Discourse.net

P2P File Sharing Update: The Role of (good old) Off-line Networks

British survey findings on young people’s music ownership show that teenagers and students have an average of more than 800 illegally copied songs each on their digital music players.

Here is an excerpt: The research also showed that half of 14 to 24-year-olds were happy to share all the music on their hard drive, enabling others to copy hundreds, or thousands, of songs at any one time. Although illegal copying has become widespread, the scale of the problem uncovered by the University of Hertfordshire left the music industry surprised. On average every iPod or digital music player contained 842 illegally copied songs. Fergal Sharkey, former lead singer of the Undertones and now chief executive of British Music Rights, said: “I was one of those people who went around the back of the bike shed with songs I had taped off the radio the night before. But this totally dwarfs that, and anything we expected.”

I don’t see what there is to be surprised about. Even if the entertainment industry’s scare tactics (lawsuits) have moved file-sharing traffic away from major P2P sites to smaller sites and various torrents, the overall volume of sharing might still be high. Besides, free copynorms among young people are not going away. My own study on the interaction between deterrence and copynorms shows that scare tactics may strengthen pro-copy norms among file-sharers. This new study shows just how much portable storage capacity boosted off line sharing.

Btw, I don’t see how the subscription business model, as suggested in the Times article, has any real promise for the sale of music. Sure, it is closer to the sharing/all you can eat buffet model of P2P, but for every one subscription many more individuals will get free access to the non-networked sharing that the survey evidences.

As it is developing now, the future of the music industry is more vertically integrated. A business model where the music companies make its profits by acting as talent agent of the artist as such, relying much more on profits from non-rival goods such as concerts, advertising, non-digital merchandise. Early reflections on this appeared in Raymond Ku’s excellent article on the creative destruction of copyright.

Copyright of the Law (Note: Not "and")

The Great Grimmelmann writes in The Laboratorium: Copyright, Technology, and Access to the Law that he’s

just released Copyright, Technology, and Access to the Law: An Opinionated Primer:

Recently, the state of Oregon has used copyright law to threaten people who were publishing its laws online. Can they really do that? More to the point, why would they? This essay will put the Oregon fracas in historical context, and explain the public policies at stake. Ultimately, it’ll try to convince you that Oregon’s demands, while wrong, aren’t unprecedented. People have been claiming copyright in “the law” for a long time, and at times they’ve been able to make a halfway convincing case for it. While there are good answers to these arguments, they’re not always the first ones that come to hand. It’s really only the arrival of the Internet that genuinely puts the long-standing goal of free and unencumbered access to the law within our grasp.

This isn’t an academic piece. Instead, it’s designed to bring nonlawyers and people outside the open-access-to-law movement up to speed on the basics of the history, the context, the principles, and the law. Along the way, it tells some interesting stories. I hope you’ll find it equal parts informative, entertaining, and inspirational. Please have a look.

A fun read and a public service.

Everything is a Law School Hypo

I enjoyed this video, Barbri Girl, from the 2008 NYU Law Revue.

I’m afraid, however, that the reason I liked it so much isn’t simply that it’s sort of funny, and at its start so true to life. No, it’s because there’s a legal issue embedded in here — probably unintentionally — regarding whether anyone has grounds to sue over this video. And that just seems so appropriate given the subject matter.

See, the song on which this skit is based is the wonderful/awful “Barbie Girl” by Aqua, a Danish-Norwegian pop-punk band. The song was the subject of a major trademark lawsuit by Mattel.

A video accompanying the original song is available on YouTube. I’m pretty sure I saw a much less camp, and somewhat harder-edged, performance of it back when the song was being litigated — something vaguely like a studio version of the start of this — but maybe I’m imagining things.

Getting back to the law, Mattel was basically handed its head on a plate by the 9th Circuit. In a decision sure to be in every IP casebook, Judge Alex Kozinski not only said the song was protected as a parody under the First Amendment but concluded the decision with the admonition that, “The parties are advised to chill.” See Mattel Inc. v. MCA Records Inc., 296 F.3d 894 (2002).

But here’s where the fun starts: “Barbie Girl” was clearly a parody of the Barbie image. This video, however, is not. But that’s ok because as “BAR/BRI Girl” the trademark being parodied isn’t Mattel’s so they have no grounds for suit.

As for BAR/BRI themselves, they can’t sue, for the same reasons that Mattel’s suit against Aqua was baseless.

But here comes the (weak, legal) joke: the people who have a potential right of action against the NYU law students in the Barbri Girl video are Aqua! It’s a real stretch to say that the Barbri Girl video is a parody of Aqua’s song. [Contrast Barbri Girl with this “Ugly Girl” parody song, sometimes attributed to Weird Al Yankovic, here supported by some Sims 2 Machinima.] Rather, BarBri Girl appropriates the tune (and more) of Barbie Girl for a satirical purpose other than parody of the source. And — unless copyright law has changed since I last looked — that sort of satire isn’t necessarily a protected First Amendment use of a copyrighted tune, cf. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994); Dr. Seuss Enterprises v. Penguin Books USA, 109 F.3d 1394 (9th Cir. 1997).

But don’t panic. Despite using the whole tune, and some of the look and feel of the original video, Barbri Girl is probably fair-use anyway, since the use is not commercially motivated and indeed is arguably for nonprofit educational purposes, and will have no “negative effect … upon the potential market for or value of the copyrighted work.” (per the Supreme Court in the 2 Live Crew decision).

And most importantly, I don’t think Aqua is going to sue.

By the way, none of this stuff is going to be on the bar exam.

Wrong Target

Being a big fan of Grant McCracken’s “This Blog Sits at the Intersection of Anthropology and Economics” I was a little startled to see a post snippet pop up in my feed reader that said,

I was talking in Vancouver yesterday. The slide that everyone seemed to like the best has “shoot the lawyers” as its title.

Fortunately, when you go to the full text, the above is immediately followed by,

My argument is that we have to be much more free with our intellectual property.

I’m OK with that, and in time it should be possible to explain to Prof. McCracken that current IP policies are not primarily the fault of lawyers but rather of incumbent content-provision industries trying to protect their business models. Yes, they often hire lawyers (and Senators) to do their dirty work, but those are just the means not the sources.

Prof Claims Copyright on Publication of Class Notes

Lawsuit Claim: Students’ Lecture Notes Infringe on Professor’s Copyright:

University of Florida professor Michael Moulton thinks copyright law protects the lectures he gives to his students, and he’s headed to court to prove it.

Moulton and his e-textbook publisher are suing Thomas Bean, who runs a company that repackages and sells student notes, arguing that the business is illegal since notes taken during college lectures violate the professor’s copyright.

Faulkner Press filed suit in a Florida court Tuesday against the the owner of Einstein’s Notes, which sells “study kits” for classes, including Professor Michael Moulton’s course on “Wildlife Issues in the New Millennium.”

Those notes are illegal, Faulkner and Moulton contend, since they are derivative works of the professor’s copyrighted lectures.

As a doctrinal matter, it seems to me that the prof here has a respectable case. (See the complaint.)

It’s important, though, to note some key facts. First, we’re not talking about a claim that students can’t take notes for their own use — of course they can.

Second, there shouldn’t be any doubt that fair use allows students to share notes with other students in the same class in the same year.

Third, I’d argue that fair use extends to sharing notes with other students in the same school, at least if no money changes hands.

Fourth, if students take what they learn and write their own treatment of the subject, that’s not copyright infringement, that’s wonderful.

If the facts alleged are accurate, however, there are three facts in this case which take it far outside those situations. First, the student was selling the work online for money. Second, it competed with a similar product by the professor. Third, they were pretty similar — the value added by the student over straight transcription is alleged to be not that great.

I’ve been trying to imagine how I’d feel if a student of mine did something like this. Part of me would admire the entrepreneurial spirit. How the rest of me felt would depend greatly on which course it was. I think for anything I teach out of a casebook, my only issue would be whether the existence of an easily available customized crutch would hamper the learning experience for future students. A big chunk of the originality in a course like Administrative Law is in the selection and arrangement of cases and materials in the casebook; I think — I hope! — I add something valuable to the base, but I doubt very strongly that it’s enough to be worth suing over. (One might think that given they’re all about the same basic area of law, the books themselves must be very similar, but this is not so.)

But two out of the three courses I’m teaching this year are based on my own materials, put together with some considerable pain and effort. The syllabuses are online, freely available, and one has lots of links to the materials as well; for both I also provide online a series of discussion questions, also viewable by the public.

Legal issues aside, if a student just republished all this for profit without permission, even it the publication credited me in some way, I don’t think I’d be pleased: I’d rather the money, if there’s going to be some, go to me or to a charity I liked than into the pockets of a somewhat random corporation and/or individual. Of course, there could come a point where the student’s addition of original commentary took it out of the realm of simple copying; that might be different. But short of that, I would not be pleased.

I’d be curious to hear, though, how current (and former) students feel about this.

The Sort of Expert You Want on Your Side

Speaking of Slashdot, it has a pointer to the sort of expert witness report that makes a litigator’s heart (yes, they have them!) go pitter-pat. See Slashdot | RIAA Expert Witness Called “Borderline Incompetent” which will lead you to Prof. Johan Pouwelse of Delft University expert report relating to an allegation of copyright violations via P2P file sharing.

John Scalzi Can Rant

Science fiction writer John Scalzi knows how to write a rant. And what’s better, he’s on the right side of this one.

See A Gut Check Moment for SFWA for a classic example of the genre. And entertaining comments from a bevy of science fiction luminaries.

90% of Statistics Are Wrong

It’s rare you get quite as tidy an explanation of where a fake statistic came from as this, which comes from a bit of sleuthing by Prof. Michael Geist:

The RCMP has been the single most prominent source for claims about the impact of counterfeiting in Canada since its 2005 Economic Crime Report pegged the counterfeiting cost at between $10 to 30 billion dollars annually. The $30 billion figure has assumed a life of its own with groups lobbying for tougher anti-counterfeiting measures regularly raising it as evidence of the dire need for Canadian action. U.S. Ambassador to Canada David Wilkins cited the figure in a March 2007 speech critical of Canadian law, while the Canadian Anti-Counterfeiting Network, Canada’s leading anti-counterfeiting lobby, reported in April that the “RCMP estimates that the cost to the Canadian economy from counterfeiting and piracy is in the billions.”

Yet despite the reliance on this figure - the Industry Committee referenced it in its final report - a closer examination reveals that the RCMP data is fatally flawed. Responding to an Access to Information Act request for the sources behind the $30 billion claim, Canada’s national police force last week admitted that the figures were based on “open source documents found on the Internet.” In other words, the RCMP did not conduct any independent research on the scope or impact of counterfeiting in Canada, but rather merely searched for news stories on the Internet and then stood silent while lobby groups trumpeted the figure before Parliament.

A careful examination of the documents relied upon by the RCMP reveal two sources in particular that appear responsible for the $30 billion claim.

First, a March 2005 CTV news story reported unsubstantiated claims by the International Anti-Counterfeiting Coalition, a global anti-counterfeiting lobby group made up predominantly of brand owners and law firms, that some of its members believe that 20 percent of the Canadian market is “pirate product.” That 20 percent figure - raised without the support of any evidence whatsoever - appears to have been used by IACC to peg the cost of counterfeiting in Canada at $20 billion per year.

Second, a 2005 powerpoint presentation by Jayson Myers, then the Chief Economist for the Canadian Manufacturing and Exporters, included a single bullet point that “estimated direct losses in Canada between $20 billion and $30 billion annually.” The source for this claim? According to Mr. Myers, it is simply 3 to 4 percent of the value of Canada’s two-way trade.

And, as Prof. Geist explains, other oft-cited measures of the loss due to ‘piracy’ are equally suspect.

Science Fiction Writers of America Caught in DMCA Abuse

Cory Doctorow is mad, and he has good reason: Science Fiction Writers of America abuses the DMCA.

You’d think they’d know better.

Ed Bott's Contrarian View of Microsoft DRM

It’s commonly believed that Vista’s built-in DRM is a Bad Thing. I think it’s bad because any time they put features in my machine that are meant to control me rather than letting me control the machine, I think the natural order of things is being undermined. Plus if the machine can do one thing I can’t control, who says it can’t be leveraged to do other nasty things to me?

It seems, though, that some people also blame Vista’s DRM for other evils, including performance problems (I hadn’t heard that). Ed Bott, who although he is a Microsoft fan in the way of a super-power user has in my experience always proved to be fair-minded, says it Ain’t So:

Over the Christmas and New Year’s holidays at the end of last year and the beginning of this year, in between two-hour daily workouts with a snow shovel, I read a remarkable paper called A Cost Analysis of Windows Vista Content Protection. And I wasn’t the only one. According to Technorati, the paper has so far been linked by more than 250 blogs, and Google News finds more than 100 citations to the paper in mainstream online publications.

Too bad it’s just so wrong about so many things.

In fact, I read the whole paper - all 10,224 words of it - seven times that week, and lost count of the number of exaggerations, half-truths, unsupported statements, and flat-out errors in it. It’s a big steaming pile of FUD, with just enough truth sprinkled on top to make it seem like there’s some substance underneath it.

I don’t profess any expertise here, but it’s interesting. There’s more where that came from, and at Busting the FUD about Vista’s DRM.

SCO Loses Big in Its Unix Suit v. Novell

Via Groklaw,

Judge Dale Kimball has issued a 102-page ruling [PDF] on the numerous summary judgment motions in SCO v. Novell. Here it is as text. Here is what matters most:

[T]he court concludes that Novell is the owner of the UNIX and UnixWare Copyrights.

Looks like the long nightmare may be (almost) over.

Grim Outlook for Internet Radio Equality Act

Wired.com reports SoundExchange Entrenches Position as IREA Faces Music:

A federal bill that would reset music royalties at a more affordable rate for thousands of internet radio stations is losing steam in the House of Representatives, raising new fears for the future of webcasting.

Looks bad for Pandora…

Pandora Is Silent Today

Pandora is silent today, as are most other internet radio stations. Here’s the letter explaining why:

A Day of Silence

Hi, it’s Tim from Pandora,

I’m sorry to say that today Pandora, along with most Internet radio sites, is going off the air in observance of a Day Of Silence. We are doing this to bring to your attention a disastrous turn of events that threatens the existence of Pandora and all of internet radio. We need your help.

Ignoring all rationality and responding only to the lobbying of the RIAA, an arbitration committee in Washington DC has drastically increased the licensing fees Internet radio sites must pay to stream songs. Pandora’s fees will triple, and are retroactive for eighteen months! Left unchanged by Congress, every day will be like today as internet radio sites start shutting down and the music dies.

A bill called the “Internet Radio Equality Act” has already been introduced in both the Senate (S. 1353) and House of Representatives (H.R. 2060) to fix the problem and save Internet radio—and Pandora—from obliteration.

I’d like to ask you to call your Congressional representatives today and ask them to become co-sponsors of the bill. It will only take a few minutes and you can find your Congresspersons and their phone numbers by entering your zip code here .

Your opinion matters to your representatives - so please take just a minute to call.

Visit www.savenetradio.org to continue following the fight to Save Internet Radio.

As always, and now more than ever, thank you for your support.

-Tim Westergren
(Pandora founder)

Please help save Internet Radio.

Where Do I Buy a Ticket for the Deposition?

RIAA’s second biggest mistake was to sue Tanya Andersen, an innocent single mother, for copyright infringement. Their biggest mistake was to harass her and try to depose her 10-year-old daughter. (And even, allegedly, to call the girl’s school posing as her grandmother!)

RIIA was forced to dismiss its case against Ms. Andersen with prejudice, although the counter-claims remain to be heard. And now those counter-claims are being bulked up with a new complaint, which basically charges BMG and two other record companies, the Recording Industry of America (RIAA), and two of their lawsuit minions, Media Sentry and the “Settlement Support Center” of basically running a rip-off operation, with formal counts including negligence, fraud, abuse of process, malicious prosecution, intentional infliction of emotional distress, invasion of privacy, libel and slander, deceptive business practices, misuse of copyright laws, trespass to chattels (!), violations of the Computer Fraud and Abuse Act, and of course state and federal RICO claims.

The best part will surely be the depositions in which various record company execs and RIAA honchos and goons are asked whether they understood the nature of the fishing expedition cum intimidation racket they had cranked up. And being smart, some of them must surely have known. (The others will be mere knaves.) If they could sell seats, this could be the hottest ticket in town.

As it is, we’ll have to make do with the transcripts.

(spotted via Groklaw)

Anti-DRM T-Shirts

Here’s a chance to vote for your favorite Anti-DRM T-Shirt Design.

746,000 Take Down Orders Coming Right Up?

Google: Results 1 - 10 of about 746,000 for “09 F9 11 02 9D 74 E3 5B D8 41 56 C5 63 56 88 C0”. (0.10 seconds).

I somehow doubt that for all their public bluster we can expect the AACS folks to come up with 746,000 take down orders. Even so, I wonder if Siva is really taking this seriously enough when he writes, Hahahaha! I am breaking federal law! Hahahaha!.

Unfortunately, selective prosecution is not illegal….

[Update (5/5 19:00): Google’s up to over 1.4 million now…]

What a Movement Looks Like

Wired has some great photos of the ways in which regular folks engaged in AACS civil disobedience: Photoshop Rebels Rip Great HD DVD Clampdown.

Recommended Links

This is a great song. And these are some of the best riddles on the Internet.

Incidentally, I also quite enjoyed this article on the BBC web site.

Bill to Save Internet Radio

According to RAIN: Radio And Internet Newsletter, The Internet Radio Equality Act (.pdf) was introduced yesterday by Representative Jay Inslee (D-WA) and eight cosponsors.

This bill, or something like it, deserves support.

Pandora Wish List (Updated)

I want two things relating to Pandora.

1) I want Congress or the courts (or the agency itself on rehearing) to overturn the appalling decision of the Copyright Royalty Board (the CRB) setting an unreasonably high fee for the webcasting statutory license in the United States — that will charge Pandora and other internet radio stations so much for the right to broadcast that it would put them out of business.

[Update: Whoops. Seems the CRB appeal board has already rejected the appeal of its earlier ruling. It’s on to the DC Circuit now. And that’s sure to be uphill. Join The campaign to save net radio. (Or, maybe, some organization that looks more able to achieve the goal?) Congress, are you listening? ]

2) There ought to be an easy way to create a station based on everyone who’s covered a given song using those covers as song seeds. I want a one-click way to use every version of “Louie, Louie” or “Major Tom” as joint song seeds.

Rock on Pop? I Think Not.

I was going to link to Dylan Hears A Who!, which was an amazing, wonderful and awful, so-close-to-Bob Dylan you wondered if it was him performance of Dr. Seuss’s classic works including the Cat in the Hat.

I was going to say that the only way you could tell it was a parody is that the real thing isn’t quite so monotone (except on the worst parts of Desire) Even so, I think it will change the way I see Dylan — but not Dr. Seuss. But I forgot to post the link last week and it mouldered in some queue.

And now it’s gone:

DRM Follies

Further proof that we don’t live in a globally rational world.

Vista updates destroy Unix partitions. (you gotta read this one, it’s a riot and an anti-trust suit waiting to happen).

How I Became A Music Pirate — the DRM made him do it.

And, one of Europe’s largest movie stores, reports that 75% of its customer support problems are caused by DRM.

Technical Expert Needed Please

Could someone who understands hardware marketing speak better than I please translate the following into plain English?

What makes this sound card a bit special is the presence of a secondary music processor, which allows legal “ripping” of music you’ve bought onto regular MP3, WMAs and so on. The trick is called Analogue Loopback Transformation, or in technical terms, the redirection of outputs from a physical output to secondary audio processor which will then record the file in the format you want.

Here’s what I want to know: Does this mean that if one has a ‘trusted’ computer and/or a Vista-like ‘trusted’ OS that is designed to prevent the user from copying data without permission from Mom, that this sound card will rip it anyway? Is this a DMCA killer? Or does the word “legal” in the quote above mean “DRM inside”?

EFF Wants to Hear From (Innocent) YouTube TakeDown Victims

Viacom got Youtube to take down 100,000 videos. Many of which were not in fact infringing of anyone’s rights. EFF would like to hear from the victims:

Pirate Bay Wants to Buy Sealand

Pirate Bay launches bid to buy country

NEFARIOUS file-sharing site The Pirate Bay says it is planning to buy its own country and turn it into a copyright-free piracy paradise.

The torrent outfit launched a “Buy Sealand” campaign this week, with the aim of acquiring the former World War 2 gun platform now known as the Principality of Sealand, located just six miles from the UK coast.

The cut-throat file sharers claim the platform is up for sale having been badly damaged by fire in the summer of 2006.

The Pirate Bay hopes to fund the £100 million sale through donations from users who will automatically become citizens of the principality.

£100 million ???

The Grateful Dead

Last week’s report from the Gowers review and its recommendation not to extend the term of copyright in sound recordings past the current 50 years predictably annoyed the record industry. A day later, Phonographic Performance Limited, the collection society for sound recordings, responded by taking out a full-page ad in the Financial Times listing 4,500 musicians whose signatures it collected protesting Gowers’ recommendation.

Well, fair enough; if anyone has the right to talk about copyright in sound recordings it’s musicians, without whom there would be nothing to talk about. That doesn’t mean they should have the right to dictate policy, but probably few outside the business understand the extent to which any musician who stays in the business any length of time has been ripped off (by both professionals and amateurs), cheated, and otherwise buffeted by the “I love your music”s of life. Spend any time with them, and you’ll run across a load of people who are determined that if they can ever get their rights back they’re never going to lose control of them again.

It’s just that some of the musicians signing the ad were…dead.

It’s not a big deal. No one is alleging that the Gowers recommendations made them commit suicide or anything. They’re just dead.

Bonus: Lessig is pretty funny about this too.

Google-YouTube Deal Structured to Screw Authors?

It's an anonymous source, but a pretty plausible sounding story. As recounted at Blog Maverick, Some intimate details on the Google YouTube Deal, the Google buy of YouTube was heavily driven by copyright concerns. That's why YouTube needed to sell, that's why a huge pot of money was set aside for liability concerns, that's why the money is going to be shared with content companies in a way that ensure the authors won't see any royalties, and that's why there's a secret deal to make the content companies lay off YouTube for six months -- while they are encouraged to sue everyone else in the same business and thus help drive YouTube's competitors into the ground.

Here's just part of the fascinating story:

It didn't take a team of Harvard trained investment bankers to come up with the obvious solution and that is to set aside a portion of the buyout offer to deal with copyright issues. It's not uncommon in transactions to have holdbacks to deal with liabilities and Youtube knew they had a big one. So the parties (including venture capital firm Sequoia Capital) agreed to earmark a portion of the purchase price to pay for settlements and/or hire attorneys to fight claims. Nearly 500 million of the 1.65 billion purchase price is not being disbursed to shareholders but instead held in escrow.

While this seemed good on paper Google attorneys were still uncomfortable with the enormous possible legal claims and speculated that maybe even 500 million may not be enough - remember were talking about hundreds of thousands of possible copyright infringements. Youtube attorneys emphasized the DMCA safe harbor provisions and pointed to the 3 full timers dedicated to dealing with takedown notices, but couldn't get G comfortable. Google wasn't worried about the small guys, but the big guys were a significant impediment to a sale. They could swing settlement numbers widely in one direction or another. So the decision was made to negotiate settlements with some of the largest music and film companies. If they could get to a good place with these companies they could get confidence from attorneys and the ever important "fairness opinion" from the bankers involved that this was a sane purchase.

Armed with this kitty of money Youtube approached the media companies with an open checkbook to buy peace. The media companies smelled a transaction when Youtube radically changed their initial 'revenue sharing' offer to one laden with cash. But even they didn't predict Google would pay such an exorbitant amount for Youtube so when Youtube started talking in multiples of tens of millions of dollars the media companies believed this to be fair and would lock in a nice Q3/Q4. [Note to self: Buy calls on media companies just prior to Q3/Q4 earnings calls.] The major labels got wind that their counterparts were in heated discussions so they used a now common trick a "most favored nation" clause to assure that if if a comparable company negotiated a better deal that they would also receive that benefit. It's a clever ploy to avoid anti-trust issues and gives them the benefit of securing the best negotiating company. They negotiated about 50 million for each major media company to be paid from the Google buyout monies.

The media companies had their typical challenges. Specifically, how to get money from Youtube without being required to give any to the talent (musicians and actors)? If monies were received as part of a license to Youtube then they would contractually obligated to share a substantial portion of the proceeds with others. For example most record label contracts call for artists to get 50% of all license deals. It was decided the media companies would receive an equity position as an investor in Youtube which Google would buy from them. This shelters all the up front monies from any royalty demands by allowing them to classify it as gains from an investment position. A few savvy agents might complain about receiving nothing and get a token amount, but most will be unaware of what transpired.

Tell me that romantic story again, the one about copyright law being for the benefit of the authors.

Wendy Seltzer Deconstructs the Vista License

Wendy Seltzer does a great public service analyzing the new MS Vista licensing terms.

Legal Tags: Forbidding Vistas: Windows licensing disserves the user: Reading the Windows Vista license is a bit like preparing for breakfast with Lewis Carroll's Red Queen: You should be ready to believe at least six impossible things about what users want from software.

It is unlikely that a home user looking for a computer operating system has any of these "features" of the Vista EULA in mind: The Red Queen

1. Self-limiting software
2. Vanishing functionality through invalidation
3. Removal of media capabilities
4. Problem-solving prohibited
5. Limited mobility
6. One transfer only
and a bonus,
7. Restrictions on your rights to use MPEG-4 video

Details below. While Microsoft should be commended for putting its license into plain English, that doesn't help to make the license restrictions any more palatable.

Unix anyone?

Well Versed in Law

Board Games and Gaming Blog from Jerusalem, Israel - Yehuda presents ...the U.S. Patent Code ... in verse.

And if that's not enough, how about the U.S. Copyright code, in verse.

RIAA's Latest is Not Quite as Bad As It Sounds

RIAA sues a guy claiming he's downloading copyrighted songs without permission. Guy moves for summary judgment saying they got his name wrong, he never downloaded nuthin, doesn't even have file sharing programs on his computer. RIAA doesn't actually dispute any of his factual assertions via affidavit, which would be the normal response if they had a case (but can lead to sanctions if they knowingly lie). Instead, RIAA moves for expedited discovery.

Is this just a 'shopping expedition'? You might expect me to say so. And indeed, news reports would make you think so. But I've had a look at the affidavit supporting RIAA's motion, and it's not baseless at all. Rather, RIAA says that they have third-party info that a certain IP number was used to do downloads it alleges copied material without a license. And it further has information from an ISP linking that IP number to a person it says is the defendant (he contests that).

Seems to me that the court might reasonably first order discovery on the identity issue before going whole hog. But if the defendant is in fact shown to be the person fingered by the ISP, then I think RIAA's request for further discovery is not ridiculous. None of which means RIAA will win, or deserves to win (or lose) on the merits about which I am of course ignorant.

[corrected]

Microsoft: Open Source Should NOT be Part of the 'Future of Higher Education'

Inside Higher Ed has a fascinating story about a Microsoft executive's partly successful attempt to undermine an endorsement of open source software in a report by a national commission on education.

Changing the Report, After the Vote: Except for David Ward, president of the American Council on Education, every member of the Secretary of Education's Commission on the Future of Higher Education found enough to endorse in the draft the panel produced last month to support it over all. All of them, certainly, also found some aspects of the report objectionable, yet swallowed those objections and agreed, at a public meeting August 10, to sign the report. The panel's members agreed at the time that the report would undergo only minor copy editing and "wordsmithing"� between then and when it was formally presented to Education Secretary Margaret Spellings later this month.

That agreement was nearly imperiled last weekend, though. Gerri Elliott, corporate vice president at Microsoft's Worldwide Public Sector division, sent an e-mail message to fellow commissioners Friday evening saying that she "vigorously" objected to a paragraph in which the panel embraced and encouraged the development of open source software and open content projects in higher education.

Microsoft didn't get everything it wanted, but it got more than half a loaf: as a result of a lot of back-and-forth detailed by Inside Higher Ed, a ringing endorsement ("The commission encourages the creation of incentives to promote the development of open-source and open-content projects at universities and colleges across the United States...") got severely watered down to a pretty mealy-mouthed statement ("The commission encourages the creation of incentives to promote the development of information-technology-based collaborative tools and capabilities at universities and colleges across the United States, ... Both commercial development and new collaborative paradigms such as open source, open content, and open learning will be important ...").

I keep trying to get our university to use more open source software, or at least to offer it as an alternative to the commercial stuff. It's an uphill battle especially at the applications level. Yet I still believe that in a school in which a substantial fraction of the class will end up in very small firms, we have a duty to teach people how to use free tools rather than saddle them with habits which will contribute to high overheads.

RIAA Meets Its Match

RIIA -- the people who are building the spamigation capability to sue each and every of their customers -- officially lost the culture war today. Despite all their efforts to define any form of copying as "piracy," and to frighten children away from fair use, despite their efforts to blanket college campuses with their anti-downloading videos (contains several artful true but misleading statements), on this evening their efforts come to naught: yes, tonight Weird Al Yankovic unveils video for his latest tune, Don't Download This Song. And you can download it now...

I think that even Captain Copyright won't be able to overcome the Weird Al effect on impressionable young minds.

Learning to Love DRM

Ed Felton has a guest blogger who hasn't wasted much time shaking things up. In Rethinking DRM Dystopia David Robinson points out that so far 'the market' (by which he seems to mean the actions of a Very Large Company with a dominant position in one market and a cunning plan to leverage itself into domination into a related one) blunts the effects of DRM in the downloadable music sector. Maybe, he muses, capitalism will correct for the worst excess of DRM as a more general matter?

I confess I'm not persuaded much by this argument since I don't think this example would be generalizable without the existence of the Very Large Company backed by a huge pot of money. I think the iTunes etc. sector is an currently a DRM anomaly, and the fights over anti-consumer hardware HDTV and 'trusted computing' are more the usual case.

But it's an interesting essay, and definitely food for thought.

Creative Commons License Enforceable in the Netherlands

Via GROKLAW, the news that a Dutch court has become one of the first to rule on the validity of a Creative Commons License -- and it held it was valid and enforceable.

This isn't surprising, but it is a significant milestone for Creative Commons.

Free Software, the Public Domain, and the People Who Don't Get It

This article on free software by a Mozilla Foundation staffer (or is he a bannana seller?) is really really funny. Or tragic. Or both.

A little while ago, I received an e-mail from a lady in the Trading Standards department of a large northern town. They had encountered businesses which were selling copies of Firefox, and wanted to confirm that this was in violation of our licence agreements before taking action against them.

I wrote back, politely explaining the principles of copyleft -- that the software was free, both as in speech and as in price, and that people copying and redistributing it was a feature, not a bug. I said that selling verbatim copies of Firefox on physical media was absolutely fine with us, and we would like her to return any confiscated CDs and allow us to continue with our plan for world domination (or words to that effect).

Unfortunately, this was not well received. Her reply was incredulous:

"I can't believe that your company would allow people to make money from something that you allow people to have free access to. Is this really the case?" she asked.

"If Mozilla permit the sale of copied versions of its software, it makes it virtually impossible for us, from a practical point of view, to enforce UK anti-piracy legislation, as it is difficult for us to give general advice to businesses over what is/is not permitted."

On a more serious note, the same cast of mind is visible at WIPO, where it can do far more damage. As EFF notes,

Intellectual property rights are supposed to promote the same goals ["a rich and accessible public domain" -mf], but you'd never know it from the comments of some participants who seemed to fundamentally misunderstand the essential relationship between IP and the public domain. Apparently under the mistaken impression that the public domain is the opposite of intellectual property, these participants claimed that the proposal was outside WIPO's mandate.

EFF's (and Jamie Love & Jamie Boyle's) work is transforming WIPO one post at a time:

The public interest groups continue to subversively write down what's going on and publish it, something that WIPO's Secretariat once described as "abusing WIPO's hospitality" -- normally, the Secretariat would release a report six months after the fact, once everyone quoted in it had the chance to revise the report of what they'd said. EFF and others publish their account of the WIPO deliberations daily -- twice a day, when it's going hot and heavy -- and it gets slashdotted, read by delegates' bosses in their capitols, and distributed. It has a genuinely disruptive effect on the orderly dividing-and-conquering of the world that's underway there.

Superb Anti-Trusted Computing Video

A movie about Trusted Computing is a superb bit of cinematic agitprop, at least for those of us already concerned about so-called Trusted Computing.

I just wish they had explained a bit more how people will be impacted, it might have done a better job of explaining to people why they should care. (You should care because it will keep you from doing many useful legal things you might want to do with your computer and other electronic equipment.)

More on #$%%^*@#$ Lawyers

Since I posted this yesterday, I’ve seen two well-thought-out posts suggesting that the case is a closer one under the DMCA than I gave it credit for. Here’s why I think it isn’t. One of the things I said yesterday was that if there’s a technological protection measure here, it looks like “copy protection rather than access protection, which puts defendants in the clear.” I’ll try to unpack that now.

The DMCA contains three key prohibitions. First, it prohibits you from “circumvent[ing] a “technological measure” that “in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to” a work protected by copyright. Second, it prohibits you from manufacturing, providing, or otherwise trafficking in any technology designed or marketed to do the same thing. Third, it prohibits you from manufacturing, providing, or otherwise trafficking in any technology designed or marketed to circumvent a technological measure that, in the ordinary course of its operation, prevents, restricts, or otherwise limits folks’ ability to copy, publicly display, publicly perform, or make derivative works based on a work protected by copyright.

We don’t need to worry about the second two prohibitions today, because the law firm wasn’t providing anybody with circumvention technology. Rather, the question is: Did the law firm’s banging on the Internet Archive with requests for the page circumvent a “technological measure” that in the ordinary course of its operation “require[d] the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access”?

I don’t think so. This language describes technology that mediates access — that allows access to some people and not to others, depending on whether the person seeking access had properly applied “information, or a process or a treatment,” so that the copyright owner authorized him to get access. Think pay-per-view. Think DivX. The Internet Archive server that the law firm banged on, by contrast, was running code designed to prevent anybody from downloading a copy of the pages in question. Distributing software designed to circumvent that code would fit within the third DMCA prohibition I listed — so if you think that making repeated requests for something can constitute circumvention, then the DMCA might prohibit a person from distributing user-friendly “Internet Archive-banging” software. But nothing in this case implicates the first prohibition.

#$%%^*@#$ Lawyers

Some folks have filed a really silly lawsuit against the Internet Archive and another law firm (news report; complaint). Here’s the story:

A couple of years ago, a law firm called McCarter & English, representing a New Jersey company called Healthcare Advocates, sued a Pennsylvania firm called Health Advocate for trademark infringement. Defendant’s lawyers — a firm called Harding Earley — used the Internet Archive to pull up plaintiff’s old web pages, to help in the defense. It appears that Healthcare Advocates had recently put up a robots.txt file with instructions to block public access to its old pages, but the folks at Harding Earley made a whole bunch of requests, and the pages sometimes displayed anyway.

Healthcare Advocates, represented by McCarter & English, is now suing both the Harding Earley firm — for copyright infringement, violations of the DMCA and the Computer Fraud and Abuse Act, and state-law torts — and the Internet Archive, for breach of contract, promissory estoppel, breach of fiduciary duty, negligence and misrepresentation.

This is silly. The copyright claim against Harding Earley is silly. Setting aside anything else, if there ever were a textbook example of fair use, reproducing a once-publicly available web page because its content was relevant to the proper disposition of a lawsuit would be it. The DMCA claim is, if not silly, at least wrong. It’s hardly obvious that sticking a robots.txt file on your server counts as a technological protection measure within the meaning of the DMCA, since web crawlers are free to ignore such markers if they choose. If plaintiff’s robots.txt file were a TPM, its instruction to the Internet Archive to withhold the file looks to me like copy protection rather than access protection, which puts defendants in the clear. And finally, as Bill Patry has noted, it’s an unworkable reading of the DMCA to say that if you click on a link once and don’t get anything, then you’re illegally “circumventing” by clicking a bunch more times to see if your luck changes.

The silliest claims are the ones against the Internet Archive itself. Take it from me: The Internet Archive didn’t have an obligation under the relevant laws to make sure that that there were no glitches in its implementation of its decision to respect robots.txt.

Sigh …

Grokster Loses (But Sony Rule Lives On)

The Supreme Court handed down the Grokster decision this morning. Full background at EFF’s MGM v. Grokster page.

The Court remanded for trial on Grokster’s infringing intent. The key passages of the unanimous opinion seem to be these. First, the court says that it holds

that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. We are, of course, mindful of the need to keep from trenching on regular commerce or discouraging the development of technologies with lawful and unlawful potential. Accordingly, just as Sony did not find intentional inducement despite the knowledge of the VCR manufacturer that its device could be used to infringe, 464 U. S., at 439, n. 19, mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability. Nor would ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability in themselves. The inducement rule, instead, premises liability on purposeful, culpable expression and conduct,

Yes, footnote 12 does say that,

Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony safe harbor.

But the text finds the evidence against Grokster developed so far to be quite strong. So while this isn’t a disaster for copyright law, it’s not good news for Grokster.

Note that the Ginsburg concurrence, for herself and two other Justices, would set a much tougher standard that would mean you get in trouble for making a popular product regardless of your own conduct:

Even if the absolute number of noninfringing files copied using the Grokster and StreamCast software is large, it does not follow that the products are therefore put to substantial noninfringing uses and are thus immune from liability. The number of noninfringing copies may be reflective of, and dwarfed by, the huge total volume of files shared.

The Breyer concurrence, also for two others, leans the other way, emphasizing the endurance of the Sony standard.

My bottom line: Grokster loses, but the grounds are narrow enough that — in my best guess — Bittorrent survives.

You can compare this to what the real experts will be saying at the SCOTUSBlog Grokster discussion page.

Spanish Lecturer Fired For Defending P2P

Big Copyright beat up on Jorge Cortel and his university caved. Lecturer censored in Spanish University (UPV) for defending P2P networks:

This what happened to me when trying to defend the legal use of P2P networks in Spain.

I have been teaching “Intellectual Property” (although I dislike the term) among other subjects at a Masters Degree in the Polytechnic University of Valencia UPV (Spain) for over 5 years. Two weeks ago I was scheduled (invited by the ETSIA Student Union and Linux Users’ Group for the celebration of “Culture Week”) to give a conference in one of the university’s buildings. During that conference I was to analyze the legal use and benefits of the P2P networks, even when dealing with copyrighted works (according to the Spanish Intellectual Property Law, Private Copy provision, and many research papers, books and court rulings). I was even going to use the network to “prove” that it was legal, since members of the Collecting Society “SGAE” had appeared on TV and newspapers saying that “P2P networks are ilegal” (sic) just like that, and to that extent I even contacted SGAE, National Police, and the Attorney General in advance to inform them about it.

The day before the conference, the Dean (pressured by the Spanish Recording Industry Association “Promusicae” as I found out later, and he recognized himself in a quote to the national newspaper El Pais, and even the Motion Picture Association of America, as another newspaper quotes) tried to stop it by denying permission to use the scheduled venue. So I scheduled a second one, and that was denied again. And a third time. Finally I gave the conference on the university cafeteria, for 5 hours, in front of 150 people.

And so the University fired him later that day (he was untenured). And then they tried to pretended he’d never even been teaching there at all (spotted via Boing Boing).

This is the sort of story I think about every time I read a suggestion that we consider abolishing tenure; this is why tenure matters.

Open Access To Law Reviews Site

Prof. Dan Hunter of Wharton has started a web site, Open Access Law Reviews, “to share information, resource, ideas, and commentary about open access to law review articles.

Cool IP Lawyering Job Available at EFF

EFF is seeking an intellectual property staff attorney for its legal team, based in the Bay Area. Responsibilities will include litigation, public speaking, media outreach, plus legislative and regulatory advocacy, all in connection with a variety of intellectual property and high technology matters.

Qualified candidates should have at least four years of experience with litigation in at least one substantive area of IP law (patent, copyright, trademark, or trade secret) and a solid knowledge of the litigation process. Candidates should also have significant experience managing cases, both in terms of overall case strategy as well as day-to-day projects and deadlines. Candidates should have good communication skills and interest in working with a team of highly motivated lawyers and activists in a hard-working nonprofit environment. Strong writing and analytical skills as well as the ability to be self-motivated and focused are essential. Tech savviness and familiarity with Internet civil liberties and high tech public interest issues preferred.

Interested applicants should submit a resume, writing sample, and references to ipjob@eff.org.

Further details:

• Salary range = $60-70k depending on experience
• Health, dental, and vision benefits

(Plus, you get to work with some really great people.)

More on "Not Just a Good Defense"

Based on some of the comments elsewhere I guess I was too terse in my earlier post on the battle between free speech via technology and the counter-urge to monitor it (a technique which may not be designed to censor but enables censorship). [Good Defense Is Not A Victory. It Just Means You Haven’t Lost Yet.]I agree there have been some good (lower) court decisions in the US, although I remain very nervous about what the Supreme Court will do to them. The problem is, though, that I don’t think that the courts are the major battlefield here. The significant facts, to me, are in the legislature and the executive.

Perhaps the biggest worry is that the fix is in to try to do a CALEA to VOIP: just as they did with old fashioned phones, so now the governments of the world intend to require the service provides to build in the ability to wiretap large numbers of simultaneous internet-based phone conversations. Of necessity, that technology will also work for all other internet-based methods of communication. That’s major. (The cybercrime convention is just a warm-up exercise.)

A secondary issue is the move towards tightening screws on Internet access - more countries are showing an interest following Pakistan and China’s lead in requiring internet cafes and other kiosks to record who uses the service and when so that if something is traced back to that place and time the user can be identified. These are in effect speech licenses.

And, there’s stuff to worry about in the para-copyright realm. We can deal with copyright (trademark, other than famous mark rights expansion, and patent, other than process patents, I generally support more or less as applied). DMCA itself continues to throw an ugly shadow. And I am also concerned about intellectual property style protections for data compilations (databases).

Good Defense Is Not A Victory. It Just Means You Haven't Lost Yet.

Back in the day — going on ten years ago — we thought the ‘net would change the world. We were right about that, but not in the ways we thought — we thought PGP and onion routing and an explosion of free speech meant an end to content control.

We vastly overestimated the speed with which non-techies would take up the toys; the growing and enduring dominance of one software platform that didn’t take up the toys; and especially the ability of the empire to strike back via both tech (trusted user) and law (DMCA and worse).

Some time about four or five years ago, somewhere around the Article 2B/UCITA fight, of necessity we switched to fighting defense instead of offense. And don’t get me wrong, that defense is important. But it’s still defense.

But it’s still disheartening to read real smart people writing that it’s been a good year for those of us concerned about free speech, democracy, and creativity because we beat back the baddies.

I guess I think it wasn’t a bad year, and yes there were some decent court decisions, but I call it not bad only because the hardware tech and the open source is still slowly spreading, and so far at least just keeping ahead of the Empire. And especially because of the growth of ‘offense’ movements such as the free culture movement.

[Sorry for the obscurity of some this post and the absence of links. I’m still digging out from under our move…and I have a ton of work.]

Where Do They Find These Guys?

Tom’s Hardware Guide: Tom’s Hard News:

The record companies’ next witness in the trial, Professor Leon Sterling, Adacel chair of software innovation and engineering, University of Melbourne, has filed two affidavits on his examination of Kazaa Media Desktop (KMD) documents.

In the affidavits, filed in court Tuesday morning, Sterling claimed that whether a system was managed centrally or peer-to-peer was only a design detail, not a technically significant characteristic.

Assuming this report is accurate — never a certainty — you have to wonder what planet this guy is living on. P2P vs. central server is no mere design detail. It’s an entirely different philosophy.

Strange Doings at WIPO

Looks like Jamie Love, EFF and the other goods folks who have been working the refs at WIPO are making enough progress that someone is getting nervous.

UM Drinks the DRM Kool Aid

UM has become one of the first ten universities to sign up for Napster’s “free” online music access. Sadly, this came at the urging of the student government.

For a fixed fee paid by the University, all undergrads get unlimited access to Napster’s music library, from which they download DRM’ed files that can only be copied twice and can’t be put on DVD without paying a dollar per song.

Given the 3.5 year life of the average PC that means today’s freshmen will lose their music libraries around when they get their Ph.D’s.

And this is called “outsmarting the pirates”! More like “outsmarting yourself” I’d think.

For some useful background on this “service”, see the invaluable Ernest Miller’s Notes on Napster’s Matriculation at Penn State, where he collects links so I don’t have to. See also Slashdot’s debate.

Great anti-DRM Screed

Cory Doctrow has a marvelous explanation of why ‘digital rights management’ (building things that don’t let you play digital content the way you want to) is bad business for everyone in the digital food chain. (Spotted via Joho the Blog)

I wish I knew how to make a .pdf file that looked this good and had all these cool clickable features. Wow.

UPDATE: After digesting Cory’s somewhat gentle persuasiveness, have a look at Joho’s own much more pessimistic take on what the pro-DRM people are thinking and doing. Hint:

they’re going to win. They own Congress and neither Congress nor the entertainment cartel sees any reason to compromise. Their Lakoffian frame tells them that they’re stopping theft, end of story. So they are going to kill the Internet and they don’t even know it.

Posner Offers a Creative Vision of 'Fair Use'

Guest blogging for Larry Lessig, Judge Posner offers an interesting idea:

Lawrence Lessig: Bill Patry, a distinguished copyright lawyer and treatise writer, and I have written an article soon to be published in the California Law Review in which we advocate an interpretation of ‘fair use’ that would solve the major problem that extending the copyright term creates. We argue that it should be considered fair use to copy an old work if the copyright owner hasn’t taken reasonable steps to provide notice of his continued rights, as by entering his name and address in a copyright registry. Given such a rule, such registries (which have counterparts in the case of works of visual art) would spring up overnight. Then if an Eldred wanted to publish some old work, he would consult the registry or registries and if no owner was listed (which would usually be the case, because most old works have no commercial value and so their owners won’t bother to try to keep them from falling into the public domain), he could publish it without a license.

I think this underestimates the extent to which conglomerates will protect their backlist, while not keeping it in print, but it’s a start.

Grokster, At Last

The 9th Circuit decided the very very long awaited Grokster case today. The decision is MGM et. al. v. Grokster, 03-55894 (9th Cir. August 19, 2004).

C.E. Petit of Scrivener’s Error has what seems like a sensible take on it:

It does not, contrary to headlines that I have already seen, mean that “file-sharing software is legal.” It means that the plaintiff record companies didn’t (not necessarily couldn’t—just didn’t) establish intent in the same way as was done in Napster. It also creates an extremely fine line between providing a tool used to infringe, which is subject to apparently more-searching analysis, and providing a forum used to infringe, as the record indicates Napster and AOL did, or at least did enough to require a jury to make a definitive determination. Of course, a tool may well be meaningless without the forum. That, however, is for another time; as Judge Thomas emphasized, the tool alone is not unlawful unless the tool itself constitutes an infringement. Think of this as Internet “gun control”: a handgun is not per se unlawful to possess, unless it is actually used in a crime or is a weapon specifically prohibited (such as a fully automatic weapon).

What this really points out is that Congress has done a piss-poor job of drafting the Copyright Act so that it is not held hostage by changing technology.

One Obstacle to Using Gmail

The school’s email is working better today, but I’m wary. Very wary.

Gmail seems like one possible solution to my email woes. I was sent an offer to join a few weeks ago, but dithered so long over choosing a screen name that the offer lapsed. Now I’m re-motivated, and Constantin Basturea kindly sent me a URL to activate an account. But now there’s a new problem: I just read the license terms.

If you read the program policies to which assent is required (along with the privacy policy and terms of use), you find in there a representation that I do not think I can make in good conscience. I’m asked to agree that I will not,

Reformat or frame any portion of the web pages that are part of the Gmail Service

The trouble is, like everyone else I would plan to view my gmail through a browser. Sometimes it’s in a small window. Sometimes it shows text only and no graphics, sometimes all sorts of odd things happent to my desktop, some of them even intentional. Sometimes I have small text, sometimes bigger. And let’s not even talk about the ad blocker…

If this were a prohibition on publishing Gmail content to others in a transformed form, that might be less of a problem, although you have to wonder what this means if I forward the text of an email—do I have to include the ads? What if I only quote a paragraph in a paper I’m writing? But the text quoted above reads as a limit on how I display it to myself, and one which it may be impossible for me to comply with since all browsers “reformat” web pages according to my and the programmer’s instructions.

I would communicate this concern directly to Gmail, indeed in further correspondence no-good-deed-goes-unpunished Constantin Basturea even gave me a URL to use to submit the query…but it requires you have a gmail account to write to them.

I've Switched to Creative Commons 2.0

I’ve switched the license for this blog to version 2.0 of the Creative Commons Attribution-NonCommercial-ShareAlike License, as indicated by this nice gif:

Creative Commons offers a discussion of the differences between version 1.0 and 2.0.

Another Educational Institution Surrenders to Fear

Ed Felton reports on the Educause Policy Conference in Washington,

Freedom to Tinker: Penn State: No Servers in Dorms: One of the most interesting parts of the day was a brief presentation by Russ Vaught, the Associate Vice Provost for IT at Penn State. He said that Penn State has a policy banning server software of all kinds from dormitory computers. No email servers; no web servers; no DNS servers; no chat servers; no servers of any kind. The policy is motivated by a fear that server software might be used to infringe copyrights.

Having banned things like student-served blogs and wikis, I hear that they are planning to ban typewriters and pens next. Never know what mischief they might get in to.

I Start A Legal Academics' "Copyright Experiences Wiki"

Prompted by discussions on various law professor mailings lists of abusive copyright demands by law reviews and legal publishers, I’ve set up a quick wiki for legal writers to document their copyright experiences.

I don’t know if law professors — many of whom will have never seen a wiki before — can be persuaded to contribute to this, especially as the instructions I’ve provided are pretty light weight. But it would be nice if this caught on.

So if you have ever published in a law review or a book with an academic press that does legal topics, please consider adding your copyright experience to this database.

Ed Felton Explains the DRM Designer's Mindset

Ed Felton has been peering into the mindset of the DRM designer. And what he sees is wheels missing a few cogs:

Freedom to Tinker: A Perfectly Compatible Form of Incompatibility: The whole point of DRM technology is to prevent people from moving music usefully from point A to point B, at least sometimes. To make DRM work, you have to ensure that not just anybody can build a music player — otherwise people will build players that don’t obey the DRM restrictions you want to connect to the content. DRM, in other words, strives to create incompatibility between the approved devices and uses, and the unapproved ones. Incompatibility isn’t an unfortunate side-effect of deficient DRM systems — it’s the goal of DRM.

A perfectly compatible, perfectly transparent DRM system is a logical impossibility.

The idea is so odd that it’s worth stopping for a minute to try to understand the mindset that led to it. And here [Leonardo] Chiariglione’s [the creator of the MP3 music format and formerly head of the Secure Digital Music Initiative] comments on MP3 are revealing:

[Scientific American interviewer]: Wasn’t it clear from the beginning that MP3 would be used to distribute music illegally?

[Chiariglione]: When we approved the standard in 1992 no one thought about piracy. PCs were not powerful enough to decode MP3, and internet connections were few and slow. The scenario that most had in mind was that companies would use MP3 to store music in big, powerful servers and broadcast it. It wasn’t until the late ’90s that PCs, the Web and then peer-to-peer created a completely different context. We were probably naïve, but we didn’t expect that it would happen so fast.

The attitude of MP3’s designers, in other words, was that music technology is the exclusive domain of the music industry. They didn’t seem to realize that customers would get their own technology, and that customers would decide for themselves what technology to build and how to use it. The compatible-DRM agenda is predicated on the same logical mistake, of thinking that technology is the province of a small group that can gather in a room somewhere to decide what the future will be like. That attitude is as naive now as it was in the early days of MP3.

Alas, what Ed leaves out is the attitude of the folks who hire DRM designers. They may know perfectly well that other machines can be built to defeat their systems. But they are prepared to make it all illegal (pace DMCA), and use the courts and the cops to spread fear and generally decrease respect for the legal system as it tries to hold back the tide.

Groklaw Scribes Eben Moglen

Groklaw has put online a transcription of my friend Eben Moglen’s latest public speech. (Eben is a professor at Columbia law and also general counsel for the Free Software Foundation.) A Moglen speech is a performance. It is a provocation. It is darned good fun, and gives you much to think about. And this one is also about SCO, and patents, and freedom — it’s always about freedom. Enjoy.

Contracts and Bondage

I like this: Contracts and Bondage, a web site run by Maximillian Dornseif, he of the interesting disLEXia 3000 blog.

No, it’s not what you think. It’s worse: “A collection of EULAs and other ‘contracts’ one comes across when using a computer.” He invites submissions.

Judge Holds SCO's Feet to the Fire

Old news I’m just catching up on…
Sounds like justice grinding slowly forward to me: SCO Loses First Legal Round in Linux Battle

A federal [magistrate] judge told SCO it has 30 days to respond to IBM’s demands for details about the Linux code SCO claims encroaches on its intellectual property.

Magistrate Brooke C. Wells said that SCO will have to answer IBM interrogatories 12 and 13, which demand that SCO produce “all source code and other material in Linux … to which plaintiff (SCO) has rights” and describe exactly how SCO believes IBM infringed these rights. The judge’s order will be put into place on Wednesday, Dec. 10.

In addition, Ogden, Utah-based SCO must reveal all instances in which it has distributed Unix source code in ways that would lead to it being legally added to Linux. This ruling addresses a contention by Linux advocates that any Unix code in Linux was placed there by SCO itself.

In short, SCO will have to show IBM proof that its claimed “million lines of code” are actually in Linux, and that IBM, not SCO, was responsible for illegally placing the code there.

Which, if you’ve been reading your Groklaw it is exceedingly unlikely that SCO can do…

Linking as Civil Disobedience

Lawmeme asks How Direct is Too Direct When It Comes to Hyperlinks?

Let’s see. Can’t host the files. Can’t link to the files. Can’t link to a site with the files. Where will the madness end? This is the Internet. Hyperlinking doesn’t supply easy dividing lines, and when you start telling people what they can and can’t link, you start murderizing the Web.

Then they give links to

• a site with the memos
• a site that links to a site with the memos.
• a site that links to a site that links to a site with the memos.
• a site that links to a site that links to a site that links to a site with the memos.

Then, there’s the kicker:

Here’s a link to a site that links to a site that links to a site that links to a site that links to a site with the memos. Whoops, that’s the Diebold home page.

My own personal view is that a hyperlink is and should be every bit as illegal as a footnote in an academic article.

IP Justice Says that FTAA Got Infected With Lousy IP Rules

I generally avoid trade law and trade treaties, on the grounds that life is too short. The way trade law is going, however, I may have to make some exceptions. I’ve already had to read up on the dispute settlement rules in major trade treaties to teach International Law, which I’m doing for the first time this year.

Now, IP Justice, a civil liberties group, has just published FTAA: A Threat to Freedom and Free Trade. In it they analyze the Intellectual Property parts of the draft Free Trade Area of the Americas Treaty which is intended to go into effect in 2005. Their summary is scary enough that I think I’ll have to go read the full agreement and see if it is as bad as they say. [Note: Headline corrected.]

The FTAA seeks to unite the 34 democracies in the Western Hemisphere (including the US) to a single trade agreement akin to NAFTA. Parts of the treaty take an aggressive position on harmonization issues—and these are among the controversial parts.

According to IP Justice’s summary, the draft intellectual property rights chapter in the FTAA Agreement will expand criminal procedures and penalties against intellectual property infringements throughout the Americas. One proposal in Article 4.1, they say, would make Internet music swapping a felony throughout the Western Hemisphere in 2005.

Worse, apparently the proposed agreement forbids consumers from bypassing technical restrictions on their own CDs, DVDs and other property, similar to the controversial US Digital Millennium Copyright Act (DMCA). That would ‘lock-in’ the DMCA — just at a time when proposals to repeal part of it are gathering some steam in US Congress.

Ironcially, for a “free trade” agreement, the FTAA would enshrine price discrimination by making illegal to bypass trade barriers such as DVD region code restrictions.

Other frightening stuff in the IP Justice summary:

The draft treaty also imposes new definitions for “fair use” and “personal use,” curtailing traditional fair use and personal use rights to a single copy and only under limited circumstances. This prevents consumers from backing-up their media collections, using their media in new and innovative ways, and accessing media for educational and non-commercial purposes.

Another clause would require all countries to amend their copyright laws to extend copyright’s term to at least 70 years after the life of the author, essentially forcing the new US standard on all other 33 countries in the hemisphere. Although forbidden by the US Constitution, FTAA’s copyright section would allow companies to copyright facts and scientific data.

Another provision requires all domain name trademark disputes to be decided by the Internet Corporation for Assigned Names and Numbers (ICANN), a private and unaccountable organization that is ill equipped to determine the limits of freedom of expression rights or the scope of intellectual property rights. Americans would no longer have access to their local public courts to adjudicate rights over their Internet domain names. [I really got to check this out — that sounds dubious — as the current and highly flawed ICANN procedure provides for subsequent court actions….]

“The FTAA Treaty’s IP chapter reads like a ‘wish list’ for RIAA, MPAA, and Microsoft lobbyists,” said IP Justice Executive Director Robin Gross. “Rather than promote competition and creativity, it is bloated with provisions that create monopolies over information and media devices,” stated the intellectual property attorney.

The next round of FTAA Treaty negotiations will be here in Miami from November 16-21, 2003. Looks like I better read it by then….

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