November 30, 2002

2002 November 30 [3:29 am]

(entry last updated: 2002-11-30 03:31:32)

Jury selection begins in the ElcomSoft/Sklyarov case

And what would Hilary Rosen say about the Jewish Radio Project?

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November 29, 2002

2002 November 29 [4:20 am]

(entry last updated: 2002-11-29 08:16:09)

Sorry if this pisses you off, but David Rees’s latest “Get Your War On” comics summarize everything I could ever want to say about the rise of both Poindexter and Kissinger in this current administration (not to mention the spinelessness of the current Democratic “leadership.”). Support GYWO any way you can!

Peter Chenin’s speech has gotten a second set of online commentaries, although the WayNu one is still the most comprehensive.

The Chronicle of Higher Education highlights Ed Felten’s tinkering efforts.

More on the Napster sale to Roxio from Wired. And Paul Boutin’s piece from the dead tree issue discusses the rise of “sneakernet” Napster via CD-R & iPod.

The New York Times suggests that the biggest worry for musicians arising from online filesharing is the spread of incomplete or demo versions on songs.

The battle over use of open source in the government continues; Slashdot discussion.

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November 28, 2002

2002 November 28 [1:15 pm]

(entry last updated: 2002-11-28 13:15:58)

At least it’s not going to end up a porno portal!

Happy Thanksgiving from Paris!

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November 27, 2002

2002 November 27 [5:35 am]

(entry last updated: 2002-11-27 06:03:40)

The NYTimes describes the efforts students are making to retain access to online file sharing. The Times also has a small bit on the Universal proposal to refine royalty audits.

Donna had another jam-packed entry yesterday. ZDNet cites the public release of the MPEG-4 spec, with all licensing settled - will it be enough to set the next standard, or is WMA already too entrenched?

LawMeme points to a Law.com article on a SESAC victory - a look at the mechanics of royalty. Larry Lessig points to some work done at the Berkeley Center on Law and Technology on a question raised during the Eldred arguments - what about the 1976 Copyright extension?

And The Register has some nice coverage (and letters) of the RIAA/US Naval Academy fight.

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November 26, 2002

2002 November 26 [5:09 am]

(entry last updated: 2002-11-26 15:11:42)

Being away means that sometimes the best strategy is just to point to other’s good work. For example, Donna’s latest at Copyfight covers several important topics. The deconstruction of Peter Chernin’ speech is particularly nice. And it’ll be interesting to see how long the Globe link to Jonathan’s editorial lasts.

Equally interesting is John Ashcroft’s position on Internet surveillance, circa 1997. Wonder if he and Poindexter have talked this over?

Amy Harmon of the NYTimes writes up the plight of the Middies as their computers are confiscated so their instructors can look for pirated music files. The NYTimes also reports that Bertelsmann is turning CDNow over to Amazon to run. And an interesting conference at Columbia (The New Gatekeepers) that examines art and copying in the digital age is written up as well.

And, with the Christmas season upon us, the music industry’s practice of the re-release (special or otherwise) gets a surprisingly sharp look. And, in case you missed it, the new Shania Twain album has a couple of twists in music sales innovation.

I have to get ready for class, but a look at Slashdot reveal that the posting of DeCSS at the LiViD www site has been found to be OK according to the California court - using it is still up in the air, of course.

Back from class to find that a bunch of stuff has been posted over at Wired: KaZaA may be in trouble again this time; Brad King profiles the upcoming Congress’ players in the digital policy arena; and Sklyarov’s visa has been approved so he can now try to attend the trial in which he and his employer play a big role. *Whew* - I’m going home…….

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November 25, 2002

2002 November 25 [5:32 am]

(entry last updated: 2002-11-25 08:37:06)

I’m out of town, so I can only supply highlights, I’m afraid. But there are some must-reads out there

And it looks like Declan is starting to think that it’s not possible just to program our way out of our difficulties.

(5 items listed below)

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November 23, 2002

2002 November 23 [10:48 am]

(entry last updated: 2002-11-23 10:48:02)

Getting ready for my next trip - this time, I’m going to be pretty scarce for the next week.

Sony seems to be getting ready to make a major push - to cut off its own nose to spite its face.

(1 item listed below)

  • Sony seems to be announcing a new push to copy protect CDs, at least if the Slashdot discussion is to be believed. Of course, it’ll be interesting to see what the Vaios will be able to do - has the entertainment division taken over Sony?

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November 22, 2002

2002 November 22 [7:27 am]

(entry last updated: 2002-11-22 23:11:08)

Today’s Foxtrot cartoon expresses a not uncommon thought - albeit about a different artist.

The Register discusses the "Darknet" - sounds like a great name for a weblog …. or, as Dave Barry might say, a rock band!

And it looks like TPP alum Alan Davidson is going to have a busy day! Not to mention the lucky attendees at today’s Revenge of the Blog get-together. LawMeme posts and links from the event A,B,C,D,E,F.

Interesting - BMG talks about changing their royalty accounting practices. And *shock* - a TCS article that supports P2P? Moreover, a series of conservatives coming down in the side of Eldred? Quite a day!

(9 items listed below)

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November 21, 2002

2002 November 21 [8:33 am]

(entry last updated: 2002-11-21 09:14:33)

Well, the crush is over for the moment.

FatWallet is being told that price lists are copyrighted, and protected under the DMCA? Time to start commenting!

And Microsoft tells us to "beware the dark net&quot

(4 items listed below)

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November 19, 2002

2002 November 19 [6:13 pm]

(entry last updated: 2002-11-19 18:13:47)

I’m up to my neck in alligators, but everyone’s talking about this piece by one of the most well-known Apple advocates, wherein he decries the problems with the DMCA.

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November 18, 2002

2002 November 18 [6:41 am]

(entry last updated: 2002-11-18 06:44:22)

Looks like Comdex is going to be an interesting battlefield the next few days, if Fox has anything to say about it. In another fit of self-delusion, the industry expects streaming to supplant downloads?

(2 items listed below)

  • A new voice from Fox to raise the controversial position at Comdex that a more restrictive technology will ensure the next technology boom. Sounds counter to what I expect - pay more for less?

  • I’m not sure who Brad King talked to, but the notion that streamed content will displace file downloads seems to be the product of a fevered mind. Without stringent controls, that will choke off demand, I can’t see the market going for it.

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November 17, 2002

2002 November 17 [11:14 am]

(entry last updated: 2002-11-17 12:04:23)

Again, lots to do, but a look at UserFriendly today reminds us of the difficulties with holier-than-thou arguments. And firstmonday has an article that asks about the contradiction in copyrighting scholarly publishing. A series of provocative talks at Harvard on the future of the networked university are summarized at Copyfight. Wired News gives an overview of the webcaster royalty bill passed last week. And Wired itself has an article that argues that sneakernet and an iPod clone will already do more damage to the record industry revenue model than anything on the Internet today.

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November 15, 2002

2002 November 15 [9:08 am]

(entry last updated: 2002-11-15 15:08:02)

I promised myself that I would catch up instead of posting today, but this indication that Mickey may have been freed long ago is too good to pass up. (CNN article)

At least we won’t see the Napster brand equated with pr0n. And the webcaster royalties saga continues.

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November 14, 2002

2002 November 14 [3:10 pm]

(entry last updated: 2002-11-14 17:25:12)

I’m up to my neck today after being out of town. And, of course, that means that there’s lots to catch up on

Intertrust’s DRM is under consideration by Sony and Philips. The NYTimes talks about temporary DVDs. The Open Source community considers the threats of software patents. And Salon shows why digital distribution offers real benefits while changing the nature of the medium. A last minute change to the Homeland Security bill shows computer geeks what for!

A Findlaw columnist asks about intentions versus results in international intellectual property law.

More importantly, the increasingly bizarre nature of the approaches being taken to “solve” the problems of digital IP makes me think that we may be living through the first real example of historical materialism in the digital era - to wit, because the current economic and social system is failing to promote (in fact, blocking) the next generation of material innovation, those systems will be supplanted by a refined, revised system. The strategic questions then become (1) who’s going to figure it out first and (2) how much damage will be suffered by those who are late to the party because they continued to build ever-shakier structures to preserve the old order?

(8 items below)

  • Slashdot discusses in some excellent detail the Intertrust DRM system that Sony and Philips are considering. While the consensus is that the technology at least makes it clear what you’re buying, it’s going to be very interesting to see if the companies that employ this technology will actually be able to demonstrate the value proposition. Personally, I can’t believe that they’ll be able to price the IP they lock up with this apparently expensive lock, but that’s just my two cents.

  • The NYTimes describes the perishable DVD as an alternative approach to rights management - an even stranger concept given that I’m the kind of consumer who refuses to buy anything that I can’t eventually put onto some kind of permanent medium - this just seems crazy, unless the price is going to be really really low. Slashdot discussion

  • Now that Microsoft is unfettered, what IP instruments might they employ? Wired discusses the challenges facing the Samba open source SMB networking team.

  • Salon has an article discussing the impact of the DVD on the movie business. It points out that the distribution not only makes these creations more accessible, but it also changes the nature of both the business and the art.

  • The Register describes EMI’s plans to offer music downloads. LawMeme has pointers to more resources on the story.

  • Pressplay joins Rhapsody with content from all the big 5.

  • And the rhetoric of the Internet as a home for lawlessness continues to take its toll. At least some people are pointing out that the trends seem to be going the other way. And the NYTimes points out that the uber-database brings threats of its own.

  • Convergence: in the digital video recorder market; and in Hollywood in general
  • Peter Yu, a guest columnist at Findlaw, notes that the harmonization of international intellectual property law has not led to all that much harmony, especially between the developed and the developing world.

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November 13, 2002

2002 November 13 [7:51 am]

(entry last updated: 2002-11-13 07:51:28)

Two looks at the realities of copyright in the modern media age.

An Irish college worries about copyright infringement by the Jedi Council.

And, apparently, the movie Spider-Man has not made its movie studio a cent of profit. Slashdot discussion

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November 12, 2002

2002 November 12 [8:45 am]

(entry last updated: 2002-11-12 21:52:38)

I guess this is what should be expected once alienation is brought into the discussion.

And John Perry Barlow continues the fight.

Declan has posted a reply to his column that’s worth a serious read

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November 11, 2002

2002 November 11 [10:02 am]

(entry last updated: 2002-11-11 14:52:25)

An excellent op-ed piece by Ernest Miller (of LawMeme fame).

(thanks, Ernest!) And MIT gets some nasty press and commentary over digital TV standards.

Movielink goes live - for those of you with the appropriate software, of course (something weird with Doc’s weblog and the permalink for this - search for "Earth to Hollywood") - and a Slate piece says it’s all for show. And the Times has an interesting article on what online CD sellers are facing in this market climate. And the transcript of a cell-phone conversation (LawMeme writeup)

Looks like Declan’s refining his politico-geek message - and did he read the Friday log <G> And New Scientist suggests that research will get P2P around Berman-Coble.

(6 items listed below)

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November 10, 2002

2002 November 10 [11:27 am]

(entry last updated: 2002-11-10 13:37:46)

An alert ESD.10 student who reads Technology Review (a magazine whose sell out has kept me from paying close attention) points out that there are a number of articles worth reading in the November issue. Also, John Reagle of the W3C gave a TPP lunch talk this week.

And User Friendly strikes a blow. And an interesting move to sell unprotected DVDs (from the Macrovision perspective, anyway)

The Register has a lengthy discussion of a TCPA/Palladium session held in the U.K. and a look at the evolving EU copyright law. And, on the home front, surveillance in the US is getting a military angle.

(8 items listed below)

  • Technology Review discusses digital entertainment post-Napster. The CD protection article describes the current technologies, while the DivX; article describes the inevitability of movies online. Doublethink or schizophrenia?

  • On the other hand, the columnists are all on the same page. Seth Shulman discusses the Eldred v. Ashcroft case, and Simson Garfinkel points out the hazards of digital rights management.

  • At least Iliad is clear on what he thinks of CD copy protection.

  • The Register summarizes a detailed look at Palladium and the TCPA held in the UK, with an interesting look at the evolving political atmosphere surrounding these technologies.

  • Copy protection is also an issue at The Register today, this time in the context of the EU copyright directives.

  • This article from yesterday’s NYTimes is chilling:

    Admiral Poindexter, who has described the plan in public documents and speeches but declined to be interviewed, has said that the government needs to “break down the stovepipes” that separate commercial and government databases, allowing teams of intelligence agency analysts to hunt for hidden patterns of activity with powerful computers.

    Where’s the BuSab when you need it? (A little more detail is about 1/3 through this chapter.)

  • As Larry mentions in his blog, Open Spectrum looks to be his next push - as came up at ILaw this past summer. According to this article, an interesting ally has appeared.

  • New Scientist reports that Columbia Tristar is releasing DVDs without the noxious and easily circumvented Macrovision system.

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November 8, 2002

2002 November 8 [7:57 am]

(entry last updated: 2002-11-08 19:55:46)

After putting in the effort to write a little more completely about how I think the concept of alienation helps to explain some of the things that concern me on these topics, we get a great article in The Register to demonstrate what I mean

Wired doesn’t expect digital TV to get any easier to deploy with McCain instead of Hollings at the helm of the Senate commerce committee

Charlie Cooper takes Microsoft to task over Halloween nn. And an excellent article at CNN discussing the architectural limitations of the newest CD formats - SACD and DVD-Audio.

Based on some of the things I’ve been reading this week, I’ve got a new suggestion for Donna Wentworth on her question of how to (re)frame the rhetoric of copyright - or at least bring in a new constituency with a proven track-record: "Today, Microsoft/Intel/TCPA/RIAA/MPAA/(insert organization here) wants to register your computer; next, it’ll be your guns!"

(9 items listed below)

  • The Register follows yesterday’s BMG position on protected CDs with a translation and interpretation of an EMI &quot’customer service" note.

  • Wired News summarizes the state of play in digital TV policy.

  • One of the current ESD.10 students sent me this link; terribly a propos of the discussions of copyright and culture that have dominated my thinking these last couple of days - particularly the issues around copyright and derivative works.

    Even more gratifying to me in my role as lecturer was his postscript

    I thought you might find the author’s view interesting and I didn’t see a link on your weblog. Copyright issues are one of those things I didn’t pay attention to before - now they seem to be everywhere. Incredibly interesting stuff. Thanks for opening my eyes.

  • Another TPP voice heard from - Alan Davidson’s talk at Cornell gets covered here

  • Again on the alienation angle; this article argues that, if copyright holders want to protect their goods, they should not be expecting the consumer to foot the bill through the purchase of new, DRM-enabled hardware. Rather, they should be paying more for enforcement and policing.

  • A kinky dervative work, which has been found to be non-infringing - so far.
  • Microsoft aiming for Adobe with ePeriodicals? I mean, XML is great and all, but really!

  • Billboard posts poll results on what’ll entice consumers to buy CDs.

  • The CNN verdict on SACD and DVD-Audio: “unfriendly, but better sound.” The first of this century’s DAT fiascoes? Another quote:

    The Audible Difference in Palo Alto, California, is refusing to sell SACD or DVD-Audio players until manufacturers can ship a hybrid unit that plays both formats as well as legacy CDs in the highest quality sound available.

    “Until we see a product like that, we’re sitting on the sidelines and we’re counseling our clients to sit on the sidelines,” said Tim Fay, who sells high-end stereo equipment at the store.

    … Sony, which developed the SACD format with Philips, says it will continue to make SACD players without digital outputs until there’s an industry standard for securing the digital audio stream.

    “With high-resolution audio, the need for secure interfaces becomes even greater, since the quality of audio on such formats as SACD is virtually indistinguishable from the master (tape),” said Sony spokesman David Migdal.

    Panasonic hasn’t incorporated digital outputs into its DVD-Audio players for the same reasons.

    Despite the intentions of the manufacturers to limit digital copies, consumers favor such uses for music.

    In a recent Gartner G2 survey, 88 percent of respondents said they believed it legal to make copies of CDs for personal backup use while 77 percent felt they should be able to copy a CD for personal use in another device.

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November 7, 2002

Thoughts on Alienation and Control [8:35 pm]

(entry last updated: 2002-11-08 18:42:22)

Between seeing Jonathan and Siva at last night’s copyright and culture talk, and reading Larry’s weblog entry today, I can see that it’s time to just jump into the discussion that I’ve started with the ESD.10 students last week.
Warning: a lengthy (and tortuously-worded) write-up of ideas still baking lies ahead!

For me, one of the most troubling dimensions of the copyright contretemps that we find ourselves in is the fact that my sentiments lie with those whose actions have been routinely characterized as "thievery." Without getting into the merits of that argument, it has been clear to me for quite some time that my reaction to many of the architectural changes (to use Larry Lessig’s Code metaphor) in the technologies underlying the distribution of intellectual property has been strong and negative — and I have rarely if ever even employed the tools that are regularly characterized as being the most offensive in the eyes of the copyright cabal.

My working hypothesis has been that I do not have some latent desire to take up a life of crime; rather it is that there is a real reason for my revulsion when confronted with some of these new approaches to managing copyright infringement in the digital realm. Given this assumption, I have been trying to find a language that helps not only to articulate the basis for that reaction, but also to form a basis for thinking about what to do about the problem.

I do not want to suggest that I have found that language (yet!), but I have found a set of ideas that have taken me a lot further than I expected. These are the ideas that stem from a consideration of the notion of alienation.

Alienation, as defined in the Merriam-Webster Collegiate Dictionary Online, is "a withdrawing or separation of a person or a person’s affections from an object or position of former attachment" - the separation of a person from an object. While I’ve tried to wrestle this and like definitions from other sources into shape, I find that I have to resort to Marx’s notion to really articulate what I’m thinking about. The Oxford English Dictionary Online gives the following quote that summarizes Marx’s characterization of alienation as

the notion that in modern capitalistic society man is estranged or alienated [emphasis added] from what are properly his functions and creations and that instead of controlling them he is controlled by them.

What I am suggesting is that there is a kind of alienation that is implicitly at the heart of transactions that convey intellectual property, on the side of both the creator and the consumer. This alienation, as in that of Marx, introduces opportunities for control a la Lessig. And, more importantly, in many of the present cases that so concern us, those opportunities for control are not immediately apparent to the current consumers of intellectual property goods or, more importantly, to those who seek to legislate in this area.

To try to illustrate, let’s compare and contrast two ways in which one might “consume” a good whose value derives from intellectual property - a piece of music. In the case of sheet music, the consumer must employ his skills, training and instrument to create the music as given in the sheet music. However, this consumer can elect to play the piece as written or to exercise his own discretion and play it in a different fashion - say, change the key or time signature, play the music allegro instead of andante, or use different tablatures. More radically, the consumer could elect to start in the middle, repeat a passage incessantly, or transcribe the piece for a different instrument. Because the process of converting the expression on paper into the experience of music is under the consumer’s control, all these variants are possible.

Now, consider the buyer of the same piece of music on CD. Under this circumstance, the consumer must rely upon a device to convert the expression into experience (unless the consumer is Isabel from Roswell <G>), and the key, tempo, sound of the music is fixed. Many of the possible variants that the user of sheet music has at his disposal are not possible when it comes to the CD. In fact, without the device, the expression cannot be converted into music at all. The technology of this music format has alienated the consumer from the process of converting the expression into experience.

Of course, the consumer also sees certain gains from this alienation - he doesn’t need to learn to play an instrument, or read sheet music, or hire an orchestra to enjoy the music at all. Moreover, he can listen to the music under a host of circumstances that would otherwise be impossible - jogging, driving, etc. So, the consumer can tradeoff the loss of control that is a consequence of this alienation against the other advantages that he gains.

Interestingly enough, the metaphor of alienation can be extended to the creator as well. Consider the text of Title 17 itself. Chapter 1, section 102 starts “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Arguably, copyright is only awarded once the the author alienates himself from his creation by “fixing” it into a form that can be communicated, duplicated, etc. And the incentives for this alienation are the fact that the resulting good can be more widely disseminated, to the potential gain, economic or otherwise, of the creator.

In this light, the role of copyright and several of the doctrines within copyright law take on a different light. For example, in reifying his creation to make it ready for distribution, the author has also lost control - it is no longer in his head. To redress this loss, copyright awards the creator certain legally enforeable (and economically valuable) controls in terms of duplication and performance, among others. Another idea - first sale - can arguably be a formal limit on the control to distribute that copyright returns to the alienated creator. (I’m still working on fair use <G>)

More importantly (and returning to the ideas that got me started), the issues that one takes with the zoning of DVDs or the limitations of eBooks now make sense in a context that has nothing to do with theft. Rather, what these and similar technological controls represent is an exploitation of the fact that the consumer must rely upon a device not of his making (or under his control) to derive the experience implicit in such goods. Now, you HAVE to watch the trailers on a DVD, not to mention the FBI copyright warning.

In fact, these new technologies give the copyright holder a control over the consumer that has not been available before. With an eBook, it is now conceivable that one could be charged for each reading of a text. With the next generation of CDs, a similar control over music listening could be developed. With the forms of technological alienation being developed today, the copyright holder is now able to exert a control over the process of experiencing that before ended at the point of sale.

Now, it may well be possible that the consumer will accept this loss of control in exchange for the added features, conveniences and reduced costs that would accompany these new technologies. But, it may also be that the tradeoff will not be accepted by the marketplace. The DAT recorder demonstrates that there are some controls that will not be traded away.

But the horror of the circumstances in which we find ourselves now is that the value of these controls is not being negotiated in the marketplace. Rather, these controls are being legislated under the guise of protecting the creator from theft.

This is so distressing not because such legislation will be successful in the long term; I am enough of a believer in freedom that I expect it will prevail in the face of these farcial rules and the readily cracked technologies that will be deployed to enforce them. Rather, I am worried because, during the short term that they are in force, the market may violently respond to buying these crucial technical artifacts from offshore, grey market suppliers. Since this legislation short-circuits the market, such a response is not out of the question - consider the large market for aftermarket EPROMs to circumvent the pollution control technology in California automobiles. And, once the market moves on, will there be any chance to save what’s left of our industries before they are just another addition to the globalization death toll?

It’s just another verse in the Lessig “song” whose refrain is becoming more and more pertinent each day:

<refrain>

  1. Creativity and innovation always build on the past.
  2. The past always tries to control the creativity that builds on it.
  3. Free societies enable the future by limiting the past.
  4. Ours is less and less a free society.

</refrain>

(more refinements to come; here or in later incarnations. In particular, working through the notions of alienation for a wide variety of IP goods leads to interesting parallels with situations under consideration today. For example, the playwright/screenwriter and the programmer have something in common - each relies upon another’s interpretation of the source code - the director/actors & the compiler programmer - to create the good that is actually consumed. Directions can be included by the creator - exit stage left & -O3 - but they need not be considered. It’s weird where this thinking has taken me)

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