federal Law (and Why the Law is Broken)). The best part is when the exec shows a homemade video clip, that could only be made by breaking the law: Whiteside explained how the homemade DVD came to be. His nine-year-old son Timmy played on a Pop Warner team called the Typhoons, and Whiteside spent the better part of a football season capturing images of the action with his digital camcorder. At long last Whiteside culled together the highlights, imported them into his PC, and began creating his digital masterpiece. “I used a program to copy a few seconds from the DVD of the movie Rudy,” he said. “It’s the scene showing the final game of the Notre Dame season with Rudy’s family in the stands cheering wildly when he got to play. I then spliced in some snippets of pro players doing a touchdown dance from NFL Films, and I overlaid it with audio from ‘Who Let the Dogs Out?’ "I stitched this all together with video of my son, and it turned out to be the piece of home video that gets watched the most in our house. When relatives or members of the football team come over, we pop it in and we just laugh. The added scenes and music really bring it all to life.” Not only did making the home movie violate federal law, whoever provided the means for circumvention of the DVD's DRM also violated federal law. Read the whole thing.
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Amazons 'Copy Protected CD' Label Not Good Enough Says CoCo Blog
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Video or Text?
As citizens' media continues to grow and spark changes in old media, creating a new ecosystem of information, some are still dismissive (Forbes | Citizens Media Entrepreneurs ). It all sounds great--but I predict most citizens media sites will fizzle unless they take America's pathetic literacy rate into account. According to the National Institute for Literacy's Web site, only half of Americans aged 16 to 65 are literate enough to succeed "in today's labor market"--and that research was published in 2002. Are Americans better readers and writers today? I doubt it. I agree with Citizen Paine, who sees other forms of media as important, but text remaining critical ( Are Video and Audio Critical to a Site's Success?). Bottom line: Incorporate all media, but don't underestimate the value of text as a means of making the user part of the conversation. I definitely would not underestimate text. It is and will remain one of the best ways to transmit information.
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Hey, That's My Handbag (Design)!
Good article in the New York Times on small fashion creators and how the big manufacturers knock off their designs (That Looks Familiar. Didn't I Design It?). How creativity and intellectual property work in the fashion industry is fascinating and this article provides some of the reasons why. I particularly like the conclusion: Many designers adapt by simply withdrawing from the public eye. After a particularly traumatic knockoff experience, said Amanda Keidan, a jewelry designer in New York, she did just that. She now primarily designs jewelry for private clients. Not Ms. Dreyfuss, however. She says she has added a larger bag with a circular handle to her collection. In the next few months, she said, she will invest much time marketing her latest creation - and not worry about possible knockoffs.
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Canadian Politicians Answer Questions on Copyright
Russel McOrmand wrote to some potential political candidates in Canada about their views on copyright and has actually gotten non-form-letter-looking answers from two (Ottawa Centre NDP Nomination Candidates Write on Copyright). Hi Russell, thank-you for bringing Lawrence Lessig's trenchant article to our attention. Copyright is a fascinating area and one that needs our immediate attention. What is transpiring in Brazil is not that much different from what many media and communications workers face here in North America. Witness JonathanTasini taking on the New York Times and Heather Robertson's $100,000,000 class action suit against Thomson Corporation. Writers want to be in the position to choose whether or not their work is reproduced, whether verbatim or in derivative form, and they certainly want fair remuneration.
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What Should the Purpose of Public Broadcasting Be?
Jeff Jarvis discusses the ongoing controversy over severe cuts in the federal budget for public broadcasting and offers his own solutions (Saving Public Broadcasting). I'm not so sure many of them would work, but I do agree that we need to rethink public broadcasting: : Reexamine the mission of public broadcasting in an era when the public can broadcast. : Reexamine the mission of public broadcasting and when cable provides so much more value, like historical and educational programming (and I'm sorry that 11 percent of the country don't get TV via cable but, hey, We really should reexamine the mission of public broadcasting, not only in the context of cable, but in the context of the internet and the coming of broadcatching. Perhaps we may want to figure out how to democratize distribution, rather than subsidize flawed distribution schemes.
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Patry on the More Discerning Observer Test
William Patry on the More Discerning Observer Test. Basically, what do you do when the two copyrighted works being compared both have large amounts of public domain materials in them. These are fascinating questions and much more difficult to deal with theoretically (and practically) then it may seem. I get lost contemplating various empyrean realms.
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June 19, 2005
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Grokster Predictions
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Winning on Appeal in the Court of News Judgement
Jay Rosen has a very good post about how the Downing Street Memo has finally made itself known in the traditional press and what this says about traditional notions of news judgement (The Downing Street Memo and the Court of Appeal in News Judgment). The very interesting conclusion: I don't think the press has learned how to deal yet with "power shapes truth," or the extreme contempt for reason-giving the Bush Administration has shown on matters of war and peace. For example, in judging whether a story deserves further play the press will ask, "were the facts in it previously reported?" (a news test) rather than asking: having the facts in it been successfully denied at the top? (which is a power-shapes-truth question.) Ultimately this confusion helps explain the original judgment that the Memo was not news, and the success of the appeal. [emphasis, links in original] Read the whole thing. The only note I would add is that it seems that blogs on both sides of the debate play a role in every story that wins on appeal. When blogs on one side feel it necessary to respond to the other side or, as in the case of Trent Lott, both sides agree, then you've probably got a story that should win on appeal.
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The Darknet Dance
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Investment Horizons for Copyright
The New York Times reports on a study finding that most investors do not look farther than five years down the road, even when trying to take into account the long term (Looking Long Term? Get Your Glasses). Now, these are stock market investors, but one wonders how applicable this might be to copyright, whether or not creators or publishers are incentivized by lengthy copyright terms. Did Disney create the Mouse because of the profits he thought it would realize through 2023? Or was he incentivized to create the Mouse because of the profits he thought he could make the first few years after 1928, when Mickey was introduced to the public?
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Mixtapes, Playlists, Culture
In From Mixtape to Playlist, Derek Slater wonders about the potentials for social recommendation tools for music. My hope is that these burgeoning taste-sharing tools can help restart a conversation about how technology can unleash a richer musical culture. We should be celebrating what technology can do for music. Who could object to consumers enjoying music more, enjoying a greater diversity of music, being more creative, engaging music more deeply, and coming together with each other because of music? That's the positive vision I'd like to explore in relation to these tools.
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June 18, 2005
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Podcast Games
The Shifted Librarian points to an "audio literature trivia game": Who Said? (The Perfect Podcast for Librarians). Every other day or so, I'll make an audio recording from a novel. It will be short passage, always something a character says. Your task will be to guess the character, book and author. Lots of good marketing opportunities here, I think.
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Getting Municipalities to Approve IPTV
Techdirt has a nice collection of links regarding the many outdated state requirements that every municipality must approve the provision of television services in their communities (IPTV Saga: Verizon Sticks With Good Ol' Lobbying, Adds Cash Incentive). Can we get some regulation not designed for the 1800s around here? Is that too much to ask? Instead of making life difficult for television providers these cities would be better off figuring out how they're going to replace cable tax revenues when broadcatching takes off.
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More on the FCC's VoIP and E911 Order
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History of the Starbucks Siren
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June 17, 2005
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More on Wikitorials
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Letter Sent to Congress Opposing Broadcast Flag
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WIRED on Anti-Pornography Regulation
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LA Times Wikitorial Experiment Begins
The LA Times "wikitorial" experiment has begun (Welcome to the LA Times Wikitorial Page). This is an experiment in using wiki, a relatively new form of Internet interactivity, to bring readers into the process of forming and expressing editorial opinions. "Public Beta" is just a euphemism for "We're just trying this out. Please forgive any problems and give us suggestions for improvement." Quite a few edits have been made so far. We will see how it goes. Previous story: Wikitorials: A Dubious Idea from the LA Times.
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The Patry Copyright Class Continues
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Warner Bros. Demands Dutch ISPs Violate User Privacy in Order to Get Licensing Deals
Constitutional Code reports a disturbing demand from Warner Bros. to Dutch ISPs (Warner to ISPs: Content for Names). During a seminar on "online piracy" in the Netherlands last week a representative of Warner Home Entertainment made it clear that Internet Service Providers won't get movie content licensed, unless they provide the indentifying information of their customers on demand.
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June 16, 2005
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Birthday Cakes are Nature's Way of Telling Us to Reform Copyright
BoingBoing passes along a story about how a bakery is now refusing to produce edible images for cakes that come from outside sources, presumably due to copyright concerns (Copyright Cops Crack Down on Cooks Over Cakes). It would be funny if it weren't so sad. As Wendy Seltzer notes, "But at the end of the day, no one's rights are threatened by 'unauthorized' cake decorating" (Of Copyrights and Cakes). In any case, perhaps the most interesting thing is the long discussion, in which numerous false statements about copyright law are made that really express the various views people have of what copyright law should be. Concludes Jason Schultz: It is this battle for control that is at the heart of the copyright wars and little else. From the perspective of consumers and fans, characters like Dora have become part of our lives and we shouldn't be ashamed or intimidated from enjoying that fact, even if it involves putting their image on a birthday cake. From the perspective of the Copyright Maximalists, however, even a "Let them eat cake" policy is far too lenient and infringing of their rights. Read the whole thing.
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Switch to DTV Causing TV Manufacturers to Remove Tuners Altogether
Digital TV Design Online reports that television manufacturers are removing analog tuners from their televisions, rather than add digital tuners to them (Tuning Stripped Out of Rear Projection CRT TVs). Why? However, it was later found out that by eliminating all tuning, the sets bypassed the FCC tuner mandate for all TVs 36-in. and above, which goes into effect on July 1st. And, as a bonus, the company will be able to offer the sets at much lower prices. The 57-in. widescreen model " 57HC85 " is priced at $1,599.99 (list), which means that it will sell for about $1,300-$1,400 (street). Apparently this is a trend. Technology360 explains the significance ( Eliminating Tuners): By not having any tuners in their sets at all (e.g., having consumers rely on cable and satellite set-top boxes and on DVRs and DVD players) the manufacturers can lower the cost of their sets. ¶ Impact: even fewer off-air DTV receivers, increasing reliance on cable (and perhaps ultimately on satellite local/local) for reception of broadcast DTV stations.)
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Goldman on Grokster
Prof. Eric Goldman makes his Grokster prediction (Grokster Watch). Supreme Court reverses the Ninth Circuit, but writes a narrow opinion that effectively limits itself to the Grokster facts--thus avoiding broad pronouncements on contributory liability generally or a major recasting of the Sony doctrine. Whatever the Supreme Court rules, I further predict that Grokster--and all of us--lose eventually. Either the Supreme Court reverses the Ninth Circuit or I predict that Congress will reverse the Supreme Court statutorily. Personally, I'd favor a narrow Supreme Court reversal over seeing Congress screw up any effort to draw lines between legitimate and illegitimate contributions to infringing activity.
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Google Print: Not About Reading Books
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DRM Proponent Frustrated by DRM, Again
Jupiter Research analyst and DRM-proponent Michael Gartenberg is once again having trouble with DRM (Microsoft Reader Locks Me Out... Again): Longtime readers will remember the last time Microsoft reader locked me out of my own content. Well, it's done it again. Once again Reader tells me it's activated and updated and once again, I can't access my content. Even more annoying is I should have at least one activation left (even though I activated the new ThinkPad on Fri) and now it tells me there are none left. I sent a note to MSFT PSS last night. Still no activations and still no reading on the new Tablet.
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Murdoch to Buy and Give Away 20 Million DVRs
Slate reports that Rupert Murdoch will be ordering 20 million DVRs to give away to his DirecTV subscribers (Rupert Murdoch Strikes Back). His intention is to shake up the video rental market. I'm not sure how well that'll work, but that's an awful lot of DVRs. Unintended consequences? Unknown markets, perhaps?
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Music: Rent or Buy? The Ongoing Debate
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Trademark Problems for Firefox?
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Due Diligence and Google
Interesting mention of Google in a court case, according to InternetCases.com (Even the Courts Know the Internet is the First Place to Turn for Information). Regarding due diligence by a plaintiff in locating a defendant, a court noted: "[W]e discovered, upon entering "Joe Groce Indiana" into the Google search engine, an address for Groce that differed from either address used in this case, as well as an apparent obituary for Groce's mother that listed numerous surviving relatives who might have known his whereabouts."
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Clear Channel Reveals Own Weaknesses
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June 15, 2005
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Rush Limbaugh: Licensing Holding Podcasting Back
As Jason Schultz says, Rush Limbaugh may actually be "a copyfighter at heart" (Rush Limbaugh: Copyfighter?). Turns out RL is not terribly happy with the music licensing situation for podcasts (Rush Limbaugh Podcast All the Rage): They were righteously indignant and offended and they said, "No, it has nothing to do with that. The cost is prohibitive." I mean there's no system set up for this kind of thing yet. We're away ahead of the curve to do this legally. I can't explain the people that are doing it in a way that we have been told is illegal, and I can't explain why they're doing it, and the fact that they are doing it does not give us the confidence that we could do it ourselves. We have a big legal team that's looked into this. But I just want to tell you we're continually working on it, which at this point simply means monitoring developments in this whole copyright and piracy law. I know the Millennium Copyright Act is what this is all about, and until that's changed, none of this is going to change. In fact I just saw a story in my RSS reader today that Sony is coming out with a new system to copy-protect their CDs. There's software on their CDs that will allow a maximum of three dubs, three copies, and then it shuts down. So if somebody goes and buy a CD, they can copy it three times, but that's it and it's not on all their CDs. It's a new technology that they are embedding in the CDs, and of course the DVD industry has gotten even much tougher than the music industry has, but it's a huge deal and we have looked at it in every which way and that's what we have been told by the legal eagles. Whatever anybody else is doing out there is of no consequence to us. Based on what we have learned anybody else doing this is doing so at risk, and that's as much as I will say about it. His legal explanation is a bit confused, the licensing issues for podcasts don't have much to do with the anti-circumvention provisions of the Digital Millennium Copyright Act, but he seems to want to liberalize it a bit, which would be good. Previous post on Rush Limbaugh and copyright here: Rush Limbaugh to Launch Podcast on June 3rd - No Music Though.
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Technology Companies' Commitment to Freedom
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MPAA to Name HQ After Jack Valenti
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Reporters Without Borders: PressThink One of Best Blogs Defending Freedom of Expression
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Scriban: Big Content is a Cancer on Innovation
In a post about the pre-Grokster spin, Blogaritaville expresses frustration with Hollywood (As Grokster Decision Nears, Hollywood Talks Tough): I grow weary of the Valentis, Rosens, and Glickmans. Their ceaseless calls for government regulation to preserve their business. Their mind-numbing repetition of shamefully twisted statistics "proving" their losses at the hands of "pirates." Their doublespeak usage of terms like "free market." Their threat to cut off your movies and music unless they get everything they want. Big Content is like a cancer on innovation. Either we cut it out, or it will kill us.
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Where's the Guarantee on Schiff's Editorial?
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Australian Federal Court Justice Rips Copyright Term Extension
Justice Ronald Sackville of the Federal Court of Australia, an "old-fashioned, even Luddite" judge, rips into extension of copyright for pre-existing works as well as other expansions of copyright law (Cultivating the Creative Commons). Despite the [US] Supreme Court’s ruling and the willingness of Australian negotiators to accept the position of the US, it is extremely difficult to understand the policy justification for a further extension of the term of copyright, let alone the application of the extension to subsisting copyright. Read the whole thing. via Open Access News
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GAO Issues Testimony Regarding Int'l IP Enforcement
Loren Yager, Director of International Affairs and Trade for the Gov't Accountability Office, has released a report on efforts to protect US intellectual property overseas. Read the 1-page highlights: Highlights of GAO-05-788T [PDF]. Read the 23-page testimony (if you've got nothing better to do): Intellectual Property: U.S. Efforts have Contributed to Strengthened Laws Overseas, but Significant Enforcement Challenges Remain [PDF]. U.S. efforts have contributed to strengthened foreign IPR laws, but enforcement overseas remains weak and U.S. efforts face numerous challenges. Competing U.S. policy objectives may take priority over protecting intellectual property in certain countries. In addition, the impact of U.S. activities overseas is affected by countries’ domestic policy objectives, which may complement or conflict with U.S. objectives. Further, economic factors, as well as the involvement of organized crime, pose additional challenges to U.S. and foreign governments’ enforcement efforts, even in countries where the political will for protecting intellectual property exists. These economic factors include low barriers to producing counterfeit or pirated goods, potential high profits for producers of such goods, and large price differentials between legitimate and counterfeit products for consumers. Nothing particularly noteworthy thay I noticed, but I only skimmed. via beSpacific
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Public Knowledge: Set Hard Date for Transfer of DTV Spectrum
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Barnett Blogs the AALS Contracts Conference
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Yet Another Alarmist Article About Employees Stealing Corporate Data - This Time It's iPods
OHMIGAWD! People are using Apple iPods to steal corporate data, so an alarmist report by "anti-fraud experts" in the Guardian tells us (Fraudsters Use iPods to Steal Company Information). We've heard this story before, but put "iPod" in the headline and you've got yourself something. If IT managers don't realize the threat from PDAs, MP3 players. cellphones, USB drives and the like, alarmist reporting about the threat from iPods isn't going to wake them up. via Michael Geist's Internet Law News
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June 14, 2005
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Sex Mini-Game in Grand Theft Auto
A rumor that had been floating around this weekend about a hidden, sexually explicit mini-game in Grand Theft Auto: San Andreas had been debunked by Gamespot Rumor Control, but now they aren't so sure (Rumor Control: GTA PSP Screens and (More) Real-Time PS3 Demos). Initially, UK Resistance pointed out that many of the graphics look "awful and amateur," so RC [Rumor Control] gave it a "probably bogus" determination. But over the weekend, RC was sent "evidence" from Gtasanandreas.net that the hack was "real." In fact, the evidence was even more mature in nature. So while its origins are unclear, there is a San Andreas sex minigame out there. NSFW screenshots here: GTA San Andreas Hack -- Confirmed as Real. I can't confirm this hack, but if true, it shows that Rockstar Games really enjoys taunting would be censors.
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Balance the Broadcast Flag with DMCA Reform?
Rep. Rick Boucher (D-VA) has a provocative op-ed in C|Net News today, offering a compromise with the MPAA: they get the broadcast flag and consumers get DMCA reform (A Deal Made in Washington?). If the MPAA expects Congress to ratify a rule that would limit the ability of ordinary consumers to share lawfully acquired digital broadcast television programs with one another, then it shouldn't be surprised if Congress insists that the MPAA accept in return a restoration of the fair use rights taken from consumers through the enactment of the Digital Millennium Copyright Act (DMCA).
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Darknet Excerpt: The Future of DRM
JD Lasica has another excellent excerpt from his new book, Darknet: Hollywood's War Against the Digital Generation (Story: Your Locked-Down Digital Future). Hollywood is adding such little-known weapons to its arsenal as “certification” and “renewability”—new forms of copy control that are about to enter the living room by stealth. (Another feature, called "selectable output control," allows copyright owners to turn off a viewer's set-top box's outputs under certain circumstances, as when a copy protection scheme has been hacked. But consumer groups and electronics companies say honest viewers shouldn't be prevented from, say, playing HDTV movies or recording high-def television just because someone somewhere else foiled the industry's copy control system.)
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The Next Big Thing is the Thing that Makes the Last Thing Usable
Change and progress is wonderful, but sometimes we need to assimilate it, as Firefox developer Blake Ross reminds us (The Next Big Thing is Not My Concern). Here’s what I mean: put a digital picture and an instant message window side by side and ask Mom to share the picture. Even though the windows are approximately five pixels apart, sharing them is about as intuitive as a W2 form. It’s actually easier to share a picture sitting on a server in China than it is to share your own stuff. And you want me to gush about podcasting? via Ant's Eye View
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Flag Day
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MacKinnon on Corporate Support for Chinese Censorship
I haven't written about the recent controversy over Microsoft filtering certain words on their Chinese internet portal because I figured it would only be news if Microsoft hadn't caved in to censors (Microsoft Bans 'Democracy' for China Web Users). They're far from the first corporation to help the Chinese censor, they won't be the last. Rebecca MacKinnon has the best response I've seen (My Response to Scoble). Definitely read the whole, link-rich post. I can tell you one more thing about the Chinese. They hear what you say, then they watch how you do business. From there, it's pretty easy to figure out what your real values are. Perhaps, to soothe their corporate conscience should they have one, the companies that help China censor might also support organizations that create the tools to fight censorship. And I mean some real assistance. Don't just donate money. Microsoft could give some of its programmers the duty of working on some of the open source projects. via Instapundit
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I'm Sorry Dave, I'm Afraid I Can't Do That.
I'm not one to post much about case mods, but I want one of these: Hal 9000 Case Mod.
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Korea to Require All Video Be Rated Before Distribution Via Internet
South Korea is going to require video distributed via the internet to be rated before it can be distributed, according to a report in the Korea Times (Online Video Clips to Receive Ratings). The purpose of the law is to reduce violence, which includes organized criminal activity, privacy violations and libel (something a bit lost in the translation, I think). In any case it will likely have a bigger effect in squelching free speech and amateur video. A couple of other aspects that seem a little strange: To tackle online privacy infringement, the government is also considering making Internet users disclose their real names....The government will also urge people privately publishing gossip to register the reports as regular publications. via Michael Geist's Internet Law News
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French ISPs Ordered to Block Holocaust Denying Website
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June 13, 2005
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Geist on Motivations for Copyright Reform in Canada
More must-reading from Canadian Ubercyberlawprof Michael Geist on the "motivations debate" setting the stage for Canadian copyright reform (Groundhog Day). My motivations are pretty transparent. I am concerned about the impact of potential copyright reforms advocated by CRIA that have been shown elsewhere to have a negative impact on privacy, free speech, creativity, security, and research. I am concerned with policies that do little to benefit Canadian creators while sending increasing royalties to large multinational corporations based outside the country. I am concerned by public rhetoric that seeks to label as "theft" activities that may be permissible under Canadian law. I am concerned that Canadian copyright laws are not focused on policies that could genuinely foster greater Canadian creativity and access to Canadian culture. I would argue that CRIA's motivations are also pretty transparent. Consider the development of the private copying levy in Canada and the ongoing debate on file sharing. Read the whole thing.
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WalMart to Put a Fork in Pre-Recorded VHS, 'It's Done'
Yahoo! News carries a Reuters wirestory that reports WalMart's alleged plans to stop carrying pre-recorded VHS early in 2006 (Wal-Mart Set to Erase VHS, Sources Say). At a subsequent reset in February, VHS most likely will be cut out, according to the source. After February, "it is unlikely there will be any VHS left in any Wal-Mart store," the source said. There are more than 3,600 Wal-Mart stores in the U.S. When will the last player and last blank cassette be sold? via Cinematica UPDATE 14 Jun 2005, 1000PT: WalMart denies this ( Wal-Mart: Hey, We're Still Selling VHS).
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Virtual Reality Weapons
reBang Weblog brings a nasty little weapon for Second Life to our attention that will likely crash the client of those it has targeted (Recipe for a Metaverse: One Part Virtual Weapons). There is even a nice little catalog-like advertisement for it. Simply rez one of these objects and set the target’s name using “/500 target name". If that target comes into the same sim and with in 96m of the DBomber, the DBomber will send them over 15000 blue dialog boxes, along with 15000 notecards. It screws the client, and it doesnt stop when the avatar logs out, it will continue to pump notecards to their account even whilst logged out, if they come with in 96m of the DBomber, they WILL get 15000 notecards, and many Dialogs(the dialogs dont conintue after the avatar logs out, the notecards do though :) :) ). I've certainly had my testing login severely impaired by DBomber whilst testing, and seen quite a few complete lock ups. One admires the cleverness, but hopes that this sort of thing doesn't ultimately destroy the space. UPDATE 2155PT: In the comments, James Grimmelmann points out that this weapon likely violates the terms of service.
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Split-Screen Commercials to Beat TiVo's Fast Forward Button
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Institutional Press Afraid to Stand Up Against Trade Secret Law
Matt Welch writes about Apple v. Does for Reason (Who Gets to Play Journalist?). He passes briefly over the tired blogger vs. journalist debate and into the more interesting arguments regarding why trade secrets get so darn much protection anyway and castigates the institutional press for acquiesing in this. But you can also argue that in the balance of free expression, the legalities just don’t matter that much. Free speech seems to become more legally constrained each year, yet free expression continues to boom. If bloggers are left unshielded, that will only serve to enlarge an already conspicuous paradox: that the people with the most press freedom seem the least willing to use it.
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Social Networking Software: Not Even Close
Stowe Boyd has a good post about social networking on Get Real (Social Networking: Broken, Boring, or Offtrack?). I've never really understood the attraction of these things. I joined one, but couldn't really make myself interested in visiting it. As Boyd argues, what we really need are more tools that connect us dynamically, through blogs and similar self-publishing. For example, SixApart, or other blog technology players, could include features to make the social linking that is implied by blogrolls, trackbacks, and hyperlinks more explicit, or more obviously searchable. "What is being read by those that are strongly connected to Get Real?" for example. This is sort of what Technorati and other search tools are offering, but only Deli.cio.us seems to be on a social bent, here, and even that is more focused on the tags than the taggers and their relationships.
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What are the Democrats Thinking?
Over on C|Net News, Declan McCullogh blasts Democrats for supporting bills that would regulate videogame violence (What's Behind the Video Game Witch Hunt?). He's got a point: "In most cases these bills have been introduced by Democrats," Doug Lowenstein, president of the Entertainment Software Association, told me on Friday. "They've come from people who have aspirations for national office. They come from people who are interpreting the 2004 election as a values election and the Democrats lost on values. One way to recapture values is to attack violent entertainment, especially video games. It's a cold, calculating political effort." Indeed. Seriously. What is wrong with the Democrats? They heavily favor Hollywood over Silicon Valley in the copyfight, and they go after videogames in a way that they don't go after Hollywood (though they talk about it a bit). Why are they doing their best to turn off the next networked generation? There have got to be better ways to demonstrate their social conservatism.
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Average Size of Shared Files Nearly Triples Since 2002
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Beastie Boys Sampling Infringement Case Ends
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Congressman Opposing Municiple Telecom Will Benefit Financially
On the Huffington Post, Josh Silver has an interesting post about the financial background of Rep. Pete Sessions (R-TX), who has introduced a bill essentially banning municiple telecom (Another Corrupt Congressman from Texas: The Next DeLay?). Sessions stands to gain as well. According to his "Financial Disclosure Statement for Calendar Year 2003," the former SBC executive owns $500,000 in SBC stock options and received more than $75,000 from SBC and it’s employees. It's no wonder he would sponsor legislation that is supported by nobody in this country except for the telecom and cable giants that punch his ticket. The Congressman's 2004 disclosure statement will be released June 15. Cynicism about our regulatory structure seems appropriate in this case, I think. Read the whole thing.
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Forbes.com Doing Very Well Under Free Model
AdAge (reg. req.) notes that Forbes.com is thriving under a free on the internet model (Forbes.com's Internet Audience-Building Secret and How it Outdistanced NYTimes.com and WSJ.com). “Responding to an audience question about when Forbes.com will surpass the print edition in terms of revenue, Jim Spanfeller, president-CEO of Forbes.com, said: ‘Probably in about 18 to 20 months.’”.... How has it come so far in the digital realm so fast? Largely by being, in almost every regard, free, and therefore part of the open-to-all, continuous conversation that takes place via forums, blogs and links all over the Net. That is not to take anything away from Forbes.com’s editorial package, which is highly readable, responsive and totally tuned to Web viewers. Net revenue will soon overtake print revenue. This is not to say that there is no room for the subscription model, but it does show that the free model isn't simply a pipedream. Definitely worth a read. via Online News Squared
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DRM Holding Back 'Connected Home' Consumer Electronics Market
The Industry Analyst Reporter notes a report from Strategy Analytics that DRM is holding back consumer electronics companies from entering a 144-million device "connected home" market (DRM Conflicts Delay Lucrative 144 Million Device Market, Says Strategy Analytics). According to the report, wider adoption of media-sharing devices will be delayed as long as content owners disagree between themselves on how they wish to benefit from DRM technologies. Technology providers, in turn, cannot develop a horizontal market for connected devices until major content providers have agreed on a common framework of DRM interoperability. [emphasis added] It's not about the infringement, it's about control. My other comment: Only 144 million devices? via Slyck
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Google Map Hacks Taking Off
CNN runs an AP wirestory on the increasing number of hacks for Google Maps (Google Tinkerers Make Data Come Alive). Geeks, tinkerers and innovators are crashing the Google party, having discovered how to tinker with the search engine's mapping service to graphically illustrate vital information that might otherwise be ignored, overlooked or not perceived as clearly.... All these sites are operating without Google's permission, clearly violating the company's user agreement. But none charges any fees, and Mountain View-based Google, which declined to comment through a spokesman, has made no effort to shut them down. It would be nice to have a more formalized policy (and standards and things) explicitly permitting these hacks, but the innovation is incredible. via Hit & Run UPDATE 1000PT: Seems like the good times are already over: Stitcher: The Google Maps team recently noticed your Google Maps tile "stitcher" wallpaper maker at http://gmerge.2ni.net/. Google is always happy to see developers interested in our products and we commend you on the service. That said, we would appreciate it if you voluntarily remove your service and stop using Google Maps on your web site. The service violates the Maps Terms of Service available at http://www.google.com/help/terms_local.html, and jeopardizes our ability to make Google Maps available to the public because it encourages non-personal use of Google Maps.
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More on the LA Times' Wikitorial
Last night I expressed my doubts about the LA Times new concept of wiki-fied editorials or "wikitorials" (Wikitorials: A Dubious Idea from the LA Times). I'm not saying they won't work, only that I have my doubts. Seems I'm not the only one, as many other people also comment on the concept:
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June 12, 2005
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The Anti-Lockin List
Jason Calacanis has started something that is probably overdue (The Official Meta Lockin Shame & Short-term Solution List). Perhaps the thing I hate most with Internet services is the inability to get your data exported easily....Lockin is evil—not to mention not very Web2.0—so let’s all agree to build export tools shall we? You can help by linking to this post from your blog with suggestions of programs/services that need export features, as well as work arounds you find/create. He's already gotten response to one request and had some interesting comments. It could probably be a bit more formalized. Wiki, perhaps?
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Copyright Infringement is Like Starving a Giant Tamagotchi
The London News Review (yeah, I never heard of it either) has a good time looking at the inanity of some mediocre artist's fans discussing copyright infringement of her work (Music Piracy: How Rachel Stevens Fans are Fighting the Good Fight). And this is why music piracy is such a danger to the true fan: because it utterly devalues their investment - and the fans realise this. Rachel's CD sales suffer, Rachel's none-too-robust career suffers, and she takes another half-step towards obscurity. And the death of Rachel's career will mean the wiping-out of every fan's investment. And they cannot allow that to happen. Rachel Stevens is like a giant tamagotchi - fed by her fans, starved by the pirates. The more the pirates steal from her, the more the fans have to buy and buy and buy, until eventually their pocket money dries up, and Rachel dies. [emphasis in original] via Slyck
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GPS for the News
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Joe Gratz Enjoys Copyright Infringement
Joe Gratz went to a live electronica show that likely featured copyright infringement after copyright infringement (Meat Beat Manifesto). Apparently he enjoyed the blatant thievery: And it all had to be illegal. Thousands upon thousands of individual infringements — each sample from a movie or TV show, each uncleared photograph and film clip, without which the music would have fallen flat and the visuals would have disappeared.
The evening strengthened my belief that fair use should privilege this sort of transformative art, even though I don’t think it’s privileged under current law.
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Brief Interview with David Nimmer
Silicon Valley Media Law Blog has a short interview with David Nimmer, he of the famous copyright treatise, Nimmer on Copyright (Catching Up with David Nimmer). I have analysis there [an article of his] of the Napster case, in which I concluded that the 9th Circuit got it wrong, that Napster should not have been liable. In terms of outcome of the investor liability case, as a treatise writer I deal with a deluge of decisions, so I focus on predicting the past, not the future.
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NYT: Hacking is Good
The New York Times comes out in favor of the "Freedom to Tinker" in an editorial that positively gushes over the new magazine Make (A New Magazine's Rebellious Credo: Void the Warranty!). Make is not just a clubhouse for guys with Skittle breath and abbreviated social skills. Beneath all the home-brewed gadgets and cool software tricks lies a sly and subversive agenda. Make, its makers will tell you, is part of a grass-roots rebellion against consumer technology that they say stifles ingenuity by discouraging end-user modification. To these restless minds, increasingly sophisticated consumer products have forced users into a kind of stupefied passivity, with nothing to do but replace batteries and update software, to point and click into a zone of blissed-out consumption. Marketers and programmers anticipate our every need with products that are essentially disposable, since there is no way to fix or adapt them when they break or become obsolete. In this world, to tinker - to open the case, to fiddle with wires and see what happens - is to rebel.
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June 11, 2005
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What the Long Tail Ain't
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Trip the E911 Fantastic
Prof. Susan Crawford blasts the FCC's E911 for VoIP ruling (AOL, MSN, Yahoo!, and E911). No user of an IM client expects to be able to reach 911. There, I've said it. I don't, you don't -- we just don't. Even if we're calling familiar phone numbers. These online offerings are just not substitutes for phone service. They're much better. And they shouldn't be saddled with impossible, fantastical emergency response requirements in the absence of a clear Congressional statement. We should be very worried about a Congress that would be willing to make such a statement. UPDATE 2140PT: Jeff Pulver has more excellent comments ( So What Does the FCC VoIP Order Really Mean for "Real" VoIP?). Frankly, I was somewhat relieved that the FCC is not imposing technologically impossible E911 obligations on peer-to-peer communications applications that no one could reasonable consider POTS-replacement services. I, however am concerned over the FCC's tentative conclusion in the Notice of Proposed Rulemaking attached to the VoIP E911 Order that might serve to extend traditional E911 obligations to applications that are primarily peer-to-peer, but might offer some limited access to and from the public switched telephone network. Devices and applications that a consumer should not expect to behave like a traditional phone service should not be stifled simply because they behave differently than traditional phone service.
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Doug Englebert's Design Philosophy Still Relevant
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Joi Ito on the Emperor in Japanese Culture
Joi Ito has a fascinating post about the Japanese Emperor who, despite a varying level of influence through history, has certainly left a mark on the culture (Visiting the Old Capital). Regardless of his level of influence, the Emperor has been the center of most of Japanese culture. Kyoto, for instance, is divided into the "Right Kyoto" and the "Left Kyoto". This has nothing to do with East or West, but is the right or left side of the city when viewed from the Emperor. The bullet train "climbs" from Kyoto to Tokyo (the new capital) toward the Emperor and any road that points away from the Emperor is pointed "down". All kinds of symbols and names allow you to understand exactly what each Temple's relationship to the royal family is. Be sure to check the Flickr of his trip: Joi Ito: Kyoto June 2005. I lived in Japan for four years. These photos reminded me of some of the beauty of Japan that I miss.
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Godwin: Microsoft's Halo Deal is Business as Usual
Mike Godwin takes a recent NY Times article (Hollywood Hardball) to task for its too ready acceptance of Hollywood's spin (That's Hardball). The article regards Microsoft's attempt to interest Hollywood in a movie based on the wildly popular Halo videogame series. Hollywood execs were apparently whining that MS was really playing hardball. Yeah, uh huh, right. To be fair to Microsoft, another way to understand Holson's story is this: MS thought they were bringing a huge and valuable property to the studios, and so they put a big price tag on it and tried to preserve the property by seeking creative control. The studios didn't quite like the deal MS offered, or the terms on which it was being offered, and so most of them balked. This looks remarkably like business as usual, at least so far as one can understand it while being based on the east coast.
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June 10, 2005
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463 Communications Looks at CDT's Copyright Policy Paper
463 Communications takes a look at CDT's new copyright policy paper and the blogospheric reaction (Bridging the Digital Content Divide). STILL, what is lost on many outside of Washington, is that this is not always about reality (especially a reality seen through the prism of technologists), it’s about politics. And, and as hard as it is for some to recognize, the center simply wins in business policy debates (especially on an issues that isn't naturally partisan). CDT is working in a Washington environment that is vastly different from Silicon Valley's or or any tech-savvy center. Put simply and wrong or right, most members of Congress (Democrats and Republicans) believe that P2P equals theft. Many also understand that technology mandates don't work. Still, without reinforcement from those in the tech industry, current theft could lose to possible, unknown innovations. See also, CDT's David Sohn respond to Freedom to Tinker's criticisms: Comments on CDT Closes Eyes, Wishes for Good DRM.
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Free Software Foundation Announces Goals of Revision of GPL to Version 3.0
Yesterday, the Free Software Foundation made a major announcement about the goals of the revision of the GPL to version 3.0 (GPL Version 3: Background to Adoption). The substantive reasons for revision, and the likely nature of those changes, are subject matter for another essay. At present we would like to concentrate on the institutional, procedural aspects of changing the license. Those are complicated by the fact that the GPL serves four distinct purposes. Read the whole thing. Seriously. It's important. If you're pressed for time, C|Net News reports and summarizes ( Stallman, Moglen Outline GPL 3 Plan).
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Denise Re: Copyright Reform and Participatory Law
On Between Lawyers, Denise Howell calls for "participatory law" in copyright reform: Denise Re: Fair Use and the Future. Copyright law is like an aging house. Though it may still serve its central purpose of providing a roof overhead for its owners, its infrastructure and plumbing have reached the end of their useful lives, and need to be updated if the whole structure is to remain sound for decades to come. ... Who are the general and sub-contractors of this remodel? We all are. Participatory journalism gets a good deal of attention, but with the kind of unprecedented, unmediated, and distributed influence on the lawmaking process becoming possible today, "participatory law" is just as important, if not more so. Conversations like this one can become part of the analysis, and so can ideas generated around Creative Commons, collective licensing, and collaborative editing of scholarly texts. Keep hacking and hammering folks, and just maybe our children will inherit fewer constraints and uncertainties, and a better world. [links in original]
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Why Didn't Someone Think of this When the Backstreet Boys Were All the Rage?
Furdlog points us to an amusing story on ZDNet Australia in which anti-virus software customers complain about an update to halt a virus that deleted gypsy music from its victims hard drives (Anti Gypsy-Music Virus Welcomed by Victims). Another customer was also hoping detection signatures were delayed but he went on to wish for a variant that could attack legacy systems: "Couldn't you guys wait two or three more days, until my whole neighbourhood was infected? Is there a version of this virus that can erase the cassettes played in cars that are stopped in traffic?"
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First Apple ][ Shipped 28 Years Ago
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Irony, Thy Name is Warhol
The Washington Post runs an AP wirestory reporting that the Andy Warhol Foundation has sued a company that makes hand painted reproductions of any artwork (Warhol Foundation Sues Online Service). On its Web site, Arts-Studio.com offers hand-painted reproductions of Warhol works, ranging in price from $209 to $329. They are among copies of more than 2,000 works by more than 60 well-known artists advertised by the service, which also offers to copy any oil painting desired by a customer. Okay, this is almost certainly copyright violation (the website appears to be down), and is not cool. But it is the Warhol Foundation that is first to sue? Warhol?
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Too Many Competing Interests for Monolithic DRM to be Successful
Jonathan Peterson has a short piece on why the DMCA is not about copyright infringement, but about preventing compeition and, more importantly, why this won't work (Why Open Computing Will Beat Closed Media). DRM has nothing to do with protection from piracy and everything to do with protection from competition - and that is a losing battle. The record companies can’t manage to agree on standards for DRM. Even if [they] did agree, consumer electronics companies would want their share for helping to lock in the content and telcos would want a slice for carriage. Multiply by hundreds of different regulatory environments worldwide, and is it clear that a monolithic, secured, un-hackable Medianet cannot be created. [emphasis in original] Perhaps, but it sure can cause a heck of a lot of trouble. It doesn't have to be 100% effective in order to seriously impact free speech.
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Freedom to Tinker Book Club Kicks Off
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Who Wouldn't Want to be Pre-Breakup AT&T
A couple of days ago, on Wednesday, BoingBoing linked (Savage, Brilliant Essay on DRM) to another anti-DRM piece from LinuxJournal (EOF - If You Don't Believe in DRM, It Can't Hurt You). It's an okay article, but it ended with a strange scenario, And when even a PC operating system can be an 'essential facility' to be regulated on antitrust grounds, DRM that actually worked would be too much power for governments to let anyone else have. Win the DRM war, and the prize is becoming a regulated industry like the pre-breakup AT&T. Well, the pre-breakup AT&T was a very profitable and safe business to be in for several decades. What company wouldn't want to step into AT&T's pre-breakup shoes? Beats having to compete.
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Brazil Threatens to Ignore US IP Rights
The LA Times reports that Brazil is threatening to void US intellectual property rights in retaliation for subsidies provided to US cotton growers (Trade Battle With Brazil Threatens U.S. Copyrights). Angered by subsidies to U.S. cotton growers, Brazilian lawmakers said Thursday that they were considering suspending the intellectual property rights of American products in their country if the U.S. government did not explain how it intended to change subsidy programs by July 1. ... "Essentially, the Brazilian position would be, 'We're going to have state-sanctioned piracy,' " said Neil Turkewitz, an executive vice president of the Recording Industry Assn. of America, the music industry's largest trade and lobbying group. Read the whole thing. This could get interesting.
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June 09, 2005
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Crawford on Utah Anti-Censorship Lawsuit
After a brief hiatus, Prof. Susan Crawford is back blogging with praise for the complaint in the lawsuit that the Utah ACLU and CDT are bringing against a state censorship law (Step Away From the Censorship Button). Though she thinks the law is clearly unconstitutional, Crawford is concerned with the ongoing drumbeat for censorship: We live in an age of litmus tests and anger. Facts don't mean as much as they should these days, particularly when it comes to facts about the internet. Huge industries and incumbents of all kinds seem easily able to ignore fine arguments and good lawyering, and sometimes courts are willing to go along when the issues are particularly salacious. Here, Utah law enforcement authorities and politicians looking for re-election can say something like, "What do you mean, we can't protect our children? What do you mean, we can't make a local law about a communications medium that our citizens access? Of course we've got community values. We have community values that regulate the width of our sidewalks and the quietness of our neighborhoods. Are you telling us that we can't say anything about those values when it comes to the internet? What's so magical about the internet?" Read the 55-page complaint: King's English v. Mark Shurtleff [PDF].
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The Grateful Dead and Fair Use (And It's Not About the Music)
Over on the Trademark Blog, Marty Schwimmer takes a look at a fair use copyright case that involves the Grateful Dead (Please Don't Dominate The Rap, Jack). Authors of a history of the group, Grateful Dead: The Illustrated Trip, had attempted to get permission to use reproductions of concert posters but, unable to come to an agreement with the copyright holder, used thumbnails without permission and were sued. Of particular interest, says Schwimmer, is the fourth element of the court's fair use analysis regarding the effect on the market. I think it's helpful that the Court is trying to give contours to what types of lost licensing opportunities count as harm under the fourth factor. However, looking to whether the use is "transformative" may be the wrong inquiry, and probably proves too much. For instance, turning a 60 page play into a 2 and a half hour feature movie is highly transformative, but that doesn't mean that making a movie is a fair use of the play, or that it isn't taking away from the copyright owner's "traditional" market for the work." So the court found that 'the transformative nature of the use is outside the ambit of lost licensing opportunities' and this there was no negative effect on plaintiff's market. Fair use. Personally, I like to consider derivative works that strive to adapt a work from one medium to another (book to film, for example) as translations.
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The Real Reason Apple is Suing Rumor Sites?
Ed Foster's Gripe Log makes a reasonable case that Apple went after the online journalists in Apple v. Does in order to frighten them away from the Apple+Intel story (Did Apple Sue the Rumor Blogs to Keep Intel Deal Quiet?). Others have made this case, but Foster puts it together well: Apple's legal crusade against the press over the last six months has struck many observers as being a little too Big Brotherish even for a control freak like Steve Jobs. Why would any company want to adopt such strong-arm tactics against loyal fans whose only crime was to care enough about Apple's products to want to report the rumors they heard about them? It made even less sense when, in one of the cases, Apple tried to get the courts to enforce a subpoena allowing them access data from a reporter's ISP in the hopes of determining who his sources were. That was guaranteed to raise hackles not just in the press but also with a broader contingent of privacy and freedom of speech advocates. And Apple was bringing all this opprobrium down on its head supposedly for the sake of smoking out the sources who'd tipped off the weblogs on a couple of less-than-earthshaking stories. Not only did it strain credulity that Apple would care that much about the reports of a sub-$500 Mac and a FireWire audio device, court filings subsequently made it obvious that Apple had not bothered to conduct a serious investigation of the employees who were the most likely suspects. So while willing to argue the First Amendment should be trashed to allow them to apprehend the dastardly fiends who might have violated their non-disclosure agreements, Apple didn't really seem that interested in actually unmasking them. If true, this means we are even more unlikely to see a lawsuit against C|Net News ( Apple + Intel: Where's the Lawsuit Against C|Net?).
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Wikipedia, Astroturf, and Reputation Hacks
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Some Ironies of Our Telecomm Regulatory Structure
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Engadget: RIP DVD Decrypter
Engadget mourns the passing of the DVD Decrypter, one of more more popular DVD rippers (The Clicker: R.I.P. DVD Decrypter). It happened on Monday. Quietly and with little fanfare, a fabulous product evaporated into the great digital ether. Choosing not to rage against the dying of the light, DVD Decrypter instead weighed its options and, like so many before it, chose to take up residence in the digital version of the Bermuda triangle, the Cease-and-Desist Zone. It’s that magical place where both fledgling and fully-featured programs go to never be seen again.
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Granick Wants to Know Top Ten Legal Questions for Hackers
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Re: iPods Re: Australian Law
Kim Weatherall has been following the discussion regarding personal use copying and copyright (here, here, here and here) and considers it from the point of view of Australian law (Fair Use - Should It or Should It Not Cover Private Copying?). [I]nsofar as the personal copying issue matters - the problem here is that the law just looks stoopid. Ultimately, a law that makes thousands of ordinary acts by ordinary people using ordinary consumer technology infringements makes no sense - especially when it looks meaner and nastier than US law. But I don't get the sense that anyone denies we have a problem here. The real issue is whether we can reach sufficient agreement on how to fix it. Now there's a challenge and a half. [italics in original]
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Samuelson's Berkeley Students Offer Potential Solutions for 'the P2P Problem'
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Darknet's Jack Valenti Interview
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Utah ACLU Takes On Yet Another Anti-Porn Law
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Three Anti-Cable Censorship Op-Eds
Jeff Jarvis has been following the ongoing indecency debate closely and has provided a wealth of links on the subject in recent days. Here are a few:
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June 08, 2005
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Virtual Evolution in Second Life
New World Notes, the blog of an embedded reporter in the virtual world Second Life, reports on an intriguing experiment in artificial intelligence and virtual evolution of a school of fish (Evolving Nemo). Some of the stuff that is going on in Second Life is simply amazing. Be sure to read the comments. via reBang
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Patent Reform Act of 2005 Introduced
Dennis Crouch provides a succinct summary of the Patent Reform Act of 2005, which was introduced today (Patent Reform: Patent Act of 2005). Although some of the provisions in the proposed legislation are toned-down from the discussion draft distributed this spring, this version still has something to offend almost every interest. Congressman Smith has called the bill "without question, the most comprehensive change to U.S. patent law since Congress passed the 1952 Patent Act.” Follow the bill through Congress by reading Patently Obvious.
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The Spread of Creative Commons
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Google to Create 3D Maps of Cities
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Two Positive Reviews of CDT's Report
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Quality v. Connectivity
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GPS Cellphone Nag-igation
Iconoculture brings word of a new, beta, GPS-enabled cellphone service that will allow you (and those you permit) to have your cellphone call you with a reminder when you get within 1/2 mile of a particular location (Nag-ivation). The examples used (reminder to return DVDs, wish good luck to a boyfriend arriving at work) seem mundane, but potentially quite useful. A number of other possibilities abound, as long as it is pull, not push. via Mobile Technology Weblog
posted by Ernest Miller |
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A Child's Phone That Actually Works
Telepocalypse has an interesting idea for a Fisher-Price style child's phone that actually works, thanks to Skype (Baby Babble). Up to five buttons, one for each person. When they’re online, the button glows green. When you’re talking to that person, it glows red. Press the button to connect and disconnect. Press multiple buttons for a conference call between all grandparents. Totally under the initiative of your kid, no parents needed. Incoming calls? Probably not, or at least a parent-selectable option (naturally, only from pre-approved buddies). Auto power-off after 5 mins of relative silence. There will be other limited-use phones developed as well. This seems a wide open area for innovation.
posted by Ernest Miller |
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Lessig on the Open Access Law Program
Larry Lessig announces the launch of the Open Access Law Program, which I noted earlier, and provides some additional comments on the purpose and background (Open Access Law: Launched). He claims that, "there is no substantial institutional resistance to open access publishing in law." I'm not so sure about that. I've spoken with the editors of some of these journals (trying to convince them to adopt an open access policy) and there is (was?) real fear that they would lose their nice budgets (based on Westlaw and Lexis revenue) as well as whatever authority they carried.
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Rex Hammock: Apple Will Simplify Podcasting
Rex Hammock continues his series, "How Apple will change everything about Podcasting", by pointing out that, They'll Make It Simple. Indeed, that is what podcasting brought to online MP3s in the first place. Podcasting is to downloadable MP3s what blogging is to homepages. Make it even simpler (it does have a way to go) and the masses will adopt it.
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Copyright North of the Border
I realize I'm a bit late in blogging this, but if you haven't, you really should read ubercanadiancyberlawprof Michael Geist's most recent column on the status of lawsuits against file sharers (The State of File Sharing and Canadian Copyright Law). The differences between Canadian and US law are illuminating. See also his post on the likely introduction of a very content industry-friendly copyright "reform" bill (Fact and Fiction).
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Jack and the Music Future
Raghav "Rags" Gupta has an insightful, short post about the new "Jack" radio format (Jack). In fact, I believe the DJ/personality will become more important over the next few years. Why? Playlist-based listening choices will be widespread and everyone will have the same catalog, so personality/brand will be an important differentiator for stations as will content not available elsewhere. Yes, but we really do need to have the same catalog. It is for this reason that I don't think the current music download and/or subscription business models will be as effective at promoting music as they could be. More importantly, there is no reason the personality has to be tied to the catalog. In fact, it shouldn't. via Om Malik
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How to Avoid the Upgrade into HD DRM Trap
C|Net News has an image of a display that "will soon be able to squeeze high-definition quality out of non-HD sources such as cable, DVD and VHS" (Photo: High-Definition Simulators). If true, I wonder how much this will decrease demand for DRM-encumbered true HD?
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Apple as Media Platform Company
Alan Wexelblat speculates about one strategic possibility for Apple's move to Intel chips (A Copyfighter's View of the Apple Move to Intel). Apple's switch in hardware platforms is about the transformation of Apple into a media company. It will probably still make hardware, and it will probably still dominate certain niche markets, but those markets will be ones that matter in Hollywood, like digital editing. Seems plausible, though I would say media platform company, and I'm not sure that it drove the switch to Intel. Still, interesting ideas. See also, It's Not About the DRM, Stupid.
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It's a Seller's Market in Attention
Yesterday, Jeff Jarvis noted a report that the cost of online advertising will be going up (harder to reach a mass market) and the opposing trend that advertising will be more efficiently targeted ( |
