Category Archives: Law: Copyright and DMCA

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.

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.

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.

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.