2002 September 26 Links

(entry last updated: 2002-09-26 17:59:02)

The New York Times reviews and discusses Windows Media Player.

Mike Godwin discusses the Right to Tinker. Salon discusses the mixed message of software piracy enforcement. EETimes has an article on plugging the analog hole that’ll chill you.

And, like, ohmigod! Britney Spears wants me to stop sharing files!

(8 items listed below)

  • A surprisingly balanced look at the Windows Media Player from a paper that has generally been a Microsoft apologist. The closing paragraph, however, portends trouble:

    Does the world really want Microsoft dictating multimedia formats to the Internet and entertainment industries? In the end, I suspect Media Player 9’s success may depend less on its many innovations than on the public’s willingness to surrender so much gatekeeping authority to the Windows juggernaut.

  • Ernest Miller agrees with me that the Clean Flicks case represents an important new area in this debate. Here’s his latest contribution to the discussion.

  • The RIAA “education” program is starting up soon, according to ZDNet. Should be truly heart-wrenching to hear the plight of Madonna, P. Diddy and Britney.

  • And the CEA’s Gary Shapiro would like to suggest that Britney et al. are missing the point. The ZDNet version includes comments from readers.

  • A Findlaw editorial tries to disentangle copyright and reverse-engineering restrictions in shrinkwrap licenses.

  • Mike Godwin of the Center for Democracy and Technology discusses the right to tinker at Law.com

  • Salon has an article on the fact that, while piracy may not be good, keeping people from using your software keeps you from being about to exploit the power of the network effect. Slashdot discusses this alongside the above announcement of the RIAA PR campaign.

  • An article from EETimes on trying to stuff a genie back into a bottle: plugging the analog hole. Now that’s what I call alienation!

2002 September 25 Links

(entry last updated: 2002-09-25 15:51:18)

Sorry – it’s going to be another hit-and-run kind of day for me. There are a couple things brewing, though, that merit mention.

The New York Times has a couple of things, including an article saying that service-for-fee music delivery may be turning the corner. Also Congressional hearings into broadcasting start up today.

Collusion is claimed in the video on demand business. And more effort via music giveaways to get people into the Microsoft DRM camp. And, in this article from Yahoo!, recording artists ask for help from the CA legislature.

And, tragically, the copyright on silence is that much closer to (legal) reality.

Yow! Ernest Miller gets cited in a Salon article on DVD commentary tracks.

(8 items listed below)

2002 September 24 Links

(entry last updated: 2002-09-24 17:17:31)

(Sorry: this is the first day I’ve been in the office that I haven’t even had time to "make the rounds" of my usual sites, so I’m mooching off others’ good work today. I’ll try to do better tomorrow.)

I gotta run, but The Register has a chilling article on a recent Microsoft DRM ploy.

Ernest Miller adds to the distressing news of the day with this alert on the apparent capitulation of the Internet archive to Scientology’s lawyers.

And, horror of horrors <G> – I have to go to Copyfight to find out about something scheduled in my own backyard.

I missed the article in yesterday’s Times naming the winner in the digital distribution war…..

(3 items listed below)

2002 September 23 Links

(entry last updated: 2002-09-23 18:13:14)

Hoo-bay! Whatever it is that’s going around the MIT campus, it laid me out good. And I’m still not feeling too great.

KaZaA is back at it; and Fortune profiles the Rolling Stones’ business model, while the New York Times looks an a more unconventional model. Also, the Janis Ian interview is at Slashdot.

And I second Donna: read Ernest Miller’s take on the Digital Hollywood conference, taking place now.

(7 items listed below)

2002 September 20 Links

(entry last updated: 2002-09-20 19:00:39)

Wired News has a sharp look at the Tauzin digital TV bill. And Robert Cringeley is trying to scare the hell out of you!

And, after reading something on the Doc Searls weblog, I decided to look up the entire bit.

(2 items listed below)

  • Brad King describes the controversies around Billy Tauzin‘s new, albeit long-expected, bill.

  • Robert Cringeley’s latest column described BayTSP and their role in DMCA enforcement by sniffing and snooping the Internet.

    Now we get to the part I find especially interesting, and where I think there is a lot of confusion among users. This has to do with how BayTSP finds out who is distributing kiddy porn or pirated music files. If you think your activities on the Internet are anonymous, you are wrong. When BayTSP finds an IP address that appears to be the source of child pornography or pirated music or video files, under the DMCA, it can subpoena ISP logs. These logs can directly connect even dynamic IP addresses to user accounts, making it clear very quickly who owns the offending account. Every ISP keeps these http logs, and even products for so-called anonymous surfing aren’t effective in circumventing the technique.

    “We have 100 percent coverage of peer-to-peer file sharing,” Ishikawa claims. “If you are illegally sharing copyrighted materials, we know who you are.”

    The Slashdot discussion points out how to use whois, but there’s a lot of commentary on just how to beat this.

2002 September 19 Links

(entry last updated: 2002-09-19 18:09:08)

Everything you wanted to know about the Bush initiative for securing the Internet is here. As a “draft,” we get to comment (Slashdot starts here), but there’s a lot to read here first.

The Lessig profile in Wired gets the Slashdot treatment. So does the New York Times editorial I mentioned yesterday.

And Bon Jovi gets the message that, if you want to sell a CD, you need to offer something unique to the medium?!? The New York Times has a good article on the Clean Flicks controversies in the movie industry, framing it as a larger question of control and creativity in the digital realm. And I missed an earlier article that points out another limitation of Berman-Coble.

Billy Tauzin is back at it. And I missed checking the latest EB until today.

(5 items listed below)

  • Wired News reports that Bon Jovi, probably among the least likely musicians to expect widespread piracy of his music, is in the vanguard of a new way to maintain CD sales – giving each CD a unique code number that, when registered online, gives the buyer privileges unavailable otherwise. This strategy is a reflection of a host of online articles over the last year suggesting something of this sort to sustain CD sales; interesting that this is the first.

  • The New York Times picks up on the CleanFlicks controversy. It’s actually a pretty thorough write-up; and raises some important questions about the issue of control and alienation for creative people (I really need to get that essay written!) in all sorts of domains. This may be the next big area of controversy in digital IP, and may help to shape the balance between the current legal theories of copyright & derivative work, trademarks and creativity in the digital domain.

  • The webcasting record keeping specifications for CARP have been posted.

  • Hal Plotkin points out another problem with Berman-Coble – would you invest in a P2P business plan that is susceptible to this kind of penalty? He gives a great comparison:

    It’s as if someone had proposed a law in 1965 to make it legal for anyone to burst into offices and burn IBM punch cards because their use was putting stenographers out of business. You can imagine the wonders that would have done for the economy. Unfortunately, regardless of how silly it may sound, the Berman-Coble proposal is being taken seriously, particularly by skittish venture capitalists who’ve seen Congress pass bad laws before (free stock options, anyone?) when enough money got behind them.

  • Beth Stackpole cites the difficulties confronting, for example, DVD designers when the copyright community gets involved. A comprehensive look at the Hollings bill, etc. for the electronic design community. There’s also a look at MPEG-4 in the same issue of Electronic Business

2002 September 18 Links

(entry last updated: 2002-09-18 16:30:42)

Wired promises to make the link to the Lessig/Eldred profile in their October issue available today, but it hasn’t happened yet. Update: Ah, now it has!

A couple of thrusts in the consumer arena. I find that I find the phrase “copyright community” a better indicator than “content community.” In my mind, it tends to weaken their position when it’s phrased that way.

And I’m sure that Linus Torvalds never could have predicted the content of one of today’s New York Times editorials!

(6 items listed below)

  • John Borland reports that the CEO of the Consumer Electronics Association is tired of the rhetorical position of the copyright community and is ready to start speaking out. The TalkBacks in the ZDNet version of the article give a sense of the user response.

  • In what I personally hope will be the beginning of the end of copy protected CDs, the IFPI is proposing a label to distinguish fully Red Book compliant CDs from the copy protected ones.

  • To add to the discussion of recording industry practices and contracts, here’s an article from Salon dissecting the American Idol contracts. I really like this alleged quote from the contract:

    I hereby grant to Producer the unconditional right throughout the universe in perpetuity to use, simulate or portray (and to authorize others to do so) or to refrain from using, simulating or portraying, my name, likeness (whether photographic or otherwise), voice, singing voice, personality, personal identification or personal experiences, my life story, biographical data, incidents, situations and events…. [emphasis added]

  • And, at this point one can only speculate who ends up controlling what when Microsoft offers to sell access to a DRM server

    “But, of course, any technology can be twisted and misdirected. Anyone proclaiming to protect assets for others is scary. We typically feel safer guarding our own chicken coop,” DeBona said. “We will evaluate Microsoft’s DRM offering, with extra attention paid to security. A healthy dose of skepticism never hurts.”

  • Brad King continues to discuss the efforts to control digitial media by the copyright community.

  • I’ve been having an e-mail discussion on the subject of compulsory licensing as a solution to the copyright community’s objection to the copyring opportunities implicit in digital distribution. While we agree that the historical objection to this scheme by the RIAA is no surprise, this reader wonders why the consumer side hasn’t seized upon this approach in its strategies.

    While hearings on the subject were held last year, the political view was almost universally dismissive. This year, KaZaA and Verizon floated a plan to negotiate these licenses (analyzed here), but I haven’t heard anything since. Note that the RIAA has asked for these licenses themselved, without much luck either.

    Personally, I believe that the reason that compulsory licensing is not terribly popular with the user advicates is that it is dangerously similar to “theft,” at least in the face of the current market-is-all paradigm (see the Findlaw assessment cited above). Even though it’s at the heart of every radio station, commercial or otherwise, they don’t advertise the idea either.

2002 September 17 Links

(entry last updated: 2002-09-17 17:22:09)

A propos of an e-mail from someone in the business of digital distribution, there’s a new article on record industry reform from yesterday’s USA Today. And, record companies are taking extreme measures to keep review copies of CDs off the street… and the Internet

The The Register is shocked, shocked to find that the White House likes Palladium!

(3 items listed below)

  • USA Today has an article on the changes brewing in recording industry contracts. Some more numbers to add to my economics of record (oop! – I mean CD) production lecture!

  • New Scientist reports that review copies of pending CDs are now being shipped to critics and other reviewers in sealed CD players to limit pre-release!

  • The White House Cybersecurity Initiative (a, b, c, all from PoliTech) has gotten a review from Thomas C. Greene. Surprise, surprise – TCPA gets a thumbs-up.

2002 September 16 Links

(entry last updated: 2002-09-16 18:40:24)

Ernest Miller’s commentary on Larry Lessig’s Red Herring article on Palladium is out. It’s comprehensive and thorough in its challenges to Larry’s take on Palladium, and it ultimately points to one of the implicit dangers in suggesting that Palladium can be domesticated – lulling users into a false sense of security.

TCS does it again – publishes an article guaranteed to p*ss me off!

Larry’s most recent weblog posting has to do with a discussion with Ted Shelton of Borland, who posits a computer program that writes novels and asks about the copyright implications. While I have a certain take on it (posted yesterday), this article from today’s New York Times cannot go unremarked!

(2 items listed below)

  • LawMeme’s Ernest Miller comments on the Lessig Red Herring article on Palladium. With lots of links and thoroughly covering the discussion, Ernest ultimately concludes that the greatest risk inherent in articles like Larry’s is that they may lull the user into accepting technologies like Palladium without realizing just how thoroughly they revise the architecture of freedom in computing.
  • If you want to read a truly effective screed against the GPL, see this article at Tech Central Station from David Henderson. The rhetorical instruments used are so noxious, I expect to see this picked up by Microsoft (assuming it wasn’t already subsidized by them!) See the criminally incorrect Sun Solaris example that is used in the text to see what I mean. Update: Ernest Miller got beyond mad and decided to dissect the article here, while GrepLaw suggests stronger remedies.

2002 September 15 Links

(entry last updated: 2002-09-15 14:41:17)

So far, the best "link" I can suggest is only available in hardcopy – Steven Levy profiles Larry Lessig and the Eldred case in the October edition of Wired. I remember Steven as spending a lot of time around Larry during ILaw, it’s clear from this article that it was no accident. Moreover, the article really does capture a lot of what Larry’s like in person, and as a lecturer. Well worth a read now, or wait until it’s available online next month.

There is an interesting article at ZDNet on the Morpheus case that starts to show the outlines of the pending arguments. And it looks like Larry is continuing (with Ted Shelton – his permalinks are a mess, so look for his Sept 14 posting) the earlier discussion of his copyright proposal (here and subsequent.) Interestingly, Dave Winer is monitoring, but not discussing – yet anyway. More interestingly, Ted raises a different concept in his argument with Larry that touches on a problem I’m thinking about (see below).

(4 items listed below)

  • John Borland writes about the KaZaA/Morpheus case, with particular attention paid to the current struggle to define the issues at contention. A notable quote:

    “Owning copyrights doesn’t give you the right to dictate to people how to build their products,” said Fred von Lohmann, an Electronic Frontier Foundation attorney who is representing Streamcast. “If that were the rule, it would make Microsoft, with Internet Explorer and Outlook, an infringer. It would make virtually every software company liable for copyright infringement.”

    We’ll see.

  • BusinessWeek Europe has a great article on the Verizon/RIAA dustup over consumer privacy and the DMCA

    The good news is that, unlike past legal battles, the RIAA is picking on someone its own size. The defendant isn’t some underfunded, inexperienced dot-com but a telecommunications giant. And the outcome will affect all ISPs, from AOL (AOL) and EarthLink (ELNK) to SBC (SBC) and AT&T (T). That means sharp lawyers will be fighting hard to ensure that copyright holders — or anyone else — aren’t given access to identifying information without a judge’s approval.

  • And it’s probably worth bookmarking this link to the BusinessWeek ongoing collection of their articles on Digital Music’s Future
  • Ted Shelton of Borland is arguing with Larry Lessig about copyright and software, following up on the rather nasty brouhaha that Dave Winer got going a couple of weeks ago. While I think I agree with Larry’s current rejoinder, Ted’s blog has the following argument to support copyright protection in the absence of the release of source code (a “transparent copy”).

    If oblique creativity does not receive the same protection as transparent creativity it seems to me that we will be creating an enormous problem in determining just what is an oblique creation, and what is a transparent one. The other example in my earlier note is an interesting one — should the romance novels generated by an automatic novel writing software receive copyright protection if I do not submit my software to the escrow plan? What about special effects in movies — should Pixar be required to escrow their animation software for Toy Story to recieve copyright protection? How about the musician that programs a sound into a synthesizer — should the musician be compelled to escrow the specifics of this wave form in order to receive protection for the song? [emphasis added]

    Ted is touching upon the issue that I raised parenthetically a couple of days ago. Ted is conflating the expression, which is copyrightable, and the tools employed to create the expression (or, alternatively, the tools used to convert the expression into an experience). Ordinarily, one would assume that protection of a tool would be the domain of patent. But, because software patents are only a recent construct, software has been protected by copyright instead.

    Ted’s romance novel example seems to argue that Larry’s approach says that a robotically-created novel would only be copyrighted if the plans for the robot were part of the escrow. I fail to see this point. The expression, in this case the novel, is immediately accessible without the intermediation of the robot. Rather, the robot is only needed to reproduce the novel in a rather difficult way; Xerox offers a much simpler mechanism.

    But, note that Ted’s example introduces the same issue that I mentioned earlier. While I talked about the alienation of the user from the process of converting an expression into an experience, Ted is describing a process where he is alienating the artist from the process of creating the expression – the romance novel.

    And this may be why Dave Winer and Ted Shelton get so upset about the idea of releasing source code: programmers are alienated from the process of creating the expression that they wish to copyright. The programmer doesn’t really create the thing that the user buys; a compiler, plus a packager (e.g. InstallShield), plus a bunch of other tools do the actual work of producing the expression – the programmer conducts and leads this process and knows what he wants to get, but the actual, formal expression is the product of other instruments, many outside of the programmer’s control. A new compiler with new algorithms, or a new compiler for a new architecture, will take the same set of source code and produce a completely different object code. That object code may generate the experience that the programmer wanted, but it may also produce something completely different – ranging from a hung computer on up.

    And therefore the programmer’s only way to retain power over his creation is to claim exclusive ownership of the meta-instrument of creation that he makes. As far as he is concerned, the source code is akin to a record-playback CNC tape of Auguste Rodin carving The Kiss from a block of marble. Once you have the tape, you have the process of creation, as well as the expressive object. On the other hand, if you start with a piece of granite, it might not cut properly or, worse, it will look wrong and the sculptor has no opportunity to rework it to get the effect he wants.

    And now we maybe begin to get to the heart of the fight over copyright and software. Frankly, I don’t think the argument about source code has to do with the next piece of gamer software – at least, I could care less. But I really care to have access to the source code that alienates me from my created objects – papers, presentations, drawings. Because, by using Microsoft Word on top of Windows XP, I no longer control the process of creation – Word and Windows alienate me from my work, just as the compiler alienates the authors of Word from their product. And what we see here is that we’re both struggling to retain control — to own — the things we have created.