DocBug

Creative Commons launches tool to reclaim rights 

From the Creative Commons weblog:

Creative Commons is excited to launch a beta version of its “Returning Authors Rights: Termination of Transfer” tool. The tool has been included in ccLabs — CC’s platform for demoing new tech tools. It’s a beta demo so it doesn’t produce any useable results at this stage. We have launched it to get your feedback.

Briefly, the U.S. Copyright Act gives creators a mechanism by which they can reclaim rights that they sold or licensed away many years ago. Often artists sign away their rights at the start of their careers when they lack sophisticated negotiating experience, access to good legal advice or any knowledge of the true value of their work so they face an unequal bargaining situation. The “termination of transfer” provisions are intended to give artists a way to rebalance the bargain, giving them a “second bite of the apple.” By allowing artists to reclaim their rights, the U.S. Congress hoped that authors could renegotiate old deals or negotiate new deals on stronger footing (and hopefully with greater remuneration too!!). A longer explanation of the purpose of the “termination of transfer” provisions is set out in this FAQ.

Basically their tool is designed to help authors and artists navigate the legal waters and reclaim their copyrights. From Lessig's blog:

Why is this a Creative Commons project? We've seen CC from the start as a tool to help creators manage an insanely complicated copyright system. When we have this running, we'll offer any copyright owner who has reclaimed his or her rights the opportunity to distribute the work under a CC license. But that will be optional. Right now, we're just offering the tool to make it simpler for authors to get what the copyright system was intended to give them.

EFF Patent Busting 

EFF has a call out for prior art to help bust two broad patents:

The Patent Busting Project fights back against bogus patents by filing requests for reexamination against the worst offenders. We've successfully pushed the Patent and Trademark Office to reexamine patents held by Clear Channel and Test.com, and now we need your help to bust a few more.

A company called NeoMedia has a patent on reading an 'index' (e.g, a bar code) off a product, matching it with information in a database, and then connecting to a remote computer (e.g., a website). In other words, NeoMedia claims to have invented the basic concept of any technology that could, say, scan a product on a supermarket shelf and then connect you to a price-comparison website. To bust this overly broad patent, we need to find prior art that describes a product made before 1995 that might be something like a UPC scanner, but which also connects the user to a remote computer or database. Take a look at the description and please forward it to anyone you know who might have special knowledge in this area. You can submit your tips here.

Also in our sights is a patent on personalized subdomains from Ideaflood. For example, a student named Alice might have personalized URL 'http://alice.university.edu/' that redirects to a personal directory at 'http://www.university.edu/~alice/.' Ideaflood says that it has a patent on a key mechanism that makes this possible. We need prior art that describes such a method being used before 1999, specifically using DNS wildcards, html frames, and virtual hosting. Prior art systems might have existed in foreign ISPs, universities, or other ISPs with web-hosting services. You can submit tips here."

I'll betcha there's prior art in the augmented reality field that reads on the first patent, either from Steve Feiner's group at Columbia or maybe even the stuff we were playing with at the Media Lab. (I'll go rooting around once I meet a different deadline I'm spending my evenings on...)

Finally a patent that admits to bogus claims! 

There are so many bogus claims in patent applications these days it's kind of nice to see an application that comes right out and admits it (via The Volokh Conspiracy):

9. The method of providing user interface displays in an image forming apparatus which is really a bogus claim included amongst real claims, and which should be removed before filing; wherein the claim is included to determine if the inventor actually read the claims and the inventor should instruct the attorneys to remove the claim.

patently obvious 

patently obvious, adj. An idea so blazingly obvious, only the patent office would think it novel enough to patent.

Breaking iTunes Music Store DRM 

A couple weeks ago QTFairUse was ported to iTunes 6. Yes, it was just in time for Apple to release iTunes 7, but it looks like it's also working at least for on music purchased with iTunes 7 as well.

Unfortunately, it's Windows only (and still a little unstable I gather), but hopefully this means JHymn will soon be updated to work on the latest iTunes. Then maybe I'll actually start purchasing from the iTunes Music Store again...

Don't Download This Song 

Check out Weird Al's latest hit "Don't Download This Song". Video e-card and, of course, downloadable MP3 are available at www.dontdownloadthissong.com. (Via DrWex at Copyfight)

Another reason for Open Source 

Open Source means never having to say "You own my ass." Via Wired:

The robot that parks cars at the Garden Street Garage in Hoboken, New Jersey, trapped hundreds of its wards last week for several days. But it wasn't the technology car owners had to curse, it was the terms of a software license.

The garage is owned by the city; the software, by Robotic Parking of Clearwater, Florida.

In the course of a contract dispute, the city of Hoboken had police escort the Robotic employees from the premises just a few days before the contract between both parties was set to expire. What the city didn't understand or perhaps concern itself with, is that they sent the company packing with its manuals and the intellectual property rights to the software that made the giant robotic parking structure work.

(Thanks to Nerfduck for the link!)

Just google it 

As googling joins xeroxing as a verb listed in the OED and Merriam-Webster dictionary, former Google Director of Consumer Marketing and Brand Management Doug Edwards reflects on the legal silliness required to not lose your trademark (via Google Blogoscoped).

So how long did it take Xerox to be added to the dictionary?

Cornell cracks European GPS DRM 

Galileo is the EU's first global navigation system, and unlike the US GPS system is partially funded by private investors. Part of their business model is to sell their data, so they've added noise to the signal using a pseudo-random number sequence, with the intention of selling the "offsets" to licensed manufacturers of GPS receivers. Now researchers at Cornell have decoded that sequence, using statistical analysis of the signal. From the Cornell press release:

Afraid that cracking the code might have been copyright infringement, Psiaki's group consulted with Cornell's university counsel. "We were told that cracking the encryption of creative content, like music or a movie, is illegal, but the encryption used by a navigation signal is fair game," said Psiaki. The upshot: The Europeans cannot copyright basic data about the physical world, even if the data are coming from a satellite that they built.

The moral of the story: just because people benefit from your work doesn't mean they've agreed to pay you, and business plans don't carry the force of law.

(Thanks to Lenny for the link!)

How do you attribute someone who doesn't give his name? 

A few weeks ago a coworker came to me with a conundrum: he was writing an academic paper and needed a picture of a certain kind of cloud to illustrate a point he was making. He used the Creative Commons search engine and found an image on Flickr.com that both fit his needs and was released under a license that only required that he give attribution to the photographer. Only one problem: the photographer's Flickr page didn't list his real name or contact info anywhere. Just a handle... "Cyberdude," or something like that.

If he was just using this photo to illustrate a blog entry, my coworker would probably have just said "Photo curtsey of Cyberdude" and with a link to this guy's Flickr page, but there was no way he was going to say that in a professional academic paper. He could have created a Flickr account and left a comment asking for permission and the photographer's real name, but that's the kind of effort to gain permission that Creative Commons licenses were specifically designed to avoid. No doubt the photographer didn't list any contact info to avoid spammers or stalkers, but that need conflicts with the needs specified by his license. A Catch-22.

Could the music industry actually be getting a clue? 

Honestly, I never expected something this sensible (albeit obvious) to come out of a Big Music executive's mouth:

"If we can convert 5, 10, 15 per cent of the peer-to-peer users that have been obtaining our product from illegitimate sources to becoming legitimate buyers of our product, that has the potential of a huge impact on our industry and our economics," Kevin Tsujihara, president of the Warner Bros. Home Entertainment Group, said.

Context: Warner Brothers has inked a deal with BitTorrent to help them sell online movie downloads. It sounds like they still want to charge monopolistic prices ('cause hey -- they're a government-protected monopoly) and I wouldn't be surprised if they include DRM that forces paying customers to enjoy their viewing experience while locked in a small cupboard and peering through a keyhole, but it's a start!

What rights? 

Guest-blogging for Larry Lessig, Tim Wu asks why movie studios pay for the rights to newspaper stories:

In 1997, the New York Times reported on the story of Tim “Ripper” Owens, who rose from being a lifelong Judas Priest fan to becoming the actual lead singer of Judas Priest...

Great writing and a great story. Good enough to inspire the 2001 film Rock Star, starring Mark Wahlberg and Jennifer Aniston, for which, I am told, Warner Bros. paid the New York Times for the movie rights.

But wait -- what movie rights? According to basic copyright law, and as interpreted by the Supreme Court, the facts of Ripper Owen's life are free to be used by anyone. There is, according to the law, almost nothing to purchase. Reading the story out loud during the film would be a copyright violation, but under U.S. law, little else would borrow the expression as opposed to the facts.

It's a question I've asked myself a couple times in the past few months. The first time was when I saw a booth selling old historical photos at a local arts festival. The company, Photos of Old Amercia, had claimed to have a copyright on each of the photos, even though the woman in charge said she mostly found old pictures from libraries and collections and usually never had any clue who the original photographer was. Some of the photos have been retouched, and Photos of Old America would own the copyright on those changes. However, near as I can tell the company is itself violating the copyright on most of these photos, figuring (correctly) that they'll probably get away with it.

The second time was when I learned about Zorro Productions, Inc., which decades ago bought all the rights to Zorro™, the legendary masked hero first introduced by Johnston McCulley in The Curse of Capistrano in 1919. Apparently if you want to make a play, movie, book or even appearance at a local mall about Zorro™ you have to license the rights from Zorro Productions first. But what rights? The copyright on The Curse of Capistrano expired ages ago and is in the public domain, as is the 1920 Douglas Fairbanks classic movie The Mark of Zorro. That leaves trademark law, which (in theory anyway) only applies so far as consumers might be confused as to the source or producer of a product or service. Raise your hands out there if you knew Zorro Productions, Inc. owned the licensing rights to Zorro™ before now, or would assume when you went to a Zorro™ movie that it would be protected by that company's good name.

Unfortunately, in practice it doesn't seem to matter what the law actually says. By licensing these non-existent rights, powerful companies like Sony Pictures gain a powerful threat over potential competitors, namely the ability to scare away financiers and potential partners with a simple cease-and-desist letter. When it comes to intellectual property, might makes rights is all too often the true law of the land.

Where's Zorro when you need him?

Statement of fair use in documentary films 

My brother is working on a documentary called Reality Made Over, about Fox's plastic-surgery reality TV show "The Swan". Of course, since his subject matter television there're lots of questions about what he needs permission to use and what counts as fair use under copyright law. Talking to him about it reminded me of the recent Documentary Filmmakers' Statement of Best Practices in Fair Use that was put out by several associations of video and filmmakers, in consultation with the Center for Social Media at American University.

From their introduction:

This Statement of Best Practices in Fair Use makes clear what documentary filmmakers currently regard as reasonable application of the copyright “fair use” doctrine. Fair use expresses the core value of free expression within copyright law. The statement clarifies this crucial legal doctrine, to help filmmakers use it with confidence. Fair use is shaped, in part, by the practice of the professional communities that employ it. The statement is informed both by experience and ethical principles. It also draws on analogy: documentary filmmakers should have the same kind of access to copyrighted materials that is enjoyed by cultural and historical critics who work in print media and by news broadcasters.

Darknet Mashup 

Cute mashup about Darknets by J.D. Lasica (via DJ Ripley)

Sony BMG DRM-rootkit settlement 

Sony BMG recently settled the class-action lawsuit brought by EFF over their DRM-rootkit fiasco. If you purchased one of the 113 CDs that were affected, you're probably eligible for some combination of cash payment, replacement CD and/or free music download. Just click here or on the image to the right for details.

Battery cost of DRM 

MP3.com has the skinny on battery life for portable music players, with this little gem on how much decoding the DRM on purchased music costs you:

Take, for instance, the critically acclaimed Creative Zen Vision:M, with a rated battery life of up to 14 hours for audio and 4 hours for video. CNET tested it at nearly 16 hours, with MP3s--impressive indeed. Upon playing back only WMA subscription tracks, the Vision:M scored at just more than 12 hours. That's a loss of almost 4 hours, and you haven't even turned the backlight on yet.

We found similar discrepancies with other PlaysForSure players. The Archos Gmini 402 Camcorder maxed out at 11 hours, but with DRM tracks, it played for less than 9 hours. The iRiver U10, with an astounding life of about 32 hours, came in at about 27 hours playing subscription tracks. Even the iPod, playing back only FairPlay AAC tracks, underperformed MP3s by about 8 percent.

In other words, you pay between 8 and 25% of your battery life for the privilege of not being able to listen to your music where ever you want... now that's customer service!

(Thanks to Nerfduck for the link!)

Update 3/23/06: Some folks are pointing out that comparing WMA or AAC format with DRM to MP3 isn't a fair test since it conflates the effect of DRM with the effect of the format itself (a fair test would be to compare WMA with DRM to the same files without DRM). And Ed Felten at Freedom to Tinker comments that regardless of whether the test compares apples to oranges, wouldn't it be nice if we could choose which fruit we wanted to eat?

Educational comic on copyright and fair use 

Check out Bound By Law: Tales from the public domain, a comic about fair use and copyright in documentary filmmaking written by a cartoonist, a columnist and a filmmaker, all of whom also happen to be law professors specializing in intellectual property. Available for free download or paper-book purchase, and licensed under a Creative Commons Attribution-NonCommercial-ShareAlike license.

(Link via Dr. Wex at Copyfight.)

USACM policy statement on Digital Rights Management 

Ed Felton has just posted a new policy statement on DRM from the U.S. public policy committee of the ACM, the main professional society for computer science. (The ACM has also posted the policy in PDF form.) Looks like a good set of recommendations — the highlights are that no specific DRM should be legally mandated and that DRM should be used to enforce existing copyrights, to assert new legal rights or to interfere with consumer behavior that's unrelated to the copyrighted items being managed. Though not named specifically, those two points sound like a pretty clear condemnation of the Broadcast Flag and the anti-circumvention clauses of the DMCA.

We have to protect our content... 

DocBug exclusive: Anheuser-Busch, the owner of the popular American beer brands Budweiser and Bud Light, is suing the Disney-owned ABC television network for copyright violation after ABC's broadcast of ads for the two beers during this year's Superbowl. In a statement, Anheuser-Busch lawyers said the fact that the disputed segments were ads for their own products did not excuse ABC's behavior, nor did fact that Anheuser-Busch had paid $26 million to have them aired. "We have to protect our content," explained one executive.

ABC executives said they could not comment on ongoing litigation, but that they were considering filing a similar suit against themselves for the broadcasts of ads for Desperate Housewives and Lost during the game.

(Thanks to Wendy Seltzer for something resembling the link.)

Infallibly copyrighted 

The news last week was that the Vatican is now enforcing their copyright on the Pope's writings, including ex-cathedra pronouncements which according to Church doctrine are written "with the assistance of the Holy Spirit".

Which to me just begs the question: who owns the copyright on these pronouncements anyway, the Pope or the Holy Spirit? Was this a work for hire?

iPods for the Senate 

The "balanced intellectual-property policy" advocacy group IPac has a new campaign to educate senators about media in the Internet Age by sending them iPods:

Last week, the U.S. Senate Committee on Commerce, Science, and Transportation held a hearing on the "Broadcast Flag" and "Audio Flag," a set of proposals by the MPAA and RIAA that would stifle innovation by giving content holders a virtual veto over new technologies and existing user rights.

But Senator Stevens, the 82-year old committee chairman from Alaska, surprised the audience by announcing that his daughter had bought him an iPod, and suddenly Stevens had a much greater understanding of the many ways innovative technology can create choice for consumers. Content industry representatives at the hearing found themselves answering much tougher questions than they typically receive.

I'd thought this same thing when I first read about Senator Stevens, but figured it'd be illegal for Senators to accept the iPods as gifts. IPac's FAQ says they're donating these to the Senator's campaign offices (for use in campaign-related activities) and so they get around the rules — whether the Senators will accept them given the current scrutiny over lobbying scandals is another question.

(Thanks to Amy for the link!)

GPLv3 and the DMCA 

The Free Software Foundation has posted a draft version of the new General Public License v3.0, and are soliciting comments. One thing that caught my eye is language intended to make it more difficult for people using GPLed code in DRM systems:

3. Digital Restrictions Management

As a free software license, this License intrinsically disfavors technical attempts to restrict users' freedom to copy, modify, and share copyrighted works. Each of its provisions shall be interpreted in light of this specific declaration of the licensor's intent. Regardless of any other provision of this license, no permission is given to distribute covered works that illegally invade users' privacy, nor for modes of distribution that deny users that run covered works the full exercise of the legal rights granted by this License.

No covered work constitutes part of an effective technological protection measure: that is to say, distribution of a covered work as part of a system to generate or access certain data constitutes general permission at least for development, distribution and use, under this License, of other software capable of accessing the same data.

I gather the second paragraph is intended to grant specific permission to reverse-engineer and make derivative works under the DMCA. It's an interesting tactic, but I'm not sure how often the licensor of the software (and thus the person granting general permission) would also own the copyright on the data being produced. If I make a DRM-enabled video-player and you break my crypto on the new Disney movie it's playing, isn't it Disney who'll come after you under the DMCA? What difference does it make if you have my permission?

Keyboard not found, press any key to continue... 

I just installed TurboTax Deluxe 2005 for the Mac (Intuit annoys me, but TaxCut discontinued their Mac version). Their installation program includes the following End-User Licence Agreement dialog-box::

Notice anything missing in this agreement that asks me to confirm that I've read and printed a copy? Like, say, a way to actually print the stupid thing? No print button, no menu items functioning, not even a way to resize the tiny window. About 20% of the way down (just below the part saying I agree to notify them promptly if my email address changes) is a note saying:

(f) Printing. You may print this document by clicking on the print button or by going to the TurboTax web site at www.turbotax.com to access and print a copy of it.

Of course, there's no print button and no indication of where on their website this elusive copy of the EULA can be found (I eventually found the link in the fine print at the very bottom of their page).

And I'm trusting these guys with my taxes?

Patent pending 

Random factoid of the day:

• Average time between filing a patent in the US and it being granted or abandoned, in 1995: 19.2 months.

• Average time in 2005: 29.1 months

• Year that, at current rates, patents will be pending for their entire 20-years-from-date-of-filing lifespan: 2198

And the first OSX Trojan in the wild goes to... Sony? 

Last year there was a bunch of hoopla about the "first Mac OS X Trojan Horse", a claim that was quickly dismissed as being a non-issue since it was just a proof of concept and wasn't found in the wild.

Now it looks like we may have the first real Trojan for OS X found in the wild... being distributed by Sony. According to a tip published in Macintouch (and reported in The Register), Sony BMG is is including Mac-aware DRM software from Sunncomm in their new release of Imogen Heap's CD Speak for Yourself. The application, innocuously called Start.app, installs two kernel extensions that implement Suncomm's DRM scheme.

In their defense (legal, if not moral) the software does pop up an End User License Agreement that tells you what they're going to do — and I'm sure you all read those EULAs in their entirety before clicking OK, right?

5000 years of prior art is "limited"? 

The US Patent & Trademark Office just published an application for a patent on a particular storyline, filed by rocket-scientist-turned-patent-agent Andrew Knight [Register article]. If granted (a big if) this could open literary plots to patent protection much like the 1980 Supreme Court case Diamond vs. Diehr opened the way for patents on software and algorithms.

I'll leave the debate on the legal points to the experts, but I can't help but imagine all the engineers in the Patent Office trying to decide whether Knight's plot idea is both novel and non-obvious to one well-versed in the field of story-writing. In a way, the situation is very much like 1980, when the USPTO wouldn't hire computer scientists to evaluate software patents because they only hired people with "Engineering" in their degree. Sure, the evaluators would catch if someone tries to patent the plot to The Matrix: Reloaded, but will they recognize a plot from an obscure Henry James novel, or one only published in Chinese?

The significance of this lies in how prior art is handled differently by copyright and patent law. Plots are currently covered under copyright law, though unlike patent law there are no "claims" that are written out in advance to specify just how different a new work must be before it no longer infringes. The key difference for prior art is that copyright only protects actual copying of an expression of a work. If you write a screenplay and then I produce an almost identical screenplay without your permission, that's only illegal if I actually copied your work. If I can convince a jury that I'd never even seen your work and we just happened to come up with the same idea at the same time, I'm off the hook. In fact, in that situation both of us could hold copyrights on our respective versions, regardless of their similarity. Prior art in copyright cases is really just two simple questions of fact: did you come up with your work yourself (i.e. not copy from anyone else), and if so then did I copy your work?

Patents, on the other hand, can be infringed whether or not the infringer knows the patent exists. If you and I both independently create the same invention (which happens more often than you'd think) then whoever filed for the patent first (or in the US, whoever invented first) gets exclusive right to the invention. The flip-side is also true: if the process you are trying to patent has already been published then you can't patent it, even if you never knew about the prior art. For both parties to a suit, copyright treats originality as anything that came from the author's head, while patent law treats originality as anything that is literally new under the sun.

Knight's page discussing the expected value of a storyline-patent application emphasizes the prior-art problem with a rather chilling assertion:

The breadth of Storyline Patent protection available, before the Federal Circuit approves Storyline Patents and the floodgates to the Patent Office open, is far greater than after. Beat your competitors to the Patent Office and be among the first applicants to enjoy examination over limited prior art. [Emphasis mine]

From that quote you might think that the only prior art checked for a patent is that which already exists in the patent database. That may even be true in practice, due to examiners' limited expertise and resources, but as I already pointed out, for patents prior art includes anything that has ever been published or disclosed. Ever. If you're patenting a new automobile engine then that's a relatively bounded problem — the gas engine was invented less than 150 years ago, and the field of engine design is relatively small. Other technical fields are similarly bounded because technological innovation tends to be incremental, building on top of prior inventions like towers extending into a downtown skyline.

Stories, on the other hand, can emerge from anything connected to human experience. If new technology is built on top of the old like a densely-packed downtown, stories are like wind-carried seeds that can take root almost anywhere. This is not to say that every story is unique — on the contrary, after 5000+ years the landscape is fairly crowded. Sure you can set your story of star-crossed lovers on the West Side of New York instead of Verona, but the difference between your new plot and prior art (and thus what your claims could cover) will be pretty narrow. But that's only true if someone can actually find the particular stories that read on your claims.

I suspect (and certainly hope) that this application will be rejected and the whole question will be moot, but I could very well be wrong: the trend for the last 25 years or so has been towards granting more exclusive rights to content holders, not fewer. Luckily, I also don't expect a disaster even if we do see storyline patents in our future. Precisely because stories are such a broad field, a 20-year limited monopoly just doesn't have the same detrimental effect on innovation like a patent on a key technology can. And compared to the lifetime of an author plus 70 years (plus an additional 20 years every 20 years), a single 20-year government restriction on the free market of ideas sounds like a bargain.

Sony BMG installing rootkits when you play a CD 

So what marketing genius over at Sony BMG decided that rootkitting the PC of anyone who plays their CDs is a good way to attract customers?

Every time I think the recording industry is going to get a clue, they just go further off the deep end. Next thing you know they'll be secretly bugging our bathrooms to keep us from illegally singing "their" songs in the shower...

Update 11/2/05: Declan McCullagh over at Politech asks an interesting question: Does this rootkit constitute a "technological measure that effectively controls access to a [copyrighted] work?" If so, would removing the rootkit from your own system constitute a violation of the DMCA?

Jack Radio 

The latest buzz buzz in FM music formats is Jack-FM, a nationally syndicated format that eliminates DJs and replaces them with essentially random shuffle-play (the rough transitions between radically different songs is part of the charm). The playlist is pulled from a library of around 1,200 songs, about 3-4 times that of a traditional station, though all songs have to have been in the top 40 in the last 40 or so years. Jack-FM's website attributes their success to the iPod making people comfortable with shuffle-play:

Random acts of greatness “jack” radio. Several kajillion iPod™ users can’t be wrong. Thanks to the shuffle feature, hearing different styles of music one after another feels completely natural, and desperate radio programmers have taken notice. The “Jack” format—so named for its Everyman inclusiveness—is popping up in every market to save commercial radio from obsolescence.

I'm skeptical about Jack "saving commercial radio from obsolescence" — it sounds more like the blowing of taps to me. Way back when, before the days of top-40 or Clear Channel, DJs actually added value through their extensive record collections and expert knowledge of who the hot new groups were. But that was then, and by eliminating DJs altogether, Jack is declaring that the job music-radio DJs do today can be done just as well and more cheaply by a random-number generator.

That may be true, but I have to wonder if the radio stations embracing this format have thought this cynical line of thinking all the way to its conclusion. If Jack is so wonderful because it emulates my iPod on shuffle play, then why the heck do I need their advertisement-filled, frequency-hoarding broadcast at all? Sure, 1,200 songs is better than 300, but my iPod holds over ten times that many songs, lets me skip songs, lets me pick my own formats and lets me share my playlists with my friends — all ad-free. The only advantages broadcast has over the iPod are expert DJs (which they're eliminating), installed base of radios (which iPod-like technology will eventually match), and the arcane copyright laws that give radio broadcasters a way to legally broadcast without needing to pay the RIAA or recording artists (though they still pay song writers through BMI or ASCAP.) Even in the slow and bloody copyright wars, that third advantage is also slipping away. Today I can fill my iPod from an all-you-can-eat subscription service, from Creative Commons and other legal free-download sites, or from a number of less legal sources, and other sources keep rising. Once it becomes ubiquitous, why would we as a society keep granting exclusive rights to scarce public radio frequencies for such an archaic way to transmit music?

JHymn unable to strip DRM from iTunes 6.0 purchases 

Looks like JHymn is not able to strip the DRM off of any music or video purchased through iTunes 6.0, and that the new videos purchasable from the iTunes Music Store can only be played using iTunes 6. (Also note that you can't easily revert to iTunes 5 after upgrading to iTunes 6.) Music that has already had the DRM stripped by JHymn will still play in iTunes 6.

It could be a bit of a wait before they reverse-engineer the new iTunes protocol. and until then I think I'll pass on making purchases from their music store. If I'm going to give my hard-earned money for music, it'll be a form where I can play it where I want, loan it to a friend or sell it to a used record store when I'm tired of it. The iTunes Music Store is great for convenience, but it's short-term convenience in exchange for long-term pain.

Yes, Virginia, downloading copyrighted material without permission is illegal... 

There's a myth I keep hearing that downloading copyrighted music without permission is perfectly legal under US law, and that only uploading is illegal. (I just got an anonymous comment on an old post to that effect, which is why I bring it up now.) I gather the myth spread after the RIAA decided to go after big uploaders but not big downloaders in their jihad, and was bolstered by a NYTimes piece that starts with the line "Downloading music from the Internet is not illegal."

Unfortunately for would-be downloaders, this is just a myth, as the 9th Circuit's ruling in A&M Records v. Napster makes clear:

We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holders’ exclusive rights: the rights of reproduction, § 106(1); and distribution, § 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffs’ distribution rights. Napster users who download files containing copyrighted music violate plaintiffs’ reproduction rights.

The US Copyright Office's FAQ also puts it quite plainly:

Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner's exclusive rights of reproduction and/or distribution.

So what did that old NYTimes article mean when it said downloading is legal? Simply that there is plenty of music available where the copyright holders have already given permission for you to download, share and enjoy. And that, Virginia, is why there is a Santa Claus.

CVS disposable video camera uncrippled... 

With a textbook give away the razors and sell the blades strategy, on June 26th CVS started selling a "one-time-use" video camcorder for just $29.99. Buy it, take your movie, and then get a DVD of your movie for just $12.99 at the CVS photo lab.

Just 39 days later, people have figured out figured how to make it download those movies direct to your own PC directly through USB.

I don't know how much these things cost to CVS, but they can't be happy about this obvious development. (No word yet on whether CVS will be taking legal action based on vague "the government should stop anyone from poking holes in our poorly-thought-out business plan" laws...)

PhotoMuse 

"Power House Mechanic" (1920) by Lewis Hine

The New York Times story on PhotoMuse.org, a collaboration between the George Eastman House and International Center of Photography Alliance. (The site is currently overwhelmed, but they've got a sampler up at the moment.) From the article:

While there are now dozens of growing digital databases of photography on the Web, many - like Corbis and Getty Images - are commercial sites that do not allow the public unfettered access to their collections. The Photomuse site will join others, like the digital collections of the Library of Congress, the Metropolitan Museum of Art and the National Museum of Photography, Film and Television in Bradford, England, that are beginning to create what amounts to a huge, free, virtual photography museum on the Web.

...

Anthony Bannon, the director of Eastman House, said one of the biggest hurdles encountered by the project - after overcoming the initial cultural resistance of both institutions to share their collections and expertise - has been converting the images of both Eastman and the center. onto a single computer system. (So far, he said, Eastman has digitized almost 140,000 of its photos and center about 30,000.)

"It's not just like pushing a button and the images slide over," he said, adding that copyright issues with many photographers could also keep many images off the Web for years. "Some are generous and understand the positive result by having the images seen on our Web site but others are worried about losing opportunities for revenue," Mr. Bannon said. "All of us are still learning about how the Web can be used, I think."

It's nice to see traditionally conservative institutions opening up to the idea that on the Web, sharing your art, knowledge or expertise freely often pays you back far better than hording it.

The first rule of Harry Potter is — you do not talk about Harry Potter 

Apparently a Vancouver, B.C. grocery store accidentally sold 14 copies of the new Harry Potter book (due to be released Saturday at midnight), leading a judge to issue an injunction against anyone talking about it. Who knew that Canada had a no spoilers law?

(by way of Copyfight)

Grokster glass half full? 

I'm feeling very "glass is half full" about today's Supreme Court decision in MGM v. Grokster, which essentially says a technology company can be guilty of contributory copyright infringement if it induces others to violate copyright (e.g. through advertising). Sure it leaves open lots of questions hanging, which no doubt will be clarified after much more blood on the field. On the whole I'm still optimistic for where this might lead us in the long run:

1. Peer-to-peer sharing of copyrighted files will continue unabated, that was a given regardless of the decision. I think this is a good thing not because I've some anarchist itch than needs scratching, but because the content cartel have been abusing their government-granted limited monopoly for decades, and they've become damaging to society. Congress is a part of the problem, so there's no remedy there. Monopolies don't change willingly, and the only two forces I see moving the cartel to serve their customers instead of abuse them are files-sharing on the one hand and empowered artists eliminating the middleman on the other. My big hope is that somehow these two stakeholders figure out the right way to join forces.
2. The decision makes it harder for companies like Grokster to profit from copyright violations with a wink and a nod. That makes it less likely that we trade one set of market-masters and gatekeepers for another, and it also makes it a little easier for the cartel to survive as they (hopefully) reform into good corporate citizens. The message I'd take from this decision if I were MGM would be "OK, we'll still have our clock cleaned if we don't offer our customers something better than free, distributed, somewhat undercover, all-volunteer-provided infrastructure, but at least we don't have to compete with funded commercial versions as well." Or at least they'll have a reprieve until legal alternatives like voluntary collective licensing or Creative Commons start to take their market-share.
3. It'll make P2P technologies even more decentralized and distributed. We'd never have seen the P2P technology explosion if the RIAA had embraced the posting of MP3s on the Web back in the mid-90s. Like a weakened virus that trains the immune system to later fight off a full-strength disease, we're building the technology and mindset that will one day help protect us against far worse threats than the Disney Secret Police. Which leads my to my last hope...
4. Maybe this will encourage businesses and technologists working with P2P to raise public awareness of the P2P applications that don't involve copyright violations, like load-balancing, wireless ad-hoc networking, store-and-forward networks for the third world, and censorship-resistant communication.

Owning David 

The cover story of this month's Communications of the ACM is a mostly technical paper called Protecting 3D Graphics Content. In it, Stanford graduate student David Koller and professor Mark Levoy describe a method for copy-protecting 3D graphical models such as the ones generated in the Stanford Digital Michelangelo Project. Most copy-restriction schemes are snake oil — they rely on a mythological "trusted client" that prevents the user from accessing the raw bits being displayed on his own monitor by his own CPU. The Stanford team has gotten around this problem for 3D models by keeping the high-resolution model on their own server and only sending 2D images to the client. The client uses a much lower resolution 3D model for the interface to choose new camera angles. The method sounds sound, though the authors admit it might still be possible to reconstruct the 3D model using machine-vision techniques on their 2D images.

Scholarly researchers are often faced with difficult ethical trade-offs, especially when developing new technology. The authors state their own particular quandary in the second paragraph:

These statues represent the artistic patrimony of Italy's cultural institutions, and our contract with the Italian authorities permits distribution of the 3D models only to established scholars for noncommercial use. Though everyone involved would like the models to be available for any constructive purpose, the digital 3D model of the David would quickly be pirated if it were distributed without protection: simulated marble replicas would be manufactured outside the provisions of the parties authorizing creation of the model.

Michelangelo's David (image courtesy of and © Mary Ann Sullivan)

In other words, as academics Koller and Levoy understand how the free sharing of history, art and scholarly data contributes to society as a whole, but they also recognize that without some assurance that this data is not shared freely, the authorities who control access to the original works won't allow any sharing. The museum would also like to see the data shared with fellow researchers, but don't want to see it used to make replicas without their approval and license fees. Unfortunately, I think Koller, Levoy and the museum all fall the wrong way on this question.

One of the things that jars me in reading this piece is the liberal sprinkling of the words "theft" and "piracy," as in "For the digital representations of valuable 3D objects (such as cultural heritage artifacts), it is not sufficient to detect piracy after the fact; piracy must be prevented." Here the authors are making a fundamentally false assumption. I cannot speak to Italian law, but under U.S. law (and thus for any viewer of the data in the U.S.) exact models of works that are in the public domain are not themselves copyrightable. To quote the 1999 decision by the US District Court SDNY in Bridgeman Art Library, LTD. v. Corel Corp.:

There is little doubt that many photographs, probably the overwhelming majority, reflect at least the modest amount of originality required for copyright protection. "Elements of originality . . . may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved." [n39] But "slavish copying," although doubtless requiring technical skill and effort, does not qualify. [n40] As the Supreme Court indicated in Feist, "sweat of the brow" alone is not the "creative spark" which is the sine qua non of originality. [n41] It therefore is not entirely surprising that an attorney for the Museum of Modern Art, an entity with interests comparable to plaintiff's and its clients, not long ago presented a paper acknowledging that a photograph of a two-dimensional public domain work of art "might not have enough originality to be eligible for its own copyright." [n42]

What Koller and Levoy are protecting are not the museum's property — the 3D models of David belong to the public at large. What they are protecting is a business model, one that is based on preventing the legitimate and legal sharing of information. Their opponents in this battle are neither thieves nor pirates, they are merely potential competitors for the museum's gift shop, or customers the museum fears losing.

It is understandable that museums want to protect an income stream they've come to rely on to accomplish their mission. It is also understandable that Koller and Levoy are willing to help museums maintain their gate-keeper status in exchange for at least limited access to the treasures they hold. After all, isn't partial access to the World's greatest artwork in digital form better than no access at all?

In this case I fear the short-term gain will be outweighed by long-term loss. Information technology and policy is in a state of incredibly rapid flux, with new systems constantly building on top of what came before like a giant coral reef. This project takes us another step down the path of information gate-keepers and toll-road bandits, a path that rewards the hoarding of information and the blockade of communication rather than the promotion of the useful arts and sciences. It also reinforces the message that we are all cultural sharecroppers, that education and the arts are reserved for those with the money to pay for them, and that the public domain is just a myth that thieves tell themselves to assuage a guilty conscience. This is the exact opposite of what our universities and museums represent, and it undermines the project participants' legitimate desire to share these treasures with the world. We can do better, and we should.

Update 6/21/05: A longer version of the CACM article (published in SIGGRAPH 2004) can be found here, and includes a video demonstration (Quicktime MPEG-4, 20MB).

Star Wars: Revelations 

I know it's been out for a couple months, but I finally watched Star Wars: Revelations, the all-volunteer fan film set in the Star Wars universe. Man, this ain't your father's fan flick!

Just as long as you're not good enough to compete... 

The Union-Tribune reports that Wal-Mart and other digital-photo printer services are refusing to print pictures that, in their opinion, look "too good" and thus might be copyrighted by a professional photographer. This is likely in response to guidelines drawn up by the Photo Marketing Association International, which among other things instruct "If there is not a clear lawful basis to make the copy, the safer course is to decline to copy." While not legally binding, following the guidelines are a good hedge against being nailed for copyright infringement by the PMAI, as Kmart Corp. learned when it was sued in 1999.

I suspect these guidelines came out of a genuine desire to "protect our members' legal rights," but I can't help but notice how well suited they are for stifling legitimate competition. If you're a crappy photographer then no problem, go ahead and use the online photo-processing site. But if you're good at using Photoshop and your high-end consumer digital camera then you're going to get harassed. Next time leave it to a professional, or better yet become one yourself and join the PMAI. I'm sure flashing a membership card would be more than enough to convince the clerk at Wal-Mart that you're legit.

(Link via Copyfight)

Update: I should point out it's not just Wal-Mart that's being hard-nosed here. On various blogs people are talking about trouble with a variety of other services, including Kinkos and Kodak's Ofoto.

What happens when content providers make "legal" hard to do... 

I never bothered seeing Star Wars Episode II, but I figured I should do it before going to see Episode III tonight. Unfortunately this was also the plan of about a thousand other people, so all the video rental places in the area were out of anything Star Wars related. According to the woman at one local store, they get a bunch of DVDs in when a movie first comes out, then over time they start selling off their extra copies until they only have a few left. When a sequel comes along they're invariably swamped, but there's no way for them to have more disks on-hand just for that period.

Of course, an obvious solution would be to license video stores to burn DVDs on-site whenever they have increased demand. The store could keep track of the number they rent out and kick back some of that revenue to the movie companies. I'd get to watch my movie, the rental place would get my money and the movie company would get paid. It's not like allowing on-site burning of DVDs would open the door to illegal copying any wider than it already is. But the movie companies haven't gone for it — I have to assume it's more important to them to maintain the fiction that they sell little plastics disks rather than content than it is to provide better service to potential customers.

The trouble is they're driving those customers to other alternatives. In this case, after checking four different video places we eventually gave up and all watched a copy a friend of mine had downloaded via the P2P networks. In spite of my strong political opinions about fair use and abuse of copyright, I have no problem with paying for my entertainment and I prefer that over going to the P2P networks. It's unfortunate that the content cartel can't get its act together enough to provide a reasonable alternative.

Court shoots down Broadcast Flag 

As is being reported all over