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.
posted by Ernest Miller |
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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?).
posted by Ernest Miller |
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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.
posted by Ernest Miller |
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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.
posted by Ernest Miller |
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June 25, 2005
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Open(x2) Letter to the Editors of the LA Times on Wikitorials
posted by Ernest Miller |
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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.
posted by Ernest Miller |
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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).
posted by Ernest Miller |
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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)?
posted by Ernest Miller |
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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]
posted by Ernest Miller |
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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.
posted by Ernest Miller |
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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.
posted by Ernest Miller |
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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]
posted by Ernest Miller |
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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]
posted by Ernest Miller |
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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.
posted by Ernest Miller |
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EEJD Roundup on Community Broadband Act of 2005
posted by Ernest Miller |
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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.
posted by Ernest Miller |
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Pre-Grokster Weekend Reading
posted by Ernest Miller |
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EFF on 18 USC 2257
posted by Ernest Miller |
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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.
posted by Ernest Miller |
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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.
posted by Ernest Miller |
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