It's sad how much we've been reduced to fighting rear-guard actions in the Copyright Wars. The Cartel blitzkreig has overrun Paris and we're now left desperately trying to buy some time to Dunkirk what we can.
Witness the latest motion by the CDT (Center for Democracy and Technology) in defense of TiVo's approval under the broadcast flag doctrine. Rather than pointing out that the Cartel's opposition to TiVo's 'SmartRight' system is a perfect example of the imbecility of the broadcast flag doctrine, CDT is reduced to calling the broadcast flag a "reasonable balance" and attempting to defend an implementation of it. Sad sad.
Here's the quick rundown: the FCC issued a broadcast flag directive under while all broadcast content is required to contain a tag identifying it as such and devices that record broadcast (you know, that stuff that gets beamed for free into your home?) are required to block people from recording and sharing it (you know, that activity that SCOTUS legalized in Betamax).
TiVo implemented a version of this (which I noted back in August under the heading "is it closed enough?") called SmartRight. This lets people set up sharing networks of TiVo devices in advance and send material around to a few friends, regardless of the broadcast flag. The Cartel (and major league sports) got their knickers in a twist because the system doesn't have geographical limitations in it, thus potentially allowing someone to share a recorded show into an area where it was blacked out. Quel Horreur! The FCC approved SmartRight and now the Cartel are appealing that approval.
The Cartel favors so-called proximity limitations, such as restricting sharing to within a house or dorm. CDT argues that this is simply an attempt to protect an outdated business model. This is true, but it's framing the debate in loser's terms. Sadly, that's the only language left available to us. We've lost the ability to identify idiocy as such and are left to argue about such key issues as whether we'd like our prison jumpsuits in orange or yellow.Posted by dr. wex on September 30, 2004 11:38 AM
If you are interested in internet law related to pop-up advertising and p2p, check out the legislative attacks listed below. In the near future, I hope to write more fully on this topic for Findlaw.com's Modern Practice (stay tuned):
In the Senate:
Spyblock Act – Senate Committee on Commerce, Science, and Transportation passed a bill that attempts to regulate the unauthorized installation of computer software and to require clear disclosure to computer users of certain computer software features that may pose a threat to user privacy, etc.
Full Senate expected to vote on bill by end of year.
In the House:
Internet Spyware Prevention Act – House Judiciary Committee passed a bill that criminalizes intentionally accessing a computer w/o authority or exceeding authority; up to 5 years if further to another fed’l crime (e.g., privacy), 2 years if fraud or damage to a computer by installing spyware.
Piracy Deterrence and Education Act – House Judiciary Committee passed a bill that makes it a crime to make 1,000 or more copyrighted works available for download; also illegal to use camcorders to record 1st-run movies in theaters; 3 years for file sharing or 5 years if fin’l gain.
Safeguard Against Privacy Invasions Act – House Committee on Energy and Commerce passed a bill that seeks to protect users of the Internet from unknowing transmission of their personally identifiable information through spyware programs. FTC to prohibit installing spyware programs on covered computers without express consent in response to a clear and conspicuous request or through an affirmative request. Prohibits use of a spyware program to collect personally identifiable information from the covered computer unless notice of such use is provided. FTC enforcement and criminal penalties.
Full House could begin voting on above bills very soon.Posted by jason allen cody on September 23, 2004 07:57 AM
Groklaw posts a fabulously funny and accurate article, which serves as a broadside that smashes SCO, Disney, and various other money-grubbing copyright abusers of the early 21st century.Posted by dr. wex on September 22, 2004 07:06 AM
Three notes, a simple decision and a complicated issue. Let's see if I can dissect this properly.
The Sixth Circuit has issued an opinion in two related cases we'll call Bridgeport Music v. Dimension Films. The item at issue is the sampling of three notes from an old George Clinton tune. The notes (re)appear in a number of new rap recordings and initially - back in 2001 - there was a big action to sue about 800 defendants over this unauthorized sampling. Those cases got severed and now a couple of them have been treated by the 6th.
What the court has said is that there is no sample too small to be infringing. The court stated that if performers want to sample they need to get permission, period. This applies to the sampling of performed material. Nothing in the court's opinion prevents someone from 'sampling' the original score and performing those three notes themselves.
In legalese what the court is trying to say is that there is no de minimis exception for music. And, as Lessig points out, that is true on a strict reading of the statute (Copyright Act of 1971). You can copy performed music; you just can't sample, says the Sixth.
The court is trying to draw a so-called "bright line" in this area. A bright line is a simple and strict test that can be applied in an objective fashion. Sort of the opposite of the infamous "I'll know it when I see it" definition of what is pornography. In this case the Sixth specifically noted that it was going beyond the arguments of the plaintiffs in an attempt to create this line.
The problem is that this is a very odd line to draw. It seems to turn on the presence of a particular kind of technology (digital) that permits cut-and-paste. It also seems to discriminate against a particular set of creative endeavors (digitally produced rap, hip-hop, scratch, etc.) in a way that doesn't apply to other art forms, either musical or non (e.g. bricollage).
It's worth noting here that the three notes weren't just directly pasted into the new material. The original sample is four seconds long; the edited version uses two of those four seconds, pitch-shifted, looped, and extended to seven seconds. Susan Butler has a nice analysis of this process in Entertainment Law Weekly noting that the notion of "originality" has gotten somewhat short shrift in this discussion. It's unclear whether the Sixth meant to state that any digital recording of any analog sound is original or not.
The case is also a little odd in that the samplers did not deny the origin of the sample. Presumably if they had we would have watched the parties engage in some kind of shell game in which the original artist or suing copyright holder would have had to demonstrate in some fashion that those three notes were "his." There's more than a little controversy in sampling over whether, when, and to what degree you acknowlege your sources. Some popular artists (e.g. Moby) delight in talking about their influences and their search of old used-LP stores for rare and novel sample sources. Others are much more closed-mouth. Perhaps the latter are wiser?
The court also ignored what is called "legislative history" in this case. Sampling didn't exist when the law was written in 1971. What that means is that judges usually look to decided cases and recent legislation to help interpret the language of older statutes. Since 1971 several interpretations of the Copyright Act have ruled that recordings have less protection than compositions, not more. This ruling reverses that history by ignoring it in favor of reading the literal language.
Finally, as the techno-geek commenters in Lessig's blog have noted, the theory of Fourier transforms pretty much guarantees that you can recreate a digital waveform by first breaking down the original and then producing two or more original waveforms that are digitally combined to be equivalent to the original. I imagine that a patch or plug-in for digital sampling software that did this would be a simple matter of programming. What the Sixth would make of that is anyone's guess.
So yes, the court has drawn a bright line, but it's a pretty poor place to draw one. If three performed notes are protected expression then we're in pretty sad shape. A sarcastic observer might say that the court opted for a simple (even if wrong) test because it is keeping in mind that it has something north of 800 more sampling copyright cases that may come before it for appeal.
If courts keep issuing idiot opinions like this I may have to revise my SCOTUSwatch opinion. Someone has to sort this mess out and the Supremes will find a bunch of these cases looking for docket space. They'll have to take at least one, even if it's just to remand it back down for clarity.
P.S. For the curious: the title of this entry refers to a legendary sign that appears in the MIT Laser Lab. On the door to the lab from the outside is a sign warning "Do not stare directly at laser with your eye." On the housing of the laser itself is a second sign that says "Do not stare directly at laser with your OTHER eye."Posted by dr. wex on September 17, 2004 12:43 PM
or at least, not illegal. What is illegal is making copies of music someone else owns and doesn't want to you to copy. But that's far from the end of the story, however much the Cartel wants it to end there.
In a long piece that must be giving coronaries to the RIAA, NYTimes music critic Jon Pareles lays out the case for free legal downloads. First, there's the act itself. If you download, you're not committing a crime. Those people the RIAA sued? They're people who offered music up to be copied. No share-ee, no sue-ee. (At least, not yet. Let us not say this state of affairs is permanent.)
Then there's the fully legal downloads. The unknown bands. The indie labels. The rare or hard to find tracks from musicians as well known as Bob Dylan. And the logical successor to the tape-sharing networks like the Deadheads: furthurnet.
Pareles' piece gives lots of URLs and some good notice of things you didn't know (well, *I* didn't) but not much depth on the underlying issues. Still, a good set of links to follow and fill your hard drive with.Posted by dr. wex on September 17, 2004 08:30 AM
A Federal Judge in the Northern District of California has ruled against the U.S. Department of Justice in their Anti-trust claims brought against software giant Oracle Corporation. The DOJ sought to enjoin Oracle's hostile takeover bid of PeopleSoft on grounds that the merger would violate section 7 of the Clayton Act.
In a 164-page discussion, Chief Judge Vaughn Walker ruled that the Government failed to meet their burdens of proving anticompetitive effects of the software merger.Posted by AZ on September 10, 2004 12:10 PM
Most tech pundits aren't worth their weight in electrons. They're shilling for whoever buys the most ad space in their magazines, or pushing their pet projects or peeves. In some cases, they're just plain uninformed, ignorant of the topic they're trying to cover.
Still, like most, I have my favorites in the pundit game. They're good, mostly independent, and well-informed/highly clued by comparison with the mean. It's rare and somewhat disappointing to see two of them being so totally wrong on one day.
First up, Robert X Cringely. Writing his weekly piece "Pulpit" on pbs.org he's usually entertaining, off on some whacky scheme or other. Lately it has been a lot about distributed wireless. This time, however, he's predicting the demise of the RIAA and, much as I'd like him to be right, he's just completely wrong.
His thesis is that iTunes' affiliate program will put the RIAA out of business. Would that it was this easy.
The affiliate program works just like Amazon's - you put a link on your Web site to tunes you like, people download them, you get a nickel. Apple has signed up over 300 small and indie labels to promote their artists through the program.
Cringely's argument is that what the Cartel provides is money and marketing - a way for an artist to reach an audience. The Web makes that dispensable, or avoidable. Except it really doesn't. The Amazon and BN affiliate programs haven't put the NYTimes Best Seller list out of business - in fact, I doubt they've even had much impact on it. Likewise, even if MSFT signs onto the affiliate bandwagon (and you can bet they will, given that iTunes has it) there just won't be enough of an impact on the RIAA's revenue stream to be noticeable.
Speaking of MSFT's entry into the downloadable digital music business brings us to pundit #2, Walt Mossberg. He has been pre-testing the new Microsoft music store and labels it "Not there yet."
The problem with this is not his opinion on the store - he's probably right - but that he's missing the boat. Microsoft doesn't win battles by making things that are better than others. They make things that are cheaper and more ubiquitous. Your stuff can be ten times worse than the competitors' stuff but if you own 90+% market share you still come out ahead.
Mossberg notes that WMP download products will work on multiple players whereas iTunes is specific to the iPod. He also notes that the Windows experience has been made fairly smooth and doesn't require starting a specific program (why the hell isn't iTunes available via a Web browser interface anyway?). True, he notes some flaws with the current version, of which the catalog size may be the most serious - it's half of what Apple offers. But MS's Version 1.0 has always been feature-poor relative to the competition. If there's one thing MS knows how to do it's pile on features in future versions.
What this adds up to is not, as Mossberg would have it, "no match for iTunes" but rather a serious competitor that I would expect to see move into the #1 position within a year of release (currently slated for Oct 12).
I probably won't have a lot to say about this issue, but I did want to blog two useful links in this discussion. I will say that I think the IETF is reaping what it has sown. RAND (Reasonable And Non-Discriminatory) licensing is fine for the corporate world, but death for open source and public standards. I'm glad W3C came down on the side of RF (Royalty-Free).
Disclosure: I used to work for small software companies that would have been effectively exterminated by RAND. I no longer work at any such company nor do I hold their stock. I retain my political opinion based in part on my personal experience.
People automatically assume that RAND means "free" or "near-free" but what IBM and MSFT consider "near free" is spine-breaking for startups and small businesses. RAND just says you charge everyone the same price, not that the price is itself affordable.
Link one is Netcraft's coverage of the story. If you are interested in getting updates there's a "Subscribe" link at the bottom of the page.
Link two is the Apache Software Foundation (ASF)'s position letter on the matter. It includes in whole Lawrence Rosen's analysis of why the Microsoft proposal is antithetical to the tenets of open software development and licensing. Both the ASF letter and Rosen's remarks are clear and non-polemical.Posted by dr. wex on September 3, 2004 06:34 AM
The once irascible predator of the Internet shed some teeth, scales, and a name, and settled on the corporate side of the digital divide. Although the terms of the settlement remain undisclosed (what’s new?), Claria ended litigation with Wells Fargo and Quicken a month ago and with five other parties a few months prior. Apparently, Claria even formed business relationships with some of those who previously eschewed Claria’s pop-up advertising practices. This is the reverse of what happened in the original Washington Post v. Gator case, where some of the defendants had been advertising with Gator prior to harpooning it with copyright and trademark infringement claims.
Overall, the online advertiser appears to have emerged from the cyberswamp waters relatively unscathed—not long ago, it even initiated plans for an IPO. Perhaps staking a Darwinian claim to its continued existence, a Claria spokes person announced that “Claria will continue to protect [its] business model.”
Notwithstanding Claria’s survival, the battle continues regarding the legality of pop-up advertising and related online advertising methods. WhenU.com has appealed to the Second Circuit its loss to 1-800 Contacts, and Google defends against claims of infringement for its trademark keying activities in the Eastern District of Virginia and in the Northern District of California.
Article on Claria Settlement:
Background information about the Washington Post v. Gator case:
Article regarding 1-800 Contacts v. WhenU.com dispute:
Articles regarding Google keyword advertising litigation:
c|net News; Washington Post
(you are sure to get a pop-up ad visiting this site).
In Coca-Cola Co. v. Purdy, the 8th Circuit heard a consolidated appeal from a man who may be the craftiest cybersquatter to ever make it into a U.S. Appeals Court decision. Under the facts, William Purdy, a staunch anti-abortionist, registered multiple domain names which contained plaintiffs' registered trademarks, such as "drinkCoke.org," "my-WashingtonPost," and "myPepsi.org". Here, defendant raised First Amendment arguments in his appeal of the injunctive relief granted to corporate plaintiffs.
Reading the opinion, it seems that Purdy was not motivated by money, as most classic cybersquatters are. Instead, his domain name antics were spurred on by strong anti-abortion beliefs.
Unfortunately for Purdy, the 8th Circuit did not find his First Amendment arguments compelling. They likened his guerrilla tactics to "the information superhighway equivalent of posting a large sign bearing a McDonald's logo before a freeway exit for the purpose of diverting unwitting travelers to the site of an antiabortion rally."
Though Purdy's arguments failed, you have to give him credit for his underdog efforts. His moral/political convictions have led him to squaring off against some of the most powerful corporate entities in the U.S.
From the plaintiffs' point of view, Purdy's unauthorized use of corporate IP is just as damaging as a company hate site, such as "cokesucks.com." Interestingly, Coke was able to come up with concrete evidence of actual confusion caused by Purdy's misleading domain:
"Coca- Cola received an email from the visitor to that site on July 7, 2002. He reported that he had been "checking out your web pages and I came by [drinkcoke.org]." He complained that the website had Coca-Cola's logo "all over it" and the content [pictures of aborted fetuses] had shocked him. "I am a Coke drinker myself, a fan i may say . . . I always have some in the fridge and I was drinking [one] right now! but I got to admit, I cant finish it after i seen this page".
Although this email sounds a bit contrived (like it could've been sent by a friend of a Coke employee), as a reader of user feedback at a large web site, I can attest to the unusual comments people often make in their email.Posted by AZ on September 1, 2004 10:38 AM