Way back in the day when the Cartel was celebrating its crushing of Napster I pointed out that this was rather like smashing a blob of mercury with a hammer. File trading existed long before Napster and destroying that one entity did nothing to stem the tide of file sharing. Users scattered and multiplied. Now the Cartel seeks to repeat history, its sledge poised above Kazaa.
I probably won't blog this extensively - there are many sites providing blow-by-blow accounts of the trial in Australia. A few salient points:
Kazaa owners apparently will be revealed in court. The company has tried to use the haven of Vanuatu but the Cartel claim to have penetrated that shell. This is mostly counting coup - I doubt that the owners can be held personally liable and will simply walk away from the corporate wreckage. It does illustrate the persistence of the Cartel, though, and their international reach. If you plan to confront them in a big way you might as well do it above-board because they're going to hunt you down no matter what. Fine, let's get it on.
Kazaa are employing a Betamax defense, even though that doctrine is US precendent, not Australian. None of the stories I've read make clear how this notion of having non-infringing uses will play out with current Australian law and precedent.
Kazaa may be in some court logic trouble because of an anti-child pornography stance. A Syndey story notes that the company's Web site contained language warning users that they would be thrown off the network if they were found to be trading in kiddie porn. Fair enough, but why (the Cartel's lawyers wisely ask) can Kazaa take a stand against kiddie porn but not music trading?
Ironically, one of the charges being leveled by the Cartel lawyers is that Kazaa set out to deliberately harm it by encouraging file trading. This is a fine Catch-22, since the Cartel initially refuses to license content and then claims deliberate harm.
Everyone seems to agree that the trial verdict won't be rendered until sometime next year and that the verdict will be appealed no matter which way it goes. Kazaa is history if it loses, of course. But I can confidently predict, just as I did five years ago, that the end result will be no net change in file sharing. The Cartel needs to wise up and start owning this business instead of trying to decimate it.
[I haven't been able to second-source this yet, so treat with some skepticism for a bit.]
Cyberlaw is reporting on a case in which The Internet Archive (TIA) was used as an evidentiary source. On the surface this seems like a trivial matter, but questions of what will be acceptable as evidence in a courtroom proceeding are in fact quite important.
Within the relatively recent past we've seen such changes as the discrediting of lie detectors and the admission of DNA evidence changing the face of court proceedings. The questions of what constitutes valid evidence for Web content are not even vaguely understood.
Take your typical Web page. First of all, we understand that it changes over time. The Wayback Machine recognizes this and provides time-sequenced information on pages.
However, we also know that customization (or "personalization") of pages is common. What you see on a given URL may not be what I see, even if we fetch it at essentially the same time.
Other changes within the Web are too ephemeral to be captured by an archive with potentially extensive delays in page revisits. Many sites (e.g. NTK) make a practice of snapping screen shots of amusing or embarrassing gaffes that make it out onto the Web. Other content that is seen by humans is not available to robot gatherers due to exclusion rules, login/subscription requirements, or other access constraints. Clearly TIA is not the end point for these kinds of problems.
Think about the problems of trying to prove that a defendant offered your copyrighted content for sale on eBay. What, exactly, would you be able to submit to the court in evidence to support your case? How would you defend yourself against such evidence, assuming you believed the evidence had been faked?
I have no good answers to these questions, but I'm betting we'll have to develop them pretty quickly.
[Disclaimer: I work for a company that makes a lot of money from, among other things, supplying systems used to produce evidentiary electronic messages, particularly emails, in court and regulatory cases. I am not speaking here or elsewhere as an employee of any organization. However, my experience in this field does lead me to be a little incredulous of the judges' assertions and acceptance of a TIA employee's affidavit as sufficient authentication, without any accompany documentation of the relevant storage and retrieval practices.]Posted by dr. wex on November 19, 2004 09:53 AM
I realize this is more formally politics than technology but these days all technology is politics and, having started to follow this story I'm unwilling to let it go.
In our last episode, I noted that the FCC's FUD regime had managed to scare a good number of television stations off from showing Saving Private Ryan. Today the NYTimes published a column by Frank Rich on the Private Ryan case and its implications.
Rich's op-ed notes hits several key points, including the fact that this is not just small-town stuff; stations in major markets like Boston, Detroit, Cleveland and Baltimore all cancelled. Rich labels this 'McCarthyism, "moral values" style' and I think he's precisely right. The media is hurtling down the slope of self-censorship and sacrificial lambs pretty much at the same speed it hurtled down the slope of blacklists and naming names forty years ago.
All this is in response to an absurdly tiny majority of complainers. See the BuzzMachine story on how three people managed to get the FCC to slap Fox with a $1.2 million fine.
Rich's column focuses to a significant degree on the relationship of the FCC's actions and the lack of a reality-based grounding for much of what the administration does. I am tempted to dance on the shores of the metaphorical Red Sea here, as I believe that Fox is reaping what it has sown. Even the venerable Times is guilty of complicity in the eradication of truth from the American public consciousness in the past four years, though it seems to have a capacity for self-examination and post-facto realization of error that Fox clearly lacks.
However, despite the visceral satisfaction I'd get from doing that dance, the molding of the debate and public consciousness is far too important a business to be left to petty vengeance. We're all going to drown in this sea, I fear.Posted by dr. wex on November 18, 2004 08:29 AM
Copyfight, among others, has been tracking the varied zigs and zags of TiVO as that company tries to navigate the shark-infested waters of modern electronics. OK, those are Cartel lawyers, not sharks, but who can tell the difference?
Now it appears that TiVo has sold out entirely, but not to the Cartel. Instead, they've climbed into bed with a coalition of 30 big advertisers to implement a "feature" (and I use that word advisedly) that takes away your ability to skip ads. Instead of a simple forward jump, you get to have your commercials overlaid with... wait for it... commercials. But they're TiVo's commercials. Soooo much better.
According to the LA Times story linked above, these "tiverts" as I think I'll call them will pop up during fast-forwards, offering contest entries, giveaways or links to other ads. And of course, this is accompanied by a vast giveaway (well, technically it's probably a sale) of your personal information to the advertisers.
Even if you don't participate in this effort to get you to mainline commercialism, you'll still be part of an intensive "market research" effort in which TiVo will examine your viewing habits on a second-by-second basis (no, I'm not making that up) and then sell THAT data.
"The message we really want to get across," says Davina Kent, TiVo's advertising and research sales manager, "is that we now have a dedicated road map for advertising." It's completely unclear to me whether they have a dedicated roadmap for customer satisfaction.
Heavy commentary in lots of places, such as PVRBlog, where readers seem divided. Some don't seem to care, as long as they get to keep fast-forwarding. Some see it as a fine way for the company to make money. Most seem resigned to this being the start of a long, dark slippery slope.
If you're the adventurous type, you might want to consider building yourself a MythTV. This is a sufficiently annoying and labor-intensive process that few are likely to do it, which is a damned shame. I'd pay for someone to put one together for me but the hassle level is high enough I probably won't do it myself.Posted by dr. wex on November 17, 2004 01:03 PM
Senator Patrick Leahy (D-Vermont) filed this amicus curiae brief in U.S. v. Councilman, pending before an en banc panel of the First Circuit U.S. Court of Appeals. According to the press release issued by Leahy's office, filing an amicus brief is an uncommon move for active members of the Senate.
Relevant facts: Defendant owned a book company that extended its corporate email service to other book dealers as a subscription. Defendant then directed its "employees to write computer code to intercept and copy all incoming communications from Amazon.com to subscriber dealers." These intercepted emails were routinely read by defendant in order to gain a commercial advantage.
This is the second time the Court will hear this email case, which has large privacy implications. In a now-vacated June 2004 opinion, it denied the Government's appeal of the dismissal of charges against defendant for violation of the Wiretap Act (18 U.S.C. section 2510-2522) because there was no "intercept" of a communication within the meaning of the Act.
One of the main issues on rehearing is "Whether the conduct at issue in this case could have been additionally, or alternatively, prosecuted under the Stored Communications Act?" According to Leahy's brief, the case should not be prosecuted under the SCA, because it contains a lesser standard for electronic communication interception than the Electronic Communications Privacy Act of 1986 (ECPA), a law that Leahy helped pass which amended the Wiretap Act.
According to the EPCA's legislative history, the law was enacted to broadly protect electronic communications (originally telephone conversations) from unwarranted government intrusion. Unfotrunately, the ECPA was enacted before the advent of email, and in its current form, the law does not protect the many stages of temporary storage and relay that most email encounters during a routine transmission. If the EPCA's Title III protection against intrusion is not construed broadly to cover email (which the Legislature presumably intended), email privacy would be negatively impacted, as law enforcement and other parties could indiscriminately snoop on electronic mail messages, provided they intercept the transmissions at points outside of Title III's protection.
That's the basic argument, anyway. If you're interested and live close to Boston, oral argument is scheduled for 3:00 p.m. on December 8, 2004 in the en banc courtroom in the John Joseph Moakley United States Courthouse. Don't bring your camera phone.Posted by AZ on November 16, 2004 11:47 AM
MIT COMMUNICATIONS FORUM
COPYRIGHT WARS: FIRST PRINCIPLES
THURSDAY, NOV. 18, 2004
E25-111 (MIT Medical Building)
Directions to most places at MIT can be found at whereis.mit.edu
In August, the Congressional Budge Office released a report titled "Copyright Issues in Digital Media." The report defined copyright as an instrument "for allocating creative resources," not an "absolute, inviolable set of rights to which either creators or consumers are entitled." But how do such apparently even-handed principles work out in practice? And what are the constitutional and intellectual principles that lie behind the idea of copyright? What lessons for current arguments over the downloading of music or films are embedded in the history of copyright? How is patent law different from copyright law? How are libraries and educational institutions more generally affected by copyright regulations and practices? This Forum will consider such questions as part of its ongoing conversation about creativity, ownership and the powers of technology.
Donna L. Ferullo is director of the Purdue University Copyright Office, which was established in 2000 and provides advice and guidance to faculty and staff on copyright issues. Prior to joining Purdue University, Ferullo had a solo law practice in Boston specializing in copyright law.
Wendy Gordon is the Paul J. Liacos Scholar-in-Law at the Boston University School of Law where she specializes in issues of intellectual property. She is the author of several articles on copyright and intellectual property and is working on a book tentatively titled The Ethics and Economics of Intellectual Property.
Michael Meurer is a professor at the Boston University School of Law where he teaches courses on patents, intellectual property, and public policy toward the high-tech industry.
[I take no responsibility for, yet great glee in, the fact that they use "copyright wars" to describe the situation. I also work sufficiently far north that I won't be able to attend this event, much to my annoyance.]Posted by dr. wex on November 15, 2004 02:27 PM
As I noted a couple months ago, I've been sort of skimming the Howard Stern show lately. He has been effectively driven off the broadcast airwaves by, among other things, what he claims as the capricious and arbitrary undocumented censorship regime of the FCC.
Sounds like the whacked ravings of an attention-grabbing shock jock, right?
Weeeell, yes, except... now, CNN is reporting that more than 20 ABC affiliates have cancelled their annual showings of the movie Saving Private Ryan in fear of FCC sanctions. Although the Oscar-winning movie has been aired uncut twice before, stations are nervous.
Adding to this is the FCC's usual shell game. Here's how it works: a broadcaster calls up and says "Will we get in trouble for showing this?" The FCC coyly declines to respond, saying it doesn't monitor, only reacts to complaints. So the broadcaster is left in a Catch-22, unable to know in advance if they're violating rules, if someone will complain, if the FCC will take action on that complaint. The FCC gets to claim it's not censoring, meanwhile creating an atmosphere of pervasive fear and uncertainty.
Orwell would be proud.Posted by dr. wex on November 11, 2004 11:12 AM
These Cartel members and field soldiers desperately want the Supreme Court to "clarify" or outright reverse the ruling. On the other side, the EFF is arguing that Congress is already wrestling with the issue and so the Court should not review.
Both sides' strategies have risks. The composition of the Court that might review this case (assuming cert is granted) is open. With one Justice already ill and other retirements possibly pending it's not at all clear how a recomposed Court would rule. IP issues are unlikely to loom large at any confirmation hearings, which I expect to turn much more on social issues.
Contrariwise, Congress is still no friend of the public domain and the next session may lead to the production of even more insane legislation than the current proposals. Depending on Congress to review DMCA and possibly try to legislate Betamax doctrine may end up with a much worse regime than we have today.Posted by dr. wex on November 9, 2004 10:09 AM