2002 July 31 Links

(entry last updated: 2002-07-31 23:11:32)

A call to arms from Siva Vaidhyanathan; HP acts to “Felten” SnoSoft

And it looks like Charles Sims is in a snit over Siva’s piece. Donna has posted a set of questions – here’s my first pass at thinking it out:

Viadhyanathan, Sims and Fair Use

An odd sort of argument has arisen around the posting of Siva Viadhyanathan’s article in the Chronicle of Higher Education. Charles Sims, the lawyer who represented the MPAA et al. in the 2600 suit has suggested that Declan’s posting was tacit support for a position that he says is completely unfounded. In particular, Sims argues that the DMCA is all about access. not fair use – in fact, all the fair use that one had in 1976 (when fair use was enshrined in law – before then it was a construct of case law) is still available.

It’s an interesting point, and is defendable only if you accept a key assumption: the sale of a copyrighted work includes an inferred agreement to access the copyrighted content in strict accordance with the technologies envisioned by the seller of the work at the time of the transaction. This is an interesting extension of the list of exclusive rights of copyright:

  • Copying (granted 1790);
  • Distribution (granted 1790);
  • Derivative works (franted 1870 and 1909);
  • Public performance (granted 1856 and 1897);
  • Public display (granted 1976);
  • Attribution and integrity (granted 1990);
  • Fixation and trafficking in sound recordings and music videos (granted 1994);
  • Technological protection measures (granted 1998);
  • Copyright management information (granted 1998);
  • From The Illustrated History of Copyright; Edward Samuels; St. Martin’s Press; New York, NY; 2000

By my reading (and, warning, I am “unencumbered by a formal legal education”!), I don’t quite see the right that Sims asserts in this list. I understand the technological protection measures, but I am surprised that this can be essentially turned onto its head, suggesting that the acquisition of a copyrighted good with an embedded protection measure implies that the buyer has agreed only to use specific devices/technologies to access copyrighted works.

On the other hand, I suppose that one could credibly make this argument – after all, Mr. Sims has done so, quite successfully. But, note what it implies – a new limit on creativity has been erected. If we believe Mr. Sims, the government has given copyright holders the right to prescribe the application of technology by others.

A huge leap has happened, if you believe Mr. Sims. The list above is a list of what one can exclusively do if one is the holder of a copyright. Mr. Sims is asserting that the DMCA has added an exclusive right on how one uses copyrighted material. This is a terribly dangerous transition – what is easy for a government or a court to understand, to regulate, to identify. Regulation of how seems to be a toxic notion of control when creativity is at stake. Consider, for example, if it had been against the law to interfere with the motion of a turntable – “scratching” and other roots of hip-hop would have been illegal! Or, suppose the MPAA decided that TVs shouldn’t have hue, tint or contrast control because it changed the image on the screen.

At ILaw this year, Larry Lessig showed those of us who have never bought an eBook how each one comes with a list of what one can and cannot do with an eBook – copy text, print pages, allow the use of a voice synthesis reading program, etc. His lecture on this topic culminated with him showing the list of restrictions on The Future of Ideas – Larry cannot copy, print or “read aloud” his own book! We all laughed – it was an illustration of how preposterous these kind of technological constraints can get.

But, it’s not just preposterous – it is also an incredibly arrogant attitude for a publisher to take. How dare they assert that they have the right to tell me how to use their product! How dare they choose to constrain my ability to do, to use, to create.

And, worse, how can a lawmaker, whose Constitutional imperative is “To promote the Progress of Science and useful Arts,” assert that Progress can, and should be, constrained by the owner of copyrighted content.

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2002 July 30 Links

(entry last updated: 2002-07-30 16:40:21)

It’s going to be a busy day for me. But the article in today’s Boston Globe should not go unremarked.

Geoff Edgers reports in today’s Boston Globe [PDF] that market economics even seem to effect the record industry.

The most remarkable part of this article is the response of the RIAA to the fact that record stores are reducing their CD prices to get customers into the store. A Globe chart (not given online) shows that the average suggested retail price of CDs was $21.50 in 1983 (the introduction of the CD), dropping rather steadily to $12.50 in 1990 and trending slowly back up to $14.02 in 2000 (sourced from the RIAA). The fact that local stores are discovering that they need to offer product at $9.99 to get people into stores, however, leads the RIAA to this position:

But Hilary Rosen, chief executive officer of the RIAA, said that it’s unfair to expect record companies to cut costs. She says people who steal music by downloading soundfiles or burning discs illegally are responsible for sales drops.

”In the age of $150 sneakers, $12 movie prices and $40 video games, I’m just unsympathetic,” Rosen says. ”At any price in the $10 to $18 range, CDs are a great value.”

It would be interesting to track the real prices of the products that she cites, particularly if one were to consider the trends in quality and features of those products along with their prices.

But, there’s another feature of her position that screams for consideration – "it’s unfair to expect record companies to cut costs." Really!?! Every other industry looks upon cost-cutting as the standard – a day to day practice. There are plenty of industries where cost saving – continuous improvement – is the centerpiece of operations. Yet the RIAA, confronted with technological challenges that have been commonplace since the invention of the player piano, refuses to acknowledge that cost might have something to do with their declining performance in the face of these challenges. Rather than exploring new business models, it’s all about modifying law and regulations within the industry, and calling for dramatic changes in industries outside of their traditional purview – computer technology.

And worse, they’ve managed to convince a large fraction of the population that their position is reasonable. For anyone who’s read Courtney Does the Math, and looks at  [PDF] the implications of her numbers has to ask about the costs of promotion – and wonder, for example, why killing webcasting seems to be the objective of the RIAA.

As far as I can see, it comes down to a simple fact – the record companies are control freaks, pure and simple. Somehow, they have managed (along with the movie industry) to convince us that their monopoly control should be perfect, unassailable by advancing technology and guaranteed by the state. And worse, our government representatives see that their role is to employ the instruments of public policy to maintain their control.

It’s time for a change. And it’s up to us to bring it about.

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2002 July 29 Links

(entry last updated: 2002-07-29 21:57:29)

I can’t sleep; and now that I’ve started today’s New York Times, it might have been a message. In the words of Charlie Brown, “Augh!!.” Declan also has a big piece on this on CNet which paints a dire picture. Basically, it looks like Sen. Joseph Biden (D-Delaware) may be plotting an end-run around the opponents of the CBDTPA (See S.2395 and amendments at Thomas.)

Although it does get curiouser and curiouser as the day progresses. At 2:00PM I added the LawMeme link below. Now, after working through Donna Wentworth’s bit (via e-mail) I came across this interesting article posted at The Register in April.

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  • Amy Harmon has a depressing article in today’s Times, not only suggesting that Congress is starting to buy the line of the linkes of Hollings and Berman, but also that Biden’s draft bill that started as a bill updating penalties for counterfeiting via hologram copying is being modified to give the movie industries what they want via a set of backdoor modification. More people to write letters to. TODAY if Declan’s piece is right. (The ZDNet version with Talkbacks) Update: A Slashdot discussion has started up.

    Here’s a report from Biden’s office on intellectual property. It not only starts with the usual conflation of the notion of intellectual property and property, but it also seems to swallow, hook-line-and-sinker, the preposterous "losses" due to piracy flung around by the BSA, MPAA and RIAA.

    Update: The folks over at LawMeme have a less contentious interpretation of the amended Biden stuff – although they’re also soliciting sharper interpretations from their audience..

  • The infamous Hiawatha Bray does his usual strange thing in today’s column in the Boston Globe. While ultimately producing an ambivalent conclusion about a controversial subject, he still manages to inject enough inflammatory language to upset just about everyone with a real opinion about Berman-Coble.
  • The Times also has an article on the Forgent claims to ownership of a patent on JPEG.
  • The Register describes a proposed bill called the “Internet Radio Fairness Act” that changes the rate structure for webcasting, but I can’t find it in Thomas yet.
  • eWeek discusses the growing concern over Palladium.

2002 July 28 Links

(entry last updated: 2002-07-28 21:37:37)

Taking a break from packing books.

Two good articles in the New York Times today. One is an interview with Shawn Fanning; the other an op-ed piece on AOL/Time-Warner. Some good observations over at Rolling Stone, and Dan Gillmor really lets it rip. Illiad does too.

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  • An interview with Shawn Fanning looks backward, and forward.
  • A discussion of the AOL/Time-Warner mess includes an interesting set of observations about the music industry and the internet.

  • An article at Rolling Stone points out that, even with organizations like Overseer trying to muck up P2P, the community is stronger – and getting more angry every day.
  • Dan Gillmor just gets more and more articulate about what he hates abour Berman-Coble – he had as bad a week as I did:

    …These are discouraging times. In the past several months, the cartel has won battle after battle in courts and legislatures, with pathetic opposition from the one industry most threatened by this trend. With few exceptions, technology companies are turning into lapdogs for Hollywood and its allies.

    The last week has been especially bleak.

  • UserFriendly picks up the alternative interpretations of what Berman-Coble might mean.

2002 July 27 Links

(entry last updated: 2002-07-27 19:50:56)

Some more details on the Princeton-Yale lunacy at SFGate. It just gets stranger and stranger.

I find myself wondering if we’ll look back on this past week as the beginning of the end, or just a really awful low point in the annals of internet regulation. To read Doc Searls’ rundown of the week, I can’t tell which way things will go.

A nice article at Wired on the potential horrors of Berman-Coble. And more information on what’s the latest in the Peru-Microsoft game.

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2002 July 26 Links

(entry last updated: 2002-07-26 15:28:39)

What were these two universities thinking?!? (I wonder what MIT does? TPP doesn’t do anything like this, at least.) Yale certainly seems to have abused the information they got, but Princeton was out of it to suggest that privacy could be ensured with the system they set up. (A Slashdot discussion is underway, with a comment describing the MIT process – a little more carefully constructed procedure.)

A good Foxtrot cartoon today; mod-chipping in Australia gets a boost; Edelman v. ACLU is percolating through the newswires; Wired points out that Berman-Coble protects certain music systems. Doc Searls coins a word: dysnia

Hmmmm – Apparently (at least in The Register‘s Thomas Greene’s opinion), it has suddenly dawned on Valenti that Berman’s bill cuts both ways. Personally, I’m afraid that Thomas is wishing for something that isn’t there.

Dave Winer’s take is one that everyone should get behind! His ScriptingNews log has further points.

Dan Gillmor reports that HP has put the kibosh on Bruce Perens’ plan to openly violate the DMCA. Slashdot discussion

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2002 July 25 Links

(entry last updated: 2002-07-25 18:37:13)

I’m a little calmer today (this morning); although there must have been something going around yesterday. See Larry Lessig’s comments to the Open Source Convention yesterday to see what I mean – he really challenged the community to do something (Dan Gillmor’s blog entry, in particular, expresses the emotion of his talk; Doc Searls’ blog entry gives a different perspective). I see that there’s a collective weblog being tried – take a look.

And, yes, Larry’s already read "Melancholy Elephants." (See yesterday’s notes) And he, like I, suggest it to anyone interested in seeing an example of science fiction coming to life in one’s own time.

"Deep linking" receives a blow in Germany; ICANN is disucussed by Esther Dyson; RealNetworks announces Ogg Vobis support; kuro5hin reacts to the Berman initiative; an interesting take on ubiquitous computing by Bruce Sterling. The NYTimes has an article explaining why you need to look your name up on Google from time to time – plus what the Slashdot’s reference to the "panopticon" means <G> (I guess I’m just illiterate).

Update: I see that the Berkman Center’s Ben Edelman is suing (with the ACLU) for a declaratory judgement in re: Ben’s research and the DMCA – notably, his testing of the blocking strategies of N2H2. Declan McCullagh has a piece on it at CNet News – and here’s the Slashdot discussion; the LawMeme writeup. And Denise Howell has a great writeup with interesting links.

Declan’s had a busy day! Here’re his Politech links for the Berman/Coble P2P bill. And Thomas C. Greene isn’t letting up much today either! Matt Loney tells us what he thinks of the new UK copyright law; and Real formally announces Ogg Vobis support.

Note: I’m not sure if Wired.com is the target of a DDoS attack or if they’re just having server problems, but their site has been really difficult to access this week.

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2002 July 24 Links

(entry last updated: 2002-07-24 16:40:38)

This has got to stop! I can’t keep posting depressing news. But Declan McCullagh’s description of the upcoming bill from Berman is just disgusting! At least Bruce Perens has a way to protest. And so does Thomas Greene of The Register.

Looks like Yochai’s paper on commons-based production is coming out soon. BroadbandReport.com has another writeup of the recent DRM workshop at Commerce; and CNet gives Bruce Perens a spot to discuss Real’s Helix and open source.

One could imagine that Dan Gillmor has become a Larry Lessig groupie <G> – or maybe it’s just that he and Doc Searls are blogging the O’Reilly Open Source Conference.

And, completely beside the point, this New York Times article shows that, once again, the best of science fiction writers can look prescient from time to time. (I wonder when (if?) Larry Niven – author of "The Last Days of the Permanent Floating Riot Club" in A Hole In Space, 1974 – will let Rheingold know that he wrote/speculated about this phenomenon – years ago!)

Hmmm – maybe I should point Larry Lessig at "Melancholy Elephants" by Spider Robinson (in By Any Other Name – ISBN:0671319744) as he preps for his fall arguments in Eldred v. Ashcroft <G>!

And Denise Howell mentions Furdlog in an entry at Bag and Baggage! Thanks!

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2002 July 23 Links

(entry last updated: 2002-07-23 18:23:15)

Today’s news is another round of depressing repression; intense defence of a mistaken notion of intellectual property – two groups, the Competitive Enterprise Institute and the Institute for Policy Innovation are cited as arguing “that intellectual property rights should be defended as fiercely as traditional property rights.” *Sigh*

Two excellent links from Donna: a background article on the broadcast flag and a Perspectives piece from Jonathan Zittrain. And The Reg says that ISO is getting ready to kill the JPEG standard.

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2002 July 22 Links

(entry last updated: 2002-07-22 16:42:32)

Nice little brouhaha forming around a recent Edison Research study into downloading and CD purchases. Wired.com talks about Brazil’s Re:combo. The New York Times writes about Real throwing down a technological gauntlet.

And, in an article that should warm Charlie Nesson’s heart, the Times points out that maybe commerce isn’t the rationale for the Internet, after all. Dan Gillmor seems to be ready to give Palladium a chance?

The EFF has letters from Tauzin and Hollings asking FCC Chairman Powell to implement broadcast flags in digital transmissions without having to deal with that messy legislation stuff. (From the EFF’s Consensus at Lawyerpoint – entry 1, entry 2 blog)

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