DocBug

Men at Work vs. Kookaburra: How many other copyright land mines are out there? 

A couple years ago, the Australian quiz show "Spicks & Specs" asked its panelists to name the Australian folksong that could be heard in a popular hit single that was first released in 1979. The answer: "Kookaburra Sits in the Old Gum Tree," in the flute riff of the Grammy-winning band Men At Work's hit single, "Down Under."

Despite what some breathless news reports are claiming, damages will likely be limited — as CNN reports, the Larrikin is only claiming a percentage of revenues on Australian sales from the past six years, and the judge has already noted that he has not found that the flute riff is "a substantial part of Down Under or that it is the 'hook' of that song." Still, it's gotten me thinking about how many other copyright land mines might be out there, just waiting for someone (or some thing) to uncover the similarity between some riff and some other previous melody.

Musicians are always borrowing riffs and melodies from previous songs, from little riffs jazz musicians throw in as shout out to other songs to wholesale note-for-note copying. A few well-known examples include The Beach Boys hit "Surfin' USA," a note-for-note copy of Chuck Berry's "Sweet Little Sixteen." (Berry was granted writing credits to the former after a successful lawsuit.) The tune to the 1953 song Istanbul (Not Constantinople) is extremely similar to Irving Berlin's Puttin' On The Ritz. And the chorus to the 1923 hit "Yes! We Have No Bananas" is almost entirely made up of riffs from other songs.

That's just a few examples that have come to people's attention, but how many are out there that borrow from less obvious sources? How many are just waiting for a game show (or a new search engine) to copyright holders to a potential opportunity for some quick royalties? In the past few years it has become possible to search a music database for a recording by playing a snippit of a song or in some cases just by humming a melody. What is not yet possible is to automatically process an audio stream, tease out individual riffs and melody lines, and then find other earlier pieces that contain similar riffs and melody lines. But that kind of research is ongoing, and I have no doubt that it will be solved at some point. When that day comes, we will in essence be able to map out the genome of every music recording ever made, and from that we can lay bare the lineage of every song in history.

When that happens, how many other Kookaburras will we find?

Study shows patents actually deter the "progress of science and useful arts" 

The right to enforce patents is one of the powers specifically spelled out in the U.S. Constitution, which states that Congress shall have the power

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

A new study published in The Columbia Science and Technology Law Review suggests that, in fact, patents deter innovation. The authors (one of whom, coincidentally, was my old roommate in grad school) created a patent simulation game that allows players to "invent" new products by arranging a sequence of widgets. These products can be sold to consumers, and the value of a sequence in the marketplace is related to its subsequence, so it makes sense for players to try to build off of particularly valuable sub-sequences.

Once a player has invented a previously undiscovered sequence, he may choose to open source the discovery or to pay a fee and patent it. Open sourcing a sequence simply prevents anyone from patenting any sequence based on it, while patenting a sequence allows the patent holder to license the sequence to other players and to sue anyone who infringes on the patent. If a patent holder decides to enforce his patent against an infringer, both players decide how many lawyers they wish to hire (again for a fee), and the case is decided by (virtual) die roll. Patent holders may also sell a patent outright to another player.

The researchers ran subjects in either a pure-patent version of the game that did not allow open source, a mixed version that allowed both patent and open source options, and a pure-commons version where patents were not allowed at all. Players were recruited from the incoming law school class, and were told that the player with the most money at the end of a trial would be given a prize. Their results show that players in the pure commons version produced more innovation (number of inventions), more productivity (number of inventions made) and higher social utility (amount of money each player ended with) than either of the other two variations. (The amount of innovations was not statistically significant, the other two metrics were very significant). Interestingly enough, they found no significant difference between the pure patent system and the mixed system for any of the three metrics.

It's easy to nit-pick these kinds of simulation-based experiments, both in terms of how parameters are set and more generally whether the simulation captures enough of the real-world dynamics to be useful. One nit I have is that (near as I can tell) the market value of a product is the same regardless of how many competitors are selling the same product, which would eliminate one of the primary purposes of gaining patent protection. I also wonder whether the stated goal of making more money than your fellow players discouraged strategies that help everyone equally (a rising tide raising all ships), and in particular whether it might have discouraged use of the "open source" option in the mixed variation.

That said, it's an interesting study, and in their discussion the authors cite many empirical and theoretical studies in the past few decades that have also brought into question whether patents actually promote innovation in the real world. The authors also suggest the possibility of more studies using their PatentSim game, and possibly even creating an online massive multiplayer version, which would presumably allow players to develop their strategy and experience with the game over longer periods of time.

(Via RiteReadWeb)

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 the net, the U.S. Court of Appeals just ruled that the FCC doesn't have the authority to force all manufacturers of video hardware (televisions, computers, video recorders, etc.) to disables the ability to make copies of shows where copying doesn't fit the broadcaster's business model.

As Declan McCullagh at C|net points out in more diplomatic terms, now the MPAA will actually have to lobby congress to extend their government-enforced monopoly rather than force it through the less-accountable FCC.

Family Movie Act as anti-censorship law 

Ed Felton argues that the new Family Movie Act (passed by Congress on Tuesday and likely to be signed by the President) actually protects free speech rather than, as some might claim, protects censorship. (The act, for those who haven't heard, makes it legal to edit out limited portions of a non-pirated home-viewed movie at the direction of a member of that household — so it's OK to make a DVD player that optionally skips all the sex scenes, scenes with Jar-Jar Binx, or for that matter the sex scenes with Jar-Jar Binx.)

I agree with Ed here — empowering individuals to choose what they want to watch or not watch doesn't promote censorship any more than movie reviews or the TV remote control do. The only case that would trouble me is if there were a systemic bundling of edits — for example if the only anti-violence filter for a movie also filtered out all the sex scenes. But given that such bundling already happens in the editing room of the movie itself and given that there will likely be competition in this arena (baring broad patents) I don't see that scenario as likely.

Orphan works update 

Quick update on the orphan works issue: The Copyright Office has posted initial comments, and reply-comments deadline are due May 9th.

The crux of the problem is the fact that you needn't register a work with the Copyright office, or even put the little "(C) Copyright 2005" mark on it for it to be copyrighted anymore, nor do you need to renew. A doodle on a napkin is just as copyrighted as a composition registered with the Copyright office (though you can't collect damages until you actually register the work). So nowadays copyright isn't even fire-and-forget — the gun can be still sitting on the mantle. Until that's changed I'm not sure of a good way out of this morass.

Personally I'd like the current copyright rights only be enforceable for works that are registered with the Copyright Office, with the onus of the copyright holder to update his or her contact information in a timely fashion, and every so often to take active steps to renew the copyright. These shouldn't be onerous steps -- a simple form with little or no processing fee should be sufficient. If a work is not registered or renewed, or if it's deemed impossible to find the copyright owner, then the either the work should fall into the public domain or possibly become protected under a much more limited set of copyright restrictions such as those provided under the Creative Commons Attribution License.

Nothing ever dies on the Net 

In case you missed the OSX homage that Google posted and then quickly removed after Apple threatened lawsuit, a French site has posted either a cached copy or clone of it (I'm not sure which), as well as a Doc-at-the-bottom version. Look quick, this time it's Google that's sending the cease and desist. (Link by way of CoCo.)

OurMedia.org 

I've often heard (and sometimes said) that there are three possible outcomes to the copyright wars:

1. The Content Cartel manages to stuff the djinni back in the bottle and reinstate themselves as gatekeepers. The Internet dream gets twisted back into pay-per-view with email.
2. A citizen revolt against congress's constant erosion of fair use, free speech and free market to keep the Cartel's lobbyists fat and happy. We regain the rights to our own culture, but only after much blood has been spilled on the field and in the courts.
3. The Content Cartel keeps their pocket congress-critters and enact even more draconian copyright laws, only to discover that the more restricted a medium is the less it can compete with the new liberated content model.

OurMedia.org (just released in Alpha) is another step forward towards making the third scenario a reality. It's a new web service that's offering to host any sort of creative media (including audio & video). For free. Forever. You own your own copyright, you choose your own license.

This is similar to what The Internet Archive does, and in fact the IA is providing free storage and bandwidth for OurMedia's media files. OurMedia is focusing much more on the general pro/am community though, and includes a free blog & Wiki (all based on Drupal), community-based rating and comment systems and plans for many more social-network support plans.

(Thanks to Seth Finkelstein at Infothought for the link.)

Cast of millions 

There's a nice quote by Jeff Tweedy (leader of the band Wilco) in Lessig's column in last month's Wired:

"Music," he explained, "is different" from other intellectual property. Not Karl Marx different - this isn't latent communism. But neither is it just "a piece of plastic or a loaf of bread." The artist controls just part of the music-making process; the audience adds the rest. Fans' imagination makes it real. Their participation makes it live. "We are just troubadours," Tweedy told me. "The audience is our collaborator. We should be encouraging their collaboration, not treating them like thieves."

It's similar to something I've been mulling over for a while now about art in general. Art isn't created out of nothing. It's inspired by culture, augmented by technology, given its own voice by the audience, advertised by word of mouth and filtered by fans. The artist steers these forces, but they're created by a cast of millions.

Why do we credit the violinist and the composer of a piece but not the master luthier who made the violin? Did his artistry contribute any less to the beauty of the music?

Signing over of Copyright 

Lawrence Lessig has just sworn off publishing "in any academic journal that does not permit [him] the freedoms of at least a Creative Commons Attribution-Noncommercial license."

Accademic journals are funny economic actors, because it's very clear they provide publication, archival and authentication services to an academic community, but not the content. The community that eventually reads the journal also provides the real value in a journal: its authors, reviewers and editors, usually for free or a pittance. While there's no denying that publication and archival services cost money and should be compensated, high subscription prices or other access restrictions are a disservice to the entire author-reader community. As the main provider of value in the process this community has considerable power. It's more pronounced in accademia, but I see a lot of similarity to the growing pains the record industry is feeling, with consumers and artists both realizing the value added by the middleman isn't as valuable as they thought. I suspect these fights in academia contain some good lessons for how the powershifts will other content areas might play out — assuming financial interests in the old way things were done don't manage to put the djinni back in the bottle.

Side note: the two academic societies in my field, IEEE and ACM, both require that an author sign over his or her copyright to them before publication. Both policies have become more open in the past decade, in particular by granting permission for articles to be published on the author's own website, but Lessig's oath would still rule out either society's journals because they don't grant permission to others. ACM lays out its rationale for its copyright program, and concludes: ACM firmly believes that it achieves a balance among divergent goals; that its use of copyright within its publishing program in fact serves the public good by enabling the creation and widespread dissemination of quality works in various formats and media. This may be the case right now, but with media technology changing so quickly I suspect (and hope) author-reader pressure will continue to push these policies towards more openness.

Wizard People, Dear Readers 

I finally watched/listened to Wizard People, Dear Readers last night, Brad Neely's unauthorized alternative narration to the Harry Potter and the Sorcerer's Stone movie. It's synched to the movie — turn the sound on your DVD low (so you still hear the music) and hit play on both at the same time. The style is less MST3K and more like hearing a narration of the movie by an earnest but clueless poet-turned-subtitle-writer. It's also surprisingly funny.

The film/soundtrack has been out for almost a year, but according to Stay Free! Daily Warner Brothers has just recently started strong-arming theaters to cancel screenings, threatening to cut off all ties with venues that show it. Presumably they're threatening boycott instead of copyright suit because, as a parody, WPDR is probably but not certainly legal — and they'd rather keep that uncertainty if possible. Why they're actively trying to stifle something that makes them money though is a little of a mystery — after all, you can't watch WPDR without purchasing the film rights for Harry Potter (in my case, a whopping $14.99 for the DVD just to watch it with the sound turned off!). I've no great insight into the minds of Warner Brothers, but I can imagine three possible reasons they want to crush this movement, ranked in order of likelihood:

1. Studios make their box-office money on new releases, not so much second-run. The more fans make their own stuff based on old works the less oxygen (movie-goer attention, theater time, press, etc.) will go to their new releases. This is just a way to kill off another potential competing genre while it's still in its infancy.
2. As one of the winners in the "old media" model, WB executives fear change. They figure it's better to shut down anything new than to see if it might actually make them more money in the long run.
3. Maybe J.K. Rowling or some other important person made a fuss?

Peerflix, right of resale and the one-copy-per-song town. 

The Menlo Park startup Peerflix has been getting some ink the past couple days. They're like NetFlix, only instead of renting a DVD for an indefinite time you trade DVDs with other members. Peerflix has no inventory, they provide the matchmaking service, mailing labels and points system that works like barter cash, all for a 99-cent per trade fee. You own the DVD you trade for, free and clear — and legal.

It's models like this that bring home for me again why it was so important for the music distribution cartel to crush MP3.com's Beam-It service and, more directly, why they're sure to fight any possible emergence of a used digital-music market.

The Berkeman Center's white paper on iTunes has a good discussion of the Digital First Sale doctrine (starting around page 51), and concludes people probably don't have the right to resell used digital media (just the bits) like they do tangible things like books or CDs. But imagine for a moment that we did, and that things like the DMCA, draconian EULAs, and the RIAA shock troops didn't get in the way. Now imagine a frictionless Peerflix, (or better yet a Peertunes) and that it's hooked into your music player, so when you click on a song it automatically sells the song to you (locking anyone else out from playing it), plays it, and three minutes later it gets sold back to the digital lending library again. A whole town could share a single music collection; the less-popular music could be shared by a whole country. And it'd all be legal.

I can already hear all the usual clamoring from the cartel about how this sort of thing would bring down the music industry, destroy artist incentives, yadda yadda. The funny thing is, I don't think it would — those are the exact same things that copyright owners whined about when faced with the creation of the library, used bookstores and the VCR.

Brief clarification on Orphan Works issue 

I may have given the wrong impression with my side comment about the DMCA in my original post on orphan works — it's important to understand that the Orphan Works issue is only tangentially related to the whole issue of fair use, agressive copyright enforcement and corporate ownership of our culture. Orphan Works is specifically about works where you would happily pay the copyright owner for a license, and the owner would gladly give permission, if only you could discover who the owner was.

For me, the reason for separating this specific problem from the more general issue of indefinite copyright extension, erosion of fair use, etc. is tactical — this is one area that could create a whole lot of good for society in terms of online libraries and the like without entering the rat's nest of whether fair use is "stealing from the mouths of artists" and the like. I almost said "without going head-to-head with the Copyright Cartel's moneyed interests," but that's not quite accurate. The big media companies still have a huge interest in limiting media that's available to consumers to their own new releases, and it'll be interesting to see what kind of position they take on the orphan works issue. The nice thing about limiting this particular debate to orphan works is it steals the Cartel's biggest moral shield, namely artist's compensation, since in fact many artists would gain from more frictionless licensing, and the few that would lose would be those who never cared enough to renew their copyrights anyway.

"Sea of children lost in the supermarket" works 

I actually got a glimpse of the orphan works problem from the other side just a few days ago, when I was contacted by the MIT OpenCourseWare program and asked if I would be willing to grant permission for them to use some of my material in a course they were posting online. In this case, the material was a single PowerPoint slide from a single lecture in the course. I hadn't made the slide, but it quoted a single sentence from one of my papers and included a photo of me a friend had taken while I was still in grad school. I happily printed out the two-page license giving them the right to use the material, put it in a stamped envelope and mailed it back to them. The license file was slightly over ten times as long as the material I was licensing.

I suppose I can't call this an orphan-works problem per say, since the slide had my name on it and it's pretty easy to track me down online — perhaps this was just a child-lost-in-the-supermarket problem. Or in MIT's case, a whole sea of children lost in the supermarket, each needing individual attention. (As Downward Battle points out, this is the same problem that has kept works like Eyes on the Prize out of the public eye for the past 10 years.) My heart goes out for two (and soon three) intellectual-property coordinators who are trying to dot all the i's that make up even a single course.

And yet, though I didn't think of it until after I sent back the forms, even I can't be quite sure that I owned the rights to that material. It was a friend who took my photo, and we certainly didn't talk about copyright issues at the time. More significantly, I can't recall off the top of my head which of my papers the slide quoted from, and whether that was one of the journals or conferences that required me to sign over total ownership of the copyright to them before they'd publish. Should I have consulted my lawyer before giving MIT permission to talk about my work? I don't have time for that kind of shenanigans, and besides, I'm a researcher — the whole point of my writing papers is so that what I've learned can be passed on to others.

Unlocking the orphans 

EFF and Public Knowledge have just set up Orphan Works, an organization dedicated to finding a way out of our current mess where works may have been out of copyright for years, but there's no way to know because nobody (including the Copyright Office) knows who to ask:

What are orphan works? Orphan works are — broadly speaking — any copyrighted works where the rights-holder is hard to find. Because the cost of finding the owner is so high, creators can't build on orphan works, even when they'd be willing to pay to use them. In many cases the works were abandoned because they no longer produced any income. In most cases, rights holders, once found, are delighted to have their work used.

The Copyright office is asking for public comment on the orphan works problem until March 25th (you can fill out the form at orphanworks.org). Even if you're not an artist or filmmaker or the like, this issue probably affects you more than you'd at first think. Here's the comment I just sent in:

My story is simple, but I expect it's a common one. I've been learning to play piano and I love old music. My uncle gave me a photocopy of sheet music for a 1934 parlor piece that my grandfather used to sing, I found copy of Scott Joplin's original 1902 score for The Entertainer, and a friend who collects old music gave me a photocopy of her antique sheet music to a 19th-century music-hall song. I've scanned them all on my home scanner and I'd like to put them on the Web for others to download, but I've no way of knowing if these are actually out of copyright. Plus, copyright holders are so aggressive these days that I'm afraid even if these pieces are in the public domain someone might convince my ISP to shut down my account under the DMCA, and if that happened there'd be no good way for me to prove I was in the right. So instead, I just gave up and have kept these scans to myself. It's just not worth the risk to share with others.

Update: Larry Lessig has some pointers on writing comments (e.g. be nice, these guys are overworked) and stories people have submitted over at eldred.cc.

New Stay Free! Blog 

(via CopyFight) There's a new blog from the folks who brought you the Illegal Art exhibit and Stay Free! magazine — this one's going on my short-list of RSS feeds to read...

Copyright as bludgeon against critics... again. 

The Tulsa World newspaper is threatening BatesLine, a blog that's been critical of their activities, with copyright violation for quoting their editorials and "unauthorized linking." (As BatesLine points out, one of the mainstays of Fair Use is the ability to make comment and criticism, and linking isn't a copyright violation because it's not copying.)

Why don't they just come over and threaten to torch the place like honest extortionists would?

(By way of Political Animal)

Art immitates life... 

Yesterday's Close To Home cartoon pretty well nails the current state of copyright...

Wex blogs Copyfight 

My friend Wex has just joined the authors-list at Copyfight, where he'll continue his insightful analysis of the morass that is IP in this digital age. Well worth putting on your short-list of RSS feeds if you're interested in IP stuff ('course, if that describes you you probably have Copyfight in your RSS-reader already). 'Gratz Wex!

U2 v. Negativeland special-edition iPod 

(by way of Dr. Wex) For sale on eBay: unauthorized special-edition iPod commemorating the U2 vs. Negativeland legal battles, pre-loaded with 7 Negativeland albums. Price is already $450 with 5 days left to go (yow), proceeds to benefit Downhill Battle.

Rolex Spam Anti-Massacree Movement 

via Adam Engst at tidbits:

Kids, we don't like your kind, and we're going to send your cease-and-desist letter off to the Web Archive. And friends, somewhere in the Internet, enshrined in some database, is a study in black and white of that cease-and-desist letter.

Good explanation for Apple v. Real 

My friend Rawhide just pointed me to an answer to my head-scratchings about Apple v. Real and how it fits with their give-away-the-blades and sell-the-razors strategy. From EFF's Deeplinks:

So you're Apple, and you make all your money selling iPods. You invest in the Music Store to make the iPod even more attractive, never intending to make much margin on the 99 cent downloads. But here's the problem &mdash you really don't want every other maker of portable digital music players to free-ride on your Music Store investment. After all, the Music Store is supposed to make the iPod more attractive than the competition.

Here's where FairPlay comes in. It's a great barrier to entry that keeps the iPod as the exclusive device for the Music Store. Competitors who dare to reverse engineer the protocols or otherwise support interoperability find themselves staring down the barrel of the DMCA.

More JibJab, and thinking about deregulation 

Update on JibJab: Fred von Lohmann over at EFF's Deep Links reports that Guthrie lifted the melody for "This Land is Your Land" from the song "When the World's on Fire," recorded by the Carter Family ten years prior. Eugene Volokh (who has had a series of interesting comments on this case) notes that if correct this significantly strengthen's JibJab's fair-use argument, but I think the more interesting take-home message is that This Land is My Land was (and perhaps still is) probably a copyright violation itself. Not that this should surprise anyone — copyright violation is practically a part of the definition of folk music. No doubt the Carter Family didn't mind Guthrie's song any more than Woodie would have minded JibJab, but imagine how much poorer we all would be if a rights-holder like The Richmond Organization had kept This Land is My Land from being recorded?

As Lessig points out, we citizens have the right to change the law. Copyright is a government regulation on the marketplace of ideas, one that restricts some speech in the hope that it will encourage others to produce more. We're all fully aware that the Net has radically shifted how the marketplace of ideas now works and will continue to work in the future. Isn't it about time we reexamined whether this government regulation still makes sense?

This land is their land 

Nice post by Dan Gillmor on what Woodie Guthrie would have thought about The Richmond Organization threatening to sue the JibJab folks for infringing on "their" copyright of This Land is My Land...

INDUCE made easy 

I've been meaning to blog about the Inducing Infringement of Copyrights Act (S.2560, previously known as INDUCE), but between Ernie Miller's great blog posts about it and now The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act I can just be lazy and point to their stuff. Summary of the summary: the usual suspects who brought us the DMCA are trying to give the Content Cartel yet another bludgeon they can use to shut down anyone that threatens their monopoly, and if they're lucky finally do away with the Sony v. Betamax decision that kept them from declaring the VCR illegal.

BTW, here's the current list of co-sponsors: Orrin Hatch [UT] (primary sponsor), Lamar Alexander [TN], Barbara Boxer [CA], Hillary Rodham Clinton [NY], Tom Daschle [SD], Bill Frist [TN], Lindsey Graham [SC], Patrick Leahy [VT], Paul Sarbanes [MD], Debbie Stabenow [MI].

Another cross-industry DRM effort 

From PRNewswire:

LOS ANGELES, July 14 (PRNewswire) -- IBM, Intel Corporation, Microsoft, Panasonic (Matsushita Electric), Sony, Toshiba, The Walt Disney Company, and Warner Bros. Studios today announced the formation of Advanced Access Content System License Administrator (AACS LA), a cross-industry effort that develops, promotes and licenses technology designed to enhance digital entertainment experiences. This technology will facilitate the ability to enjoy exciting, new, flexible entertainment experiences for consumers in stand-alone, networked home and portable devices.

By "enhance digital entertainment experiences," of course, they mean "have enough DRM that we're willing to release our content at all, preferably without alienating all our legitimate customers." Not clear how they intend to achieve this DRM equivalent of the Philosopher's Stone, but they've got a lot of heavy-hitters involved...

More details are promised in coming days at http://www.aacsla.com/.

Barry Ritholtz has a nice analysis of the spin the Music Cartel is putting on the recent copy-protected Velvet Revolver CD that just came out. An excerpt (from Barry's email, not blog post) that especially caught my eye:

Here's the oddest aspect of the DRM: iPod-owning Velvet Revolver fans cannot transfer the music from their CDs to their pods unless they violate DMCA and hack their CDs. That's right -- if a consumer wants to use their legally purchased CDs on their legal MP3 player, they must become felons. The same is true for those iPod onwers who buy the music on iTunes music store -- it wont work with their pods.

Something Positive 

Three weeks ago R.K. Milholland got fed up with people criticizing the spelling in his online comic Something Positive so he posted a dare: donate his current day-job salary ($22,000) to his pay-pal account and he'll quit and work full-time on the comic. The donations flooded in, and yesterday he gave his 2-weeks notice.

Just one more example of how "selling" content isn't the only economic model out there, or necessarily even the best. All sorts of things become possible when what you produce has practically zero marginal cost.

Berkman Center iTunes Case Study 

Ars Technica has a nice review of the iTunes Case Study being done by Harvard Law's Berkman Center for Internet & Society. From the study's overview:

By focusing on the specific iTunes example, the Case Study offers a concrete view of the way law, technology, and business model interact in the post-Napster world.  The Case Study has focused on four important regulatory issues:

• Interaction between Copyright and Contract Law
• Digital Rights Management
• Digital First Sale Doctrine
• Fair Use Doctrine

The problem with DRM on news 

Mary Hodder over at Napsterization has a nice essay on how foolish it is for news media to hide their content behind Digital Rights Management (props to Dan Gillmor for the link). Her two main points: The most important reasons news media companies and creators should not implement DRM is because of fair use considerations of the content itself, as well as the maintenance of their positions as reporters of news, and authorities of information.

Her point on authority is an issue that can be expressed purely in business terms: don't release your content and eventually you become irrelevant (and thus out of business). Her fair use argument is equally important, but harder to explain to all the large corporations that have bought up news organizations in recent years, but who didn't grow up in the industry. Journalism is a social contract wherein the press receive special access to political leaders, special legal status, and strong constitutional protection, and in return provide the useful, trustworthy information our democracy needs to survive. Fair use may not improve shareholder value, any more than anti-bribery laws improve a congressman's annual income, but it's necessary for the press to continue their vital role as a public trust.

Study shows P2P not hurting record sales 

A HBS and UNC Chapel Hill study comparing file-sharing downloads to music sales data supports what several people outside of the recording industry have been saying for a while: file sharing isn't what's hurting music sales (thanks to Cory at BoingBoing for the pointer):

Downloads have an effect on sales which is statistically indistinguishable from zero, despite rather precise estimates. Moreover, these estimates are of moderate economic significance and are inconsistent with claims that file sharing is the primary reason for the recent decline in music sales.

As Dan Gillmor points out, the more likely reason music sales are slagging is lousy music and the cartelization of record distribution and radio airplay.

Hollywood seeking truenames 

Hollywood is pushing a bill in California (California Assembly Bill 2735 and California Senate Bill 1506) that would require anyone but a copyright-holder who knowingly transmits commercial audio or video over the Net to attach their true name and address. From the bill:

This bill would provide that it is a crime, punishable by a fine not exceeding $2,500, imprisonment in a county jail for a period not exceeding one year, or by both that fine and imprisonment for a person who is not the copyright owner to knowingly electronically disseminate a commercial recording or audiovisual work without disclosing his or her true name and address, and the title of the recording or audiovisual work.

...

This bill would also provide that a court may order the forfeiture and destruction of articles upon which sounds or images can be stored, electronic files, and electronic and other devices in connection with a violation of these provisions.

There are a few exceptions for distributing to one's immediate family and over a household network, but it doesn't exempt fair use or even allow a copyright holder to grant permission for anonymous distribution. As I read it, it includes iTunes-sharing at work and even over-the-network backup.

EFF is seeing their "evil pirates" card and raising them one "protect the children" card:

"These California anti-anonymity bills would force everyone — including children — to put their real names and addresses on all the files they trade, regardless of whether the files actually infringe copyrights," said EFF Legal Director Cindy Cohn. "Because the bills require Internet users to post personally identifying information, they fly directly in the face of policy goals and laws that prevent identity theft and spam and protect children and domestic violence victims."

Mr. Fantastic, are you out there?

NYTimes threatening author of parody 

The New York Times is rattling their legal sabers at a blogger who posted a parody corrections page, causing his ISP to force him to remove the post under threat of the DMCA. Looks like the Times is less upset about the parody and more about the fact that its author, Robert Cox of The National Debate blog, copied their HTML verbatim including live links to the nytimes.com website and banner ads. Worse yet, he included (horrors!) instructions on how to create your own parody page. I won't reprint the instructions here for fear of legal repercussions, but it involves use of the "view source" menu option and a text editor. Even so, as Kevin Drum at Calpundit posted, "you'd think the publisher of the Pentagon Papers would show a little more respect for free speech and a little more tolerance for criticism."

I'd add that you'd think after the Fox News v. Franken debacle the Times would realize trying to suppress a parody online is like smashing a blob of Mercury. As is becoming the standard for rerouting around censorship on the Net, Cox posted the following on his site:

While I want to "fight the good fight", discretion is still the better part of valor and so I feel compelled to take down my parody of a New York Times Columnist Correction page. I have not, however, given up.

Today, I am announcing the creation of THE NEW YORK TIMES COLUMNIST CORRECTION POLICY PROJECT. I am looking for volunteers who are willing to mirror my fake Times web page. The original page will serve as a directory to the mirrored sites. I will list the home page and the mirror page of all project participants. For those who get a "cease and desist" letter from The Times I would ask you to avoid a conflict with The Times and remove the page. I will then list your home page in the "Fallen Heroes" page.

So far he has 14 mirrors spanning four countries, and more importantly the fight is starting to get reported in the mainstream media. To quote Cox, "Whoever said 'never get into an argument with people who buy ink by the barrel' never heard of the Blogosphere."

George Michael shifting to free online music 

The Indy Channel reports that George Michael (half of the hit 80's duo Wham) has announced that after his next album he's quitting the music industry — and shifting to giving away his music for free download:

"I've been very well remunerated as they say for my talents over the years, so I really don't need the public's money," said Michael. "I'd really like to have something on the Internet with charitable donation optional, where anyone can download my music for free. I'll have my favorite charities up there and people will hopefully contribute to that."

Michael said that he expects this move will lower his public profile, since few people will care about him if he's "not making money for someone." He also believes he will enjoy the process of making music much more, once he is not contractually bound to release albums on a pre-determined schedule.

Michael is one of many high-profile artists with a bone to pick with the music cartel, having practically stopped his career after a bitter legal battle with his label, Columbia. Hopefully the few winners from the previous system will be able to blaze a new trail that newcomers with more to lose can follow.

Come-hither noises 

Jim Griffin (former head of technology for Geffen Records) tells The Register that Wi-fi will be the death-knell for DRM/content control (I buy that) and that the solution will be flat-fee models (I'm not so sure yet, but haven't looked at the particulars). Best quote:

By promising to play nice, and building DRM and TCPA technologies, the computer industry is simply making come-hither noises that the rights holders want to hear.

"When I was 14, I told girls I loved them to sleep with them too. It was a fiction. Steve Jobs just leaves a little money on the table," he says. "These theoretical notions of control run headlong into the real historical experience."

All your facts are belong to us 

For the past couple months yet another bad IP bill has been snaking it's way through Congress. HR-3261, aka the Database and Collections of Information Misappropriation Act (DCIMA), would allow database maintainers to sue anyone who copies facts from their database for a competing product. Even if those facts aren't protectable under copyright. Even if they were produced by someone else. Even if the database itself was produced by someone else and is only being maintained by the plaintiff. This was dubbed the WestLaw Protection Act back when it was floated before congress and the WIPO in 1996 and again in 1998, and it's still just a land-grab from a few database manufacturers like WestLaw (Thompson) and LexisNexis (Reed Elsevier). West's near-monopoly on publishing government-produced judicial decisions was always shakily based their copyright of the page numbers in the citations, a basis that was further eroded in a Court of Appeals ruling in 1999.

The bill outlaws making available a "quantitatively substantial part" of a database in a "time sensitive manner," but it leaves interpretation of how exactly what that means to the courts. This will undoubtable lead to the same "we'll let you know whether you're in violation after we sue you" nastiness we've already seen with the DMCA. It could also wind up being quite broad, assuming it's constitutional at all. For example, there's this bit:

5.(C) DISCRETE SECTIONS- The fact that a database is a subset of a database shall not preclude such subset from treatment as a database under this Act.

As I read it, that means even if you didn't copy a quantitatively substantial part of my entire database, like only 50 names from a list of 5 million, I can still nail you for copying a quantitatively substantial part of a sub-database such as the 100 names within a single 9-digit zipcode. There's also nothing saying whether once copied a fact can ever become "clean" again. For example, could Gracenote sue FreeDB because some FreeDB users submitted CD track information that originally came from Gracenote?

If this passes, it will be yet another tool for cutting off the free-flow of information — and in spite of the whining of a few database maintainers they have plenty of tools already. Expect Wal-Mart to use this to suppress price-comparison sites like FatWallet, just as they've tried to do using the DMCA. Expect companies like Gracenote and WestLaw to deliberately "poison the well" of available information so it's impossible to collect a competing database without being infected with infringing copied facts, just as WestLaw did with their copyright on page numbers for legal citations. Expect Clear Channel (owner of American Top 40 and controller of 60% of Rock radio programming) to sue independent DJs (all both of them) who have similar play lists, just as they use copyright law to shut down fan sites that post the Top-40 list now. Expect me to go hide under my desk until the smoke clears...

References

• How the Current Congressional Database Protection Bill Would Go Beyond Current Law, and Why It is Unconstitutional and Misguided (Brandy Karl, FindLaw, 11 February 2004)
• HR 3261 and the ownership of facts (Cobert, LWN, 28 January 2004)
• Chamber urges House to oppose H.R. 3261 "Database and Collections of Information Misappropriation Act" (Thomas J. Donohue President and CEO, U.S. Chamber of Commerce, 19 January 2004)
• ACLU Letter to the House Committee on Energy and Commerce Urging Opposition to the "Database and Collections of Information Misappropriation Act" (Laura W. Murphy & Marvin Johnson, ACLU, 13 September 2003)
• American Library Association Action Alert
• EFF Action Alert
• PublicKnowledge Action Alert
• West Loses Copyright Claim over Page Numbers (Carol Ebbinghouse, InfoToday, 21 June 1999)
• Note On West Copyright Of Page Numbers Of Published Judicial Decisions (James Love, Taxpayer Assets Project, 1 November 1993)
• WIPO Database Proposal and HR 3531 (Stanford Copyright & Fair Use Site, 1998)
• Collections of Information Antipiracy Act (HR 2652, 20 May 1998)
• DIRECTIVE 96/9/EC... on the legal protection of databases (The European Parliament And The Council Of The European Union, 11 March 1996)

MGM v. Grokster == Sony v. Universal? 

LawMeme has a nice side-by-side comparison of last week's oral argument in the MGM v. Grokster case and the 1983 Supreme Court oral arguments in the Sony v. Betamax case. Their conclusion: the arguments being used against Grokster are the same ones that lost when the content industry tried to kill the VCR 20 years ago.

Correction: As a commenter mentioned, the case was Sony v. Universal not Sony v. Betamax — Sony made Betamax, & was sued by Universal Studios.

Groklaw on McBride talk 

Groklaw has a quick summary of SCO CEO Darl McBride's recent talk at Harvard.

SCO's arguments are from so far out on both legal and factual grounds the only question I have is whether they just lose their case or if there will be jail terms for any of their officers as well. As for the Linux community, SCO is a distraction, but hopefully it will also act like like an immunization made from an almost-dead virus — no real danger, but it prepares the body for a similar but more powerful attack later.

Penn State offers free music downloading to students 

On Monday, Penn State launched their program to provide their students with unlimited, legal, free music downloads through the newly reincarnated Napster 2.0. Downloads can be streamed or protected by Digital Rights Management software, and students will be allowed to keep their music until they graduate, or to purchase songs for 99 cents each. According to Penn State's November announcement, the program is intended both to provide a legal alternative to illegal downloading and to "educate students on this issue":

Why is Penn State providing a music downloading service to its students?

Penn State is concerned that some of its students don't understand that downloading music over computer networks without purchasing copyright permission is both unethical and against the law. The University believes it has a responsibility to do something to change that. Penn State will continue to try to educate students on this issue and will continue to enforce its strong policies against copyright infringement. At the same time, the University wants to provide legal alternatives to illegal downloading. This service is directly aimed at helping students to understand the issue and to provide them with an alternative.

I'm curious how this plan pans out, and in particular what percentage of students will crack the DRM so they can listen to downloaded songs on their non-Napster MP3 players (e.g. iPod) or to send music to their friends at other schools. I expect a large number will, but perhaps I'm too skeptical in thinking that you can't teach the lesson "music isn't free" by giving someone free music.

Perhaps a more interesting question is whether Napster can lock students in to their closed discussion communities and radio stations. It's much harder to take these services with you when you graduate than it is to run your whole hard drive through a crack-kit — I'm sure Napster gave Penn State a good deal on the assumption that this is a good foot in the door.

References

• Thousands of Penn State students tune in to Napster (PennState Live, 13 January 2004)
• Q&A: Penn State's new online music service with Napster (PennState Live, 6 November 2003)
• Spanier: Napster agreement to meet student demand, teach integrity (Penn State President Graham Spanier, PennState Live, 18 November 2003)
• File-sharing at Penn State (PennState Live, 13 November 2003)
• Napster Fact Sheet (Napster 2.0)

Music fake-books as a pre-history of sampling 

Just read an interesting paper: Pop Song Piracy, Fake Books, and a Pre-history of Sampling by Barry Kernfeld, presented at the Copyright and the Networked Computer: A Stakeholder's Congress conference. Kernfeld gives a brief history of bootleg fake books (books of lyrics and chord progressions that musicians use to get the gist of a song) and draws comparison to the music industry's current jihad against file-sharing. From the intro:

I'd like to give a quick soup-to-nuts tour through the second half of a book in progress entitled Pop Song Piracy: Bootleg Song Sheets, Fake Books, and America's First Criminal Copyright Trials. The first half of my book might be called "Napster in the 1930s." It resurrects the forgotten story of bootleg song sheets (initially, newspaper-sized sheets of pop-song lyrics, and then, from the mid-1930s, song-lyric magazines). The bootleg sheets, which emerged in 1929, elicited a hysterical response from the music industry, which fought vigorously against these products for roughly a decade, using every legal ploy available, before discovering, extremely reluctantly and somewhat inadvertently, that assimilation was a much more successful policy than prohibition. The simple and obvious historical lesson to be drawn from this story, is that the essential nature of the American music industry is to defend deeply entrenched interests, without regard for change, and in its current-day reactions to Napster and Kazaa, the industry is re-living an expected and already well-established mode of behavior.

Different copynorms for HTTP and P2P? 

Ernest Miller has an interesting post over at LawMeme about why there is moral outcry about shutting down music filesharing on peer-to-peer systems, but not about sharing via the Web. (Props to Freedom to Tinker for the link).

Yet there hasn't been much outcry over the fact that the RIAA has and continues to shut down hundreds of noncommercial websites offering copyrighted MP3s for download without authorization. The RIAA has even threatened lawsuits and gotten college students expelled over their refusal to remove MP3s from college websites. There has been concern (often expressed on LawMeme) about abuse of the DMCA's notice and takedown procedures, but not much outcry when direct copyright infringement has been shown. Why is there no outraged defense of http filesharing?

...

I venture that there seems to be a different set of copynorms for the practice of filesharing via P2P and http. Certainly some defend filesharing via both P2P and http, but others strongly defend P2P with nary a word in favor of http filesharing. Although I have no proof, I suspect that the public's attitude toward filesharing would differ based on the protocol at issue. Would 12-year old Brianna Lahara think it was okay for her to put all her music on a website for the world to copy? Why don't we see people uploading files to their websites more often? Why aren't they more upset when told they can't upload to their website then when they make files available via a filesharing program?

I believe that the difference is that filesharing by http is seen clearly as a public act, while P2P seems more like a private act [Can't stay away from that Public/Private distinction, huh? - Ed.]. If I were to stand on a street corner handing out CD-Rs to strangers (even were I doing so with no possibility of remuneration of any sort), most people would not consider that proper. If the RIAA were to sue me for such an act, would there be such an outcry over the injustice of it all? Yet, if I handed a CD-R to a friend, most would defend it. The difference is that one is private and the other public.

I think we're seeing three effects here:

• I agree that P2P feels more private than the Web, and so people feel the law should butt out. I would argue that the main for this is that P2P software is easier to set up than a webserver, so "normal" people think of P2P as private and HTTP as "that place that I pay someone else to host content for me," if indeed they have a personal webserver at all.

  If everyone had their own website, I expect you would see similar copynorms for both P2P and HTTP. As completely anecdotal evidence, my more techie friends who have their own websites also share music via password-protected HTTP. It would be interesting to see if this distinction between the copynorms for the two protocols exists on college campuses where every student is given his or her own personal webspace.

• P2P is newer, and so copynorms were set for P2P at a time when the Internet was used by normal, everyday people. Remember that when Mozilla and Netscape were first introduced people were still panicking about evil teen-aged hackers who could kill people from their bedroom computer and the horrible discovery that (gasp!) there was pornography on the Net. By the time mainstream America was online all the music-sharing websites had already been shutdown and sharing had moved to Napster, so "normal" people haven't experienced it first-hand.
• There's the idea of reciprocation with P2P, where you are generally sharing with people who share with you. I think it's this aspect that most counteracts the feeling that you're handing out CD-Rs to strangers and brings it closer to the idea that you're sharing mix-tapes with your 5,000 closest new friends.

Volokh-Solum debate on IP 

I meant to blog this earlier, but Ed Felten beat me to it. Eugene Volokh (The Volokh Conspiracy blog) and Lawrence Solum (Legal Theory Blog) are having an interesting debate on the theory behind the idea of treating intellectual property as tangible property, hinging mostly on the idea of the level of property rights necessary to offer incentives to produce intellectual and tangible goods. The postings so far:

• Volokh's initial argument lays out his argument why IP is like tangible property, using a farmer's well as an example of a non-rivalrous tangible property
• Solum's response, challenging the example and bringing up the idea of club goods
• Volokh's reply, clarifying the example
• Solum's much deeper analysis

More RIAA Blowback 

The blowback from the RIAA's lawsuits continues. First, recording artists like the Grateful Dead's Bob Weir, Chuck D of Public Enemy, DJ Moby, Steve Miller and Huey Lewis are all speaking out against the lawsuits, and more importantly against the myth that the RIAA is out to protect the artists. The plight of artists is the only source of sympathy the RIAA has, so this kind of talk hurts a lot. Then in a turnabout-is-fair-play move, a California man has filed lawsuit against the RIAA, alleging that their clean slate program is fraudulent because it offers an amnesty the RIAA does not have the right to grant. Finally, the EFF has started a petition to congress that protests the RIAA's lawsuits, calls for "the development of a legal alternative that preserves file-sharing technology while ensuring that artists are fairly compensated" and asks that the EFF be included in upcoming hearings on the subject. The petition has already received over 12,000 signatures in first two days.

Meanwhile, RIAA president Cary Sherman is invoking that old standby Devil, child pornography, in congress. A pedophile could send "an instant message to the unwitting young person who downloads an Olsen twins or Pokemon file from the pedophile's share folder on Kazaa," Sherman said.

What strikes me is how differently this battle is playing out in the press than the CyberPorn and Kevin Mitnick battles did back in 1995. Remember back then, when the word "hacker" was spoken in the same frightened reverence with which we speak the word "terrorist" now. For better or worse, our society has realized in this last decade that there are worse crimes than porn on the Net, worse violations of our civil liberties than export restrictions on our cryptography, and more dangerous people than our own children. We're wiser now, and that's good, but I also find I long for the days when I wore my Cypherpunk Criminal t-shirt for political protest, not out of nostalgia.

References

• Artists blast record companies over lawsuits against downloaders (Joel Selvin and Neva Chonin, San Francisco Chronicle, 11 September 2003)
• Novato man sues RIAA over amnesty program Suit says music industry's plan misleading (Benny Evangelista, San Francisco Chronicle, 11 September 2003)
• Take a Stand Against the Madness; Stop the RIAA! (EFF petition against the RIAA, 12 September 2003)
• RIAA: Child porn rife on P2P networks (Declan McCullagh, 9 September 2003)

RIAA Blowback 

As Slate points out, if you're one of the more than 4 million people who use the KaZaA network on any given day you've a greater chance of being hit by lightning than being one of the 261 people the RIAA just sued. The RIAA's strategy all along has been cultural: scare people into not sharing, and "educate" the public that file sharing is an evil treat to our society's very survival. Whether these lawsuits (and the thousands more they plan to file) have a chilling effect will be seen over the next couple months. The battle for our hearts and minds, however, is not going so well for the RIAA.

So far the press has reported on a few members of the seamy file-sharing underworld. One is Brianna LaHara, a 12-year-old Catholic-school honors student who was "on the verge of tears when she found out about this." Another is Heather McGough, a 23-year-old single mom of two who got KaZaA when a friend of her 14-year-old cousin told her she could "get the Gateway to play songs." Then there's Durwood Pickle, a 71-year-old grandfather who says his teen-aged grandchildren use his computer during visits to his home. "I'm not a computer-type person," Pickle said. "They come in and get on the computer. How do I get out of this? Dadgum it, got to get a lawyer on this."

Each defendant is potentially liable for fines ranging between $750,000 and $150 million, though of course the RIAA is offering settlements. Brianna's mom has already accepted a quick settlement, paying $2000.

The reactions of the defendants have varied. Yale University photography professor Timothy Davis said he'll stop sharing music files immediately. "I've been pretending it was going to go away," Davis told reporters. "I'm not some kind of college student who's downloaded thousands and thousands of things. It isn't like I'm trying to broadcast these things anywhere." Most quoted in the news, however, have expressed frustration. "I can understand why the music industry is upset about this, but the fact that we had access to this as the public, I don't think gives them the right to sue us. It's wrong on their part," said Lisa Schamis, a 26-year-old from New York. Schamis added that she is unemployed and would be unable to pay any large fine or settlement. Her sentiment is shared by defendant Vonnie Basset, a bookkeeper in Redwood City, California. "How are we supposed to know it's illegal? Half the things on the Internet must be illegal then," said Ms. Basset, who says her 17-year-old son uses KaZaA. "Why don't they sue KaZaA? Why are they suing the people? That's the part I don't understand."

Marvin Hooker, a 39-year-old San Francisco bank employee, expressed the philosophy held by many. "To me, the way I see it, I am not taking anything from them," Mr. Hooker said. He compared downloading music to making a copy of music or a tape for friends. "I don't see people getting sued because of that," he said. Sylvia Torres, Brianna LaHara's Mom, put it more simply: "It's not like we were doing anything illegal. This is a 12-year-old girl, for crying out loud."

This is, of course, the exact message the RIAA wants to stamp out. But with such normal, mainstream defendants and such out-of-this-world potential fines, it's hard not to see the RIAA as the big bully extorting everyday citizens.

Attempts by the RIAA to soften the legal attack have met with a good deal of scorn. One attempt is their Clean Slate amnesty program, whereby the RIAA promises not to sue file-sharers who sign a notarized form admitting to copyright violation and promising never to do it again. But as the Electronic Frontier Foundation points out, the RIAA does not actually own any copyrights and member labels are not bound by any agreement they make. Furthermore, such admissions could be used by other rights holders to prove a sharer was a "willful infringer," which could lead to prison time.

Universal Music Group has even cut the price of a CD from $18.98 to $12.98, citing falling CD sales and, of course, piracy. Their olive branch to consumers, however, is being seen as too little, too late. Renee Graham, of the Boston Globe, writes:

In other words, after years of gouging customers, the recording industry is desperate. Sparked by Napster, and continued through such file-swapping services as KaZaA, Morpheus, and Grokster, the free-music revolution has left the major labels reeling and hemorrhaging. And CD prices, which despite promises to the contrary have steadily increased through the years, turned off even those who weren't inclined to sit at their computers downloading their favorite tracks.

In an article for The Register, Ashlee Vance points out that this is the first price cut since the CD format came out in the 1980s. At the time, the fact that CDs were a new format was used as an excuse to raise prices above LPs, with the promise that prices would drop as the new format became mainstream. She also points out that just two months ago a pair of music labels were yet again nailed for price fixing by the Federal Trade Commission.

None of this helps portray the music industry as a poor innocent victim, being picked on by wicked 12-year-old girls. As for the effect on file-sharing, I honestly hope that the RIAA's jihad has a chilling effect for a while. Each turn of the screw has unleashed new technology, from music webpages, to multimedia search pages, to Napster, to complete peer-to-peer file sharing. I keep hoping for one more forced revision to the technology before the music industry finally gets a clue. But I can guarantee who will win this battle in the end. A Forrester report released a few weeks ago reports that 49% of 12- to 22-year olds downloaded music last month. When it comes to pride, stubbornness and brazen pig-headedness, even the RIAA can't stand up to the combined will of millions of teenagers.

References

• An Offer You Can Refuse: The RIAA's amnesty deal may not keep you from being sued. (Paul Boutin, Slate, 8 September 2003)
• Hundreds of music swappers sued: Record industry follows up on threat of wider legal action (Associated Press, 8 September 2003)
• RIAA Lawsuit Offensive Begins (Lawrence Solum, Legal Theory Blog, 9 September 2003)
• 12-Year-Old Sued for Music Downloading (New York Post, 9 September 2003)
• RIAA's Lawsuits Meet Surprised Targets: Single Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendant (Frank Ahrens, Washington Post, 10 September 2003)
• RIAA tries to rescue PR disaster with quick settlement (Joe Barr, NewsForge, 9 September 2003)
• RIAA settles with 12-year-old girl (John Borland, CNET, 9 September 2003)
• 261 Lawsuits Filed on Internet Music Sharing (Amy Harmon, New York Times, 9 September 2003)
• Clean Slate Program (RIAA, September 2003)
• Why the RIAA's "Amnesty" Offer is a Sham (Electronic Frontier Foundation, 9 September 2003)
• Retailers are counting on CD price cuts to help sales (Evan Pondel, Los Angeles Daily News, 8 September 2003)
• Lower CD prices may not be music to downloaders' ears (Renee Graham, Boston Globe, 9 September 2003)
• Universal's CD price cut comedy gets five stars (Ashlee Vance, The Register, 5 September 2003)
• Labels charged with price-fixing — again (Ashlee Vance, The Register, 29 July 2003)
• From Discs To Downloads (Josh Bernoff, Forrester Research, August 2003)
• FTC Finds Vivendi Subsidiaries Violated Antitrust Laws In Distribution of Three Tenors CDS (Federal Trade Commission, 28 July 2003)
• Record Companies Settle FTC Charges of Restraining Competition in CD Music Market (Federal Trade Commission, 10 May 2000)

BBC Creative Archive 

Greg Dyke, director general of the BBC, has a vision. In a speech he gave this Sunday at the Edinburgh International TV Festival he described his plans for how to leverage the huge BBC media library — give it away.

Looking ahead, let me give you one example of the kind of thing the BBC will be able to do in the future.

The BBC probably has the best television library in the world.

For many years we have had an obligation to make our archive available to the public, it was even in the terms of the last charter.

But what have we done about it?

Well, you all know the problem.

Up until now, this huge resource has remained locked up, inaccessible to the public because there hasn't been an effective mechanism for distribution.

But the digital revolution and broadband are changing all that.

For the first time, there is an easy and affordable way of making this treasure trove of BBC content available to all.

Let me explain with an easy example.

Just imagine your child comes home from school with homework to make a presentation to the class on lions, or dinosaurs, or Argentina or on the industrial revolution.

He or she goes to the nearest broadband connection - in the library, the school or even at home - and logs onto the BBC library.

They search for real moving pictures which would turn their project into an exciting multi-media presentation.

They download them and, hey presto, they are able to use the BBC material in their presentation for free.

Now that is a dream which we will soon be able to turn into reality.

We intend to allow parts of our programmes, where we own the rights, to be available to anyone in the UK to download so long as they don't use them for commercial purposes.

Under a simple licensing system, we will allow users to adapt BBC content for their own use.

We are calling this the BBC Creative Archive.

When complete, the BBC will have taken a massive step forward in opening our content to all - be they young or old, rich or poor.

But then it's not really our content - the people of Britain have paid for it and our role should be to help them use it.

The vision and even the project name sounds like a cross between the Creative Commons project, chaired by Lawrence Lessig, and the Internet Archive founded by Brewster Kahle. No surprise then that Slate reports the BBC talked to both Lessig and Kahle before making their plans. In a blog comment, Kahle also acknowledged the visit: "Yes, the BBC crew was brought to the Archive by Larry Lessig and we showed how inexpensive it can be and how we have dealt with the ego's and restrictions issues that always come up. I dont know what role we played, but their decision is fantastic and hopefully trendsetting... thank you bbc."

There are a lot of details that haven't been announced yet. For example, it's not clear how much of the BBC library the BBC owns free and clear, or at least freely enough that they can redistribute under a new kind of license. Then there's the inevitable argument from commercial interests that the BBC shouldn't be allowed to compete with their own online distribution. This kind of argument will probably hold less sway in the U.K. than it would here in the U.S., however, as the British are already comfortable with the idea of a strong government-sponsored media.

There are lots of reasons this is a great move on the part of the BBC. First and most important, the Internet has brought down distribution costs to the point that, as far as gifts to humanity go, this has a lot of bang for the buck. Second, BBC shows are paid for by fees charged to UK television owners, so there's a good argument that the library is already owned by the British TV-watching public. These are reason enough, but I like to think there's even an argument that it is in the BBC's self-interest to share with free-loading yanks like myself. As Dyke says in his speech, Britain's television reflects its culture, tastes and values. That kind of export can have far-reaching secondary benefits for a nation, from increased tourism to more desire for British goods. Just think of what a great marketing tool Hollywood has been for Levis Jeans. By making BBC News, BBC documentaries or even Absolutely Fabulous easily available to the world at large the British culture may find real economic returns. As The Guardian put it, "if the BBC doesn't get its media out to as many people as possible, it's failing its charter requirements."

Sidenote: It took me a few days to blog about this, and yet it still hasn't hit the U.S. press. Aside from the Slate article, Google News is turning up almost no coverage outside of the UK press and the blogs. I try to stay away from conspiracy theories (really, I do) but I can't help but wonder if the silence has anything to do with the battle being raged between the BBC and Rupert Murdoch, or the fact that Murdoch's media empire stands to lose the most if things like this start to catch on? Why is this a non-story on this side of the pond?

[UPDATE 9/11/2003: Lawrence Lessig has an article in the Financial Times about the BBC Creative Archive.]

References

• Richard Dunn Memorial Lecture (Greg Dyke's speech) (Greg Dyke, BBC, 24 August 2003)
• Taped at the BBC: Can the Beeb put its entire archive on the Web?
• Auntie's digital revelation (The Guardian, 28 August 2003)
• Lawrence Lessig: The BBC's lessons for America (Lawrence Lessig, Financial Times, 8 September 2003)

California Supreme Court Rules in DeCSS-posting Case 

The California Supreme Court ruled today that trade secret laws can trump first amendment protections, overturning a previous Court of Appeals ruling. The case involves an injunction against Andrew Bunner, a San Francisco man who posted the DeCSS DVD encryption-crack code on his Web site. The injunction, which required Bunner to remove the code, was thrown out by the Court of Appeals on First Amendment grounds. The decision is quite narrow, essentially saying "the First Amendment does not categorically prohibit preliminary injunctions to enjoin the publication of trade secrets" and sends the case back to the Court of Appeals to re-examine the facts of the case.

I've read the decision, but rather than subject you to my legal ignorance I'll defer to people in the know. First, Eugene Volokh blogs some legal concerns about the decision, saying that the court failed to explain how it determines that some speech is a matter of "private concern" (which gets less protection than something of public concern) and why it's proper for the court to make this decision. He also questions their application of case law, especially as it relates to whether there were alternative channels to express the same speech (Justice Moreno makes a similar point in his concurring opinion).

As to how the case will wind up, Dan Gillmor posts this little gem at his blog:

I've had a note from a lawyer involved in the case, Tom Moore of Tomlinson Zisko in Palo Alto. He makes some interesting points. Here's what he says:

I'm one of Andrew Bunner's lawyers. While today's Mercury News Internet article is true as far as it goes, it misses the fun part entirely.

The decision is a triumph of politics over logic. When you read the decision, you can follow the logic: (1) Software implicates the First Amendment; (2) trade secrets law implicates the First Amendment; (3) the proper level of scrutiny is intermediate First Amendment scrutiny; and (4) assuming that everything in the trial court's order is supported factually, the order survives that level of scrutiny. Then you see where politics comes into play: The next logical step should have been for the Cal. Supreme Court to review the record independently. Instead, the Court sent the case back to the Court of Appeals to review the record to see if the facts were there. It's not as if the Court could not review the record. Justice Moreno did it and concluded: "the DVD Copy Control Association's... trade secret claim against Bunner is patently without merit."

So, the Court did the politically safe thing by dodging the actual facts.

Those of us who work on Mr. Bunner's behalf are more entertained than disappointed. The Court has given us a lot to work with. Indeed, the more significant decision in this case was the Cal. Supreme Court's earlier decision, Pavlovich v. Superior Court. In that decision, the Court held that the injunction does not extend into Texas. That means that CSS and DeCSS is a secret in California only. Eventually, the public nature of DeCSS will come to the fore.

The precedents set in this case may be important, but as far as DeCSS is concerned this is all shutting the barn door after the horses have already bolted, caught a steamer and are enjoying their vacation in Tahiti. And I have the t-shirt to prove it.

References

• Court: Trade secrets top free speech in DVD crack case (Associated Press, 25 August 2003)
• DVD Copy Control Association, Inc. v. Andrew Bunner (Supreme Court of California, 25 August 2003)
• Trade Secrets and the First Amendment (Eugene Volokh, The Volokh Conspiracy, 25 August 2003)
• California Court Says No Web Posting of Trade Secrets (Dan Gillmor, Dan Gillmor's eJournal, 25 August 2003)
• Pavlovich Court Opinion (EFF archive site, 25 November 2002)

No seat at the WIPO table for open source 

Back in July, a group of 68 economists, scientists, industry representatives, academics, open-source advocates, consumer advocates and librarians proposed that the World Intellectual Property Organization (WIPO) host a meeting on the use of open collaborative development models. Examples described in the proposal include IETF standards, open-source software such as Apache and Apple's Darwin OS, the Human Genome Project and open academic journals, among others. The WIPO's initial response was quite favorable. Dr. Francis Gurry, WIPO Assistant Director and Legal Counsel, was quoted by Nature Magazine as saying "The use of open and collaborative development models for research and innovation is a very important and interesting development... The director-general looks forward with enthusiasm to taking up the invitation to organize a conference to explore the scope and application of these models."

Needless to say, business interests like Microsoft saw such high-profile acceptance of open source as a threat, and immediately lobbied to have the idea squashed. The Washington Post and National Journal's Technology Daily report that Lois Boland, the U.S. Patent and Trademark Office Acting Director of International Relations, dismissed the meeting as out of the WIPO's area, saying the organization is "clearly limited to the protection of intellectual property." "To have a meeting whose primary objective is to waive or remove those protections seems to go against the mission," Boland told National Journal. She argued specifically against the discussion of open-source models, claiming that open-source software is not protected under copyright law but only contract law, which is not in the domain of WIPO. She also protested the manner in which the meeting was organized, saying WIPO's agenda should be driven by member nations and the idea came from outside the organization. Under increasing pressure, WIPO canceled the meeting, saying the polarized political debate made the possibility of international policy discussion "increasingly remote."

Lawrence Lessig's blog blasts Boland, saying "If Lois Boland said this, then she should be asked to resign. The level of ignorance built into that statement is astonishing, and the idea that a government official of her level would be so ignorant is an embarrassment." Personally I think Lessig is missing the broader picture here, or perhaps he is just not cynical enough. Rather than ignorance, Boland is simply showing unusual candor in her statements. Her position is that WIPO should promote international IP laws that support the current content industry, regardless of how that affects new upstart industries, national productivity, the economy or other important concerns. In the words of The Economist, she is being pro-business, but not pro-market. I agree with Lessig that this is abhorrent, but given how the U.S. continues to force brand-new IP protections down the world's collective throat it seems to be a fair description of current U.S. policy.

The issues described in the proposal to the WIPO are not going to go away, and will eventually need to be addressed with or without the involvement of WIPO. As Ed Black, president of the Computer and Communications Industry Association, said on hearing the meeting was canceled: "Does this indicate that WIPO is abdicating authority and responsibility for these issues, including open source for the future? If so, we will all live by that, but then so must they. They should step up the plate or step aside. ... It is inexplicable that they would shut the door on what are clearly important issues."

References

• Letter to WIPO Director General Kamil Idris (7 July 2003)
• The Quiet War Over Open-Source (Jonathan Krim, Washington Post, 21 August 2003)
• U.S. Official Opposes 'Open Source' Talks At WIPO (William New, National Journal's Technology Daily, 19 August 2003, requires subscription, but see this copy)
• The Extremists in Power (Lawrence Lessig, Lessig Blog, 22 August 2003)
• Pro-market, not pro-business: Governments should keep their distance from businesses and their bosses (Bill Emmott, The Economist, 26 June 2003, subscription required but see this copy)

Subpoena Targets Organizing on the Net 

I expect the idea seemed simple in the RIAA's boardroom. First, declare jihad against music sharers everywhere. Then make it known that you would be sending out subpoenas and filing lawsuits against anyone and everyone who copies. "It doesn't matter who they are" said Cary Sherman, president of the RIAA. No doubt, they must have thought, the 60 million Americans out there who currently share music will get the message and the rest of the country will thank the record companies for getting tough on crime.

Only now the spin-doctoring is getting away from them. First, the Associated Press used information in the subpoenas to locate and interview some of the targets before even the RIAA had received their names. Far from being the poster-children for underworld crime the RIAA would have trotted before the cameras, those interviewed were college students, parents of file-sharers, and even a grandfather who uses file-sharing networks to download hard-to-find recordings of European artists.

Now comes a new hard lesson for the RIAA about life in the Internet age: these hapless individuals are starting to use the Net to organize. First was subpoenadefense.org, a site started in April by the Electronic Frontier Foundation, US Internet Industry Association and other organizations to offer resources to those who wish to defend themselves against the recent torrent of subpoenas. They also host a service where you can enter the handle you use on peer-to-peer networks and see if you might soon be the target for a subpoena. And now a new site called CopyWrongs.org is offering every subpoena recipient their own blog, either signed or anonymous, through which they can let their own story come out. The site, started by volunteers that include MIT Media Lab researchers and programmers who previously worked on the FreeSkylyarov.org site, is bound to give us the exact perspective the RIAA doesn't want us to see: just how much those 28% of Americans who share music online look just like the other 72% of us.

References

• Music-Sharing Subpoenas Target Parents (Associated Press, 24 July 2003)
• Subpoena Defense
• CopyWrongs.org

1000 down, 39999000 to go... 

The RIAA has been feeling their oats after their victory against Verizon back in April, where the ISP was forced to reveal the names of customers who had been engaging in illegal file-swapping. Since then the RIAA has issued at least 911 subpoenas and expect to file at least several hundred lawsuits in the next few weeks in what can only be described as a "shock and awe" fight for the mindeshare of the average American.

However, more recent demands for user information have been rebuked. Last week MIT and Boston College both challenged subpoenas for user identification on their networks on two points. First, the demands that come under the DMCA are in conflict with the Family Education Rights and Privacy Act, which prohibits colleges from giving personal information without first informing the student. Second, they charge that the RIAA should have filed its subpoenas in Massachusetts instead of Washington, DC. And now Pacific Bell Internet Services is challenging more than 200 subpoenas on the same grounds: that they violate their user's privacy and that they should have been filed in California, not Washington, DC.

The RIAA is correct in claiming that these challenges are only on procedural grounds, though already the RIAA's shotgun approach has drawn the ire of Senator Norm Coleman, R-Minn., who chairs the Senate Permanent Subcommittee on Investigations. Another point I haven't seen brought up in the news is that this "procedural challenge" could force the RIAA to change the venue in which its subpoenas are filed away from the court where their original Verizon case was won. (I'll leave the analysis about whether that matters to someone with the necessary legal knowledge.)

Of course, the real battle is still for the hearts and minds of the American public. The RIAA could care less about the hundreds of college students and little-old-ladies they're trying to sue for millions of dollars each, what's important is the millions of Americans who think that sharing music is OK. And on that front they have more bad news: a recent survey from the Pew Internet & American Life Project reports that 67 percent of Internet users who download music say they don't care about whether the music is copyrighted. If you accept the Ipsos/Reid finding that one quarter of Americans have downloaded music, that comes down to about 40 million Americans who have downloaded music and don't care. And that, my friends, is a lot of subpoenas.

References:

• Americans Continue To Embrace Potential Of Digital Music (Ipsos-Reid, 4 December 2002)
• Verizon Gets 14 Days to ID File-swapper (C|Net, 24 April 2003)
• MIT responds to RIAA subpoena (MIT News, 22 July 2003)
• Music-Sharing Subpoenas Target Parents (Associated Press, 24 July 2003)
• ISP Sues Record Industry Over Subpoenas (C|Net, 31 July 2003)
• Senator Launches Probe Into RIAA Subpoena Blizzard (Internetnews.com, 1 August 2003)
• Music file swappers not cowed by subpoena threat (Silicon Valley / San Jose Business Journal, 1 August 2003)

We control the horizontal... 

I can hear it now:

Exec #1: "Members of the Word Media Cartel, we are against the ropes. We've tried imposing draconian penalties for even trivial piracy. We performed a perfect end-run around the fair use doctrine with the Digital Millennium Copyright Act. We've sued into bankruptcy anyone who might have a business model more survivable than our own. We've even sued down-and-out college students for $97.8 trillion dollars each, as an example to others who would stand in our way. And yet the peer-to-peer networks continue to thrive."

Exec #2: "If only our industry had a way to convince people that piracy was wrong. You know, change how people think about copying music and movies."

Exec #1: "Yes, yes, but there's no point in wishing for... hey wait, say that again!"

And so it came to pass: the Motion Picture Association of America launched an unprecedented media blitz to convince the American public that by using Gnutella you hurt not just Disney stock-holders, but also Jerry, the man who fetches coffee for George Lucas every morning at 5am.

The sheer power of this blitz is daunting. The kickoff this Thursday will have thirty-five network and cable outlets all showing the same 30-second spot in the first prime-time break (a "roadblock" in ad-biz terms). Then every major theater in the country will play daily trailers on all screens in more than 5,000 theaters. Whew. And all that time is donated, which would be incredibly impressive if the spots weren't essentially being donated to themselves.

And now the $97.8 trillion-dollar question: is the American people so pliable that their morality can be changed by a media blitz? (Could that be the manic laughter of of thousands of ad executives I hear in the distance?)

References:

• College students sued
• Background on the DMCA

DVR Manufacturers Capitulate 

The Associated Press has an overview piece on how the makers of digital video recorders are capitulating to (excuse me, "voluntarily cooperating with") Hollywood and other members of the Content Cartel. Not too surprising given the shots fired through the bow of Sonicblue (makers of ReplayTV), forcing them into bankruptcy after paying millions in legal fees. In line with the rest of the industry, ReplayTV's new owners say they will be good little boys and remove the ability to auto-skip commercials or send recorded programs over the Internet to other Replay users.

In the short run this means consumers get fewer features, but in the long run it's just more sand thrown against the tide. DVRs are just commodity hardware, some standard drivers and a little bit of interface software. If UltimateTV, TiVo or ReplayTV doesn't provide the features people want then a whole host of small manufacturers, kit makers and do-it-yourself modification kits are all more than willing to fill the gap.