Intellectual Property

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?

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.

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?

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.

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.

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…)

“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.

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)

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.

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).