January 31, 2003

2003 January 31 [9:33 am]

(entry last updated: 2003-01-31 09:49:18)

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January 29, 2003

2003 January 29 [10:03 am]

(entry last updated: 2003-01-29 15:13:16)

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January 28, 2003

2003 January 28 [9:20 am]

(entry last updated: 2003-01-28 17:02:45)

  • Slashdot has a couple of tales to consider this afternoon:

  • Donna points us to a couple of resources on the post-Eldred copyright thinking process going on among the Berkmanites.

  • The discussion area that goes along with BoingBoing’s log entry for the recent Eldred-related Tom the Dancing Bug cartoon cites this earlier Ruben Bolling cartoon as a demonstration that he’s changes his tune? I don’t read it that way, but maybe I’m missing something. See, for example, this one that I cited earlier.

  • A rather intense article on digital radio from SFGate describes a number of interesting ways to use it, plus how to.

  • You may wonder why this BBSpot piece cracked me up so much - make sure to read to the end…..

  • One of the interesting sidelights of attending the Berkman Center’s ILaw program last year was listening to several of the law school faculty discuss (at the lunches, for example) strategies for attacking certain laws in court. You need a real conflict between an actor and the existing law, of course, but at least as important is making sure that your actor (soon to become either a plaintiff or a defendant) is sympathetic. Hence, dropping the 2600 case (a “hacker” magazine) or going with Eric Eldred. So, can KaZaa get away with their attempt to challenge the music industry’s use of copyright? Slashdot discussion

  • Looking at today’s Doonesbury, it’s not clear that he’s come to some new conclusions - however, it’s instructive to compare what Jimmy Thudpucker has to say with what David Bowie had to say last year:

    “I don’t even know why I would want to be on a label in a few years, because I don’t think it’s going to work by labels and by distribution systems in the same way,” he said. “The absolute transformation of everything that we ever thought about music will take place within 10 years, and nothing is going to be able to stop it. I see absolutely no point in pretending that it’s not going to happen. I’m fully confident that copyright, for instance, will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing.”

    “Music itself is going to become like running water or electricity,” he added. “So it’s like, just take advantage of these last few years because none of this is ever going to happen again. You’d better be prepared for doing a lot of touring because that’s really the only unique situation that’s going to be left. It’s terribly exciting. But on the other hand it doesn’t matter if you think it’s exciting or not; it’s what’s going to happen.”

  • Egg On Face Department: Worm Hits Microsoft, Which Ignored Own Advice - Wired’s AP wire story

  • And a piece that brings back my days of supporting OS/2, although “astroturfing” in those days was a computer industry insider game, rather than a national political one: Editors and Lobbyists Wage High-Tech War Over Letters

  • And the Library of Congress is going to get to learn first hand about some of the issues raised in the Eldred briefs. This article, Effort to Protect Recordings Begins, describes their effort to preserve key elements of American culture and make digital copies of some great recordings (2002 registry), many of which (including, for example, the MArtin Luther King “I Have A Dream” speech) are under copyright protection. The LOC gives links to the legal basis for their effort, and it may have elements that allow the LOC to skirt the copyright law - but Thomas is *really* slow this morning! - Here’s one interesting bit, though:

    Property of United States.–All copies of sound recordings on the National Recording Registry that are received by the Librarian under subsection (b) shall become the property of the United States Government, subject to the provisions of title 17, United States Code [ed., the current Copyright Law]

    Study and Report on Sound Recording Preservation and Restoration.–The Board shall conduct a study and issue a report on the following issues:…

    • 4) Current laws and restrictions regarding the use of archives of sound recordings, including recommendations for changes in such laws and restrictions to enable the Library of Congress and other nonprofit institutions in the field of sound recording preservation to make their collections available to researchers in a digital format.
    • (5) Copyright and other laws applicable to the preservation of sound recordings.

    I look forward to hearing what Jenny Levine might have to add to this!! - Here’s the Slashdot discussion

  • The New York Times also reports statistics showing that purchases of recorded video exceeded rentals last year, largely ascribed to DVDs and pricing.

  • Some blurbs from Billboard:

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January 27, 2003

2003 January 27 [6:38 am]

(entry last updated: 2003-01-27 19:20:32)

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January 26, 2003

2003 January 26 [10:25 am]

(entry last updated: 2003-01-26 11:55:08)

Good thing I came into the office to get some work done - looks like MIT’s gateway out into the rest of the Internet is dead - at least, as of 10:25AM *I* can’t get outside of MIT, and I see that no one has accessed this machine’s httpd since 4:00:34AM today.
UPDATE: - curiouser and curiouser - now I can get out of MIT, and I see that others have been able to get *in* througout - my little Apache “tail checker” was interrupted so I mistook my problems for yours.

Upon further reflection, I’m guessing that the MS SQL bug/worm must been at least a contributor, although I still don’t understand the asymmetries (I can’t get outside of MIT, but others can get in?).

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January 25, 2003

2003 January 25 [6:25 pm]

(entry last updated: 2003-01-25 20:26:21)

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January 24, 2003

2003 January 24 [6:43 am]

(entry last updated: 2003-01-24 17:24:46)

Sorry - still no free source of the Ruben Bolling cartoon online - but here’s an older one that gave me a chuckle today and *is* available without a Salon subscription.

  • There’s an interview with Cory Doctorow at SFGate.

  • Wal-Mart distribution meets digital music distribution - the acquisition of LiquiAudio’s assets by WalMart could lead to some very interesting things. "Do you want a digital download with that?"

  • Looks like the Senate is at least willing to ask some questions about Total Information Awareness.

  • edited thumbnail graphic from wired article

    It’s been discussed before, but Wired has a pretty thorough look at The Civil War Inside Sony - and a fabulous graphic. The real powerful part of the article is the discussion of the threat that DRM brings into the picture - Sony having to fight to keep Microsoft off of their turf. (Slashdot discussion: Sony: Case of Right vs Left Hand)

  • My daily excursion into the shoals of Tech Central Station had its usual effect after reading this piece on what’s wrong with intellectual property and drug policy in the Third World. However, a review of the book The Gifts of Athena: Historical Origins of the Knowledge Economy. describes an interesting point that bears considering. Although the author apparently describes knowledge as something concrete rather than a social construction, the author definitely views the communication of knowledge as a very important social construction - one that has had huge social and economic benefits.

    These feedback mechanisms were the most dramatic manifestation of a virtuous circle between knowledge and economic performance to that time, and similar virtuous circles have occurred repeatedly since industrialization, as technology has made communication easier and cheaper. Mokyr argues, correctly in my opinion, that knowledge itself is not a social construction, but the communication of it is.

    This may be an interesting framework to consider the policy objectives and implications of copyright……

  • Ed Foster’s Gripe Line column at InfoWorld this week (Don’t pass this along) looks at the dynamics of the Intuit TurboTax software protection scheme, the reactions of the consumers, and the agenda of the firm given the scheme’s features.

  • David Coursey is exercised over the MPAA’s opposition to ClearPlay and other mechanisms to “sanitize” or otherwise edit legally purchased movies - the perils of the “derivative work” clauses in the copyright act. Of course, Mr. Coursey has never been a stickler for consistency in his opinion pieces, but this one seems to have struck a chord, given the volume of comments in the TalkBack.

  • The Register puts in their $0.02 on the Alliance for Digital Progress. Slashdot’s article is up, too. Wired adds a little to the discussion, particularly with an odd list of likely affililate organizations. Read what Jack Valenti has to say in this Billboard article - nah, I’ll quote it here:

    “Consumers will be the beneficiaries of a digitally honest world,” Jack Valenti, president and CEO of the Motion Picture Association of America, said in a statement about the new lobbying organization. “We are not the enemy. We are not at war with the IT community. … I am shaking my head in wonderment at this million-dollar campaign to deride us.”

  • Today’s (yesterday’s) Ask Slashdot poses this question: How Much Does it Cost to Produce a Recording? - some personal experiences in addition to the typical pointers (Courtney Love’s piece, Steve Albini’s, etc.)

  • The Hilary Rosen sendoff in the NYTimes is nicer than many.

  • Wired has an article on the potential fallout of the Verizon ruling: ISPs: Ruling Bad for Subscribers

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January 23, 2003

2003 January 23 [9:10 am]

(entry last updated: 2003-01-23 18:20:11)

Garry Trudeau’s still out, it appears: today’s comic and March 28, 2002’s

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January 22, 2003

2003 January 22 [6:39 am]

(entry last updated: 2003-01-22 18:10:29)

Looks like it’s going to be a Verizon sort of day.

  • A weblog that I only visit on occasion has an entertaining take on the Rothstein article post-Eldred. It sort of challenges the “great (wo)man” hypothesis, but it also makes a couple of points worth consideration.

    We don’t know what innovations are being thwarted by corporate control over Mickey Mouse. We don’t need to. The point of having free markets rather than monopoly markets is that many heads are better than one. If Mickey is free of monopoly control someone, somewhere, will use this freedom to build a better mouse and offer it to the public.

  • From the Wired hardcopy mag: The Year The Music Dies - a recounting of the basic problems of the recording industry, showing that there have been failures on all sides, but the industry has foolishly failed to move with the times (or to move at all!). An nice, clean summary of the problem, with a kickoff quote from the late Timothy White of Billboard that’ll knock you down - you may want to read this piece by him on the industry’s digital failures or its followup on what they ought to be doing.

  • Cory Doctorow points out that the EFF is soliciting comments, experiences, etc. on DMCA section 1201 (anticircumvention) to be submitted to the Copyright Office. If you have an example of how anticircumvention effects you, here’s a chance to be heard.

  • A call for ethical programming from eWeek.

    The most intrusive provisions of the [PATRIOT Act] depend on IT systems and products that must be newly built or integrated from existing offerings, giving IT developers and service providers a special role to play in the defense of privacy. The IT community should refuse to cooperate beyond the strict letter of the law, and should take the government’s abusive course as a signal that private-sector practices should be designed to minimize the value of intrusive, unfounded inquiries.

    I can’t find the reference in ScriptingNews where Dave pointed out that there were things that ethical programmers wouldn’t do (in re Berman-Coble) - found it!: Hollywood wants the right to hack your computer. Here’s the part that I remembered:

    As a computer professional, I expressed my disgust. We have strong ethics in this business. We look out for less technical users, like this executive. At a technical level it’s impossible for software to tell the difference between a legal scan and one of questionable legality. Further, the question reveals an incredible and unrealistic selfishness, why should we allow him to hack our computers to protect his copyright? It would have been unethcial [sic] for me to say anything other than don’t under any circumstances do that, and that is what I said.

  • The NYTimes has a piece on P. Diddy and his efforts to shop his label around; a look at the business of music today.

  • Reports on the Verizon ruling yesterday:

    Does anyone else hear the dominoes falling? Note that the Verizon ruling draws upon one of the key rationales for the Eldred v Ashcroft decision of last week:

    As recently as last week, the Supreme Court reiterated that “we defer substantially to Congress” on copyright law, that “we are not at liberty to second-guess congressional determinations and policy judgments” regarding copyright issues, and that “it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.” Eldred v. Ashcroft, No. 01-618, slip op. at 14, 17, 22 (S.Ct. Jan 15, 2003) (citing Sony Corp., 464 U.S. at 429, and Stewart v. Abend, 495 U.S. 207, 230 (1990)).

    Notwithstanding these technological advancements, then, this Court will not attempt to re-balance the competing interests among service providers and copyright holders to address P2P software or “bots” that can roam the Internet detecting infringing material. As the Supreme Court stated in Fortnightly, “[t]hat job is for Congress.” 392 U.S. at 401. To date, Congress has spoken through the text, structure and purpose of the DMCA, under which, the Court concludes, RIAA’s subpoena to Verizon meets the requirements spelled out in subsection (h) and therefore is valid.

    If anything, another call to take the challenge to the Congress.

  • Bill Moyer’s NOW Transcript is online: Tollbooths on the Digital highway

  • In case anyone’s looking for a short desciption of what the Johansen/DeCSS case is about, Russell Pavlicek’s DVD fairy tale isn’t too bad a place to start - if for no other reason than the fact that he tries really hard to point out that DeCSS is not about copying DVDs

  • Hmmm - seems Garry Trudeau is on vacation, or he’s just happy to recycle some old material. Jan 21, 2003 and Jan 22, 2002 look a lot like March 26, 2002 and March 27, 2002

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January 21, 2003

2003 January 21 [9:05 am]

(entry last updated: 2003-01-21 19:04:46)

  • Here’s a hoot - a technology that will identify a song upon hearing someone hum a few bars.

  • Verizon loses and has to disclose the name of the mystery KaZaA user. The opinion is online via the DC District Court Opinions WWW Page - Ed Felten’s had time to read it and gives his thoughts. LawMeme has also posted something. And here’s the Slashdot article

  • Something to drop into the mix: How to manage a dream factory from The Economist. A look at what seems to work (and doesn’t) in the entertainment industry today. Note particularly the discussion of EMI Music.

  • Of course, the alternative is to use the inconsistencies in the Eldred v. Ashcroft decision to take on the DMCA.

  • In all the hue and cry over the Eldred decision last week, I missed this article in the New York Times by Edward Rothstein (note that Larry has already commented on this in conjunction with a Doc Searls post at AOTC - also see LawMeme): The Owners of Culture vs. the Free Agents. It is important to read this critique of the Lessig position. It makes its points compellingly, and it shows that the current articulation of the problems that the present construction of copyright create is inadequate - this article is very possibly a roadmap to the flaws in that discussion. For example:

    It may be that one reason passions have flared so high is that a dominant style of popular culture in the 1990’s was pastiche, which is indeed hampered by copyright. But if cultural health were really affected by whether Mickey and his contemporaries were in the public domain, there may be other, more serious problems to consider first — like why a truly creative culture can’t find other ideas to work with.

    The unfortunate part of Larry’s and Doc’s postings are the fact that this is just restating an issue that has been kicked around for quite a while - how to reclaim the rhetorical high ground in this argument? (For example, look at this particularly egregious example from last year) The conflation of copyright with property has been cited as a problem for quite a while, yet we seem to have gotten no further in debunking the position.

    The only way to beat it is to find an example that will force everyone to agree that they are distinct - picking the example is hard, though. So far, the only one that I can come up with is for us to start arguing that, if it’s property, then either property taxes should be assessed or someone needs to argue why property taxes should not be paid - sort of a Chuck Rangel (D-NY) strategy.

    Donna’s added a few more links to the mix.

  • Findlaw’s Chris Sprigman weighs in on the Eldred decision. After recapping the standard set of complaints voiced by others, he closes with a claim that this decision is just one more demonstration (most notable in Bush v. Gore) that:

    [w]ith Eldred, the case that ours is an era of conservative judicial activism - in which law is trampled by conservative politics even on the Supreme Court - only gets stronger.

  • Business 2.0 has a piece on the “truce” declaration last week between some consumer electronics companies and the RIAA. After a lot of the usual stuff we’ve already read, a little light:

    The RIAA is perhaps more flexible now than it has ever been, and it’s time for technology companies to put the consumer experience ahead of the recording industry’s interests, once and for all.

    I’m not talking about condoning Kazaa and its ilk. Rather, I’m talking about creating digital rights management systems and payment models that are built with the consumer — not the recording industry — in mind.

  • Robbie Williams, European pop star has the following summary of online P2P filesharing:

    Singer Robbie Williams has said he believes music piracy is a “great” idea.

    … He said: “I think it’s great, really I do.

    “There is nothing anyone can do about it.

  • Another entrant into the fray between those who what to maintain the artistic purity of movies and those who want to be able to control what parts of a legally purchased DVD actually get through to the viewers - a look at a new DVD player proposed by ClearPlay Inc. and the legal fight - in SFGate. Stunning quote:

    “This is an abomination,” said Robert Giolito, general counsel for the Directors Guild of America. “I have more regard for music pirates. At least they respect the product.”

  • More on the Microsoft DRM package here at The Register. Some interesting information about the prevalence of WMA files in European music downloads. CNet also has an article based on the Reuters newswire. eWeek has picked up a BetaNews article on the subject as well that tells us that

    Sinead O’Connor’s new CD “Sean-Nós Nua” and Len Doolin’s “Once in a Lifetime” are the first albums to utilize a beta version of the Windows Media Data Session Toolkit. The technology has also been adopted by MPO, the world’s largest independent CD manufacturer.

    SFGate has an article that also discusses the Macrovision technology that was introduced the same day at the same event.

  • Not unexpectedly, the Jon Johansen verdict is going to be appealed. Slashdot discussion: “DVD-Jon” Faces Retrial. Wired news has the AP Wire report. The Register’s article is up.

  • Slashdot also discusses our friends north of the border (from whence comes the current bone-chilling cold here in Cambridge!). The loophole that allowed Canadians to put broadcast TV on the Internet has been closed, and the issue of media levies on all digital media (shades of DAT) remain a hot topic.

  • Last Sunday’s User Friendly points out that the power to shutdown P2P sharing is already in the hands of the RIAA.

  • CNet reports on the upcoming Digital Download Day, a followup to an earlier promotion to get people off the free download habit…. and into the pay download one instead. The NYTimes is carrying the Reuters newswire

  • In case you missed it: RIAA: Put ISPs on the hot seat - Ed Felthon’s interpretation

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January 19, 2003

2003 January 19 [11:08 am]

(entry last updated: 2003-01-19 20:22:09)

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January 17, 2003

2003 January 17 [7:43 pm]

(entry last updated: 2003-01-17 20:02:53)

Don’t ask - just one of those days…..

  • Salon asks "what now?" post-Eldred. A good summary of what has to come next:

    [Lessig's and Eldred's] work and words have solidified a popular movement. The movement is certainly not strong enough yet to roll back the copyright term through legislation. But in smaller ways, through a hundred lesser battles we can get Congress and the courts to serve the needs of students, teachers, and citizens instead of Hollywood studios.

  • And though I was out of commission today, you can still check out Donna’s postings today: What Doesn’t Kill Us and Passing Strange. And check out Cory Doctorow’s weblog entry to understand why the latest EFF weblog is Cruelty to Analog.

  • Here’s a learning experience: The Law and Technology of DRM, Berkeley, CA - Feb 27 thru Mar 1.

  • Doc Searls discusses the Arnold Kling piece and subsequent materials.

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January 16, 2003

2003 January 16 [7:33 am]

(entry last updated: 2003-01-16 19:14:32)

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January 15, 2003

2003 January 15 [7:23 am]

(entry last updated: 2003-01-15 19:20:30)

  • Auggh! 7-2 against Eldred! BoingBoing is in mourning (showing why CSS is the way to go, as well.)

    • Prof Jack Balkin of Yale has taken a shot at articulating some First Amendment perspectives on the Eldred decision. It’s an article that bears careful reading, especially in light of the closing paragraph:

      In the Court’s eagerness to get rid of the first amendment claims in this case, it has created truly bad law that will cause problems for freedom of expression for many years to come. This is simply a disastrous opinion for free speech, and the Court should be ashamed of the shoddy job it’s done in this case.

    • Eric Eldred has posted some comments on Slashdot.
    • AP Wire, via NYTimes: Justices Uphold Copyrights in a Victory for Walt Disney. (Wired News’ link if you don’t want to deal with the registration thing.)
    • UPDATE: The New York Times has a non-wire service article now. I can only hope that this paragraph is just the consequence of a race to go to press, rather than the actual central basis for the decision (of course, *I* haven’t had time to read the decision yet!):

      The majority opinion was written by Justice Ruth Bader Ginsburg, who declared, “History reveals an unbroken Congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime.”

      Hmmm - IANAL, but I would be interested to hear how one might reconcile this position with, for example, 37 CFR Part 255, Section 255.3

    • The opinion is not yet at the Court WWW site for slip opinions, AFAIK.
      UPDATE: Now it is. Note that this Eldred opinion link includes a six page syllabus/summary, as well as all opinions, in a single PDF.
    • Donna points to several sources, including the majority opinion, Breyer’s and Stevens’ dissents (local mirrors for all opinions), and Larry’s take 1 and 2.
    • LawMeme gets started, too
    • Larry’s updated his blog - a call to arms and an apology (!) for failing to convince the Court.
      Understandable, perhaps, but given how much Larry’s done to get this issue on the agenda, he really doesn’t have much of anything to apologize for.
    • Doc Searls says the same thing.

    • The Shifted Librarian is assembling links too.

    • Declan gets a posting from Charles Sims, who argues that the Supremes got it right. Of course, he’s had some rather controversial interpretations before.

    Lots of reading and thinking ahead……..

  • Arnold Kling’s TCS article on Creative Commons gets the Slashdot treatment today. Apparently, I am an exemplar of the “retro-60s” perspective that he decries. I’m going to have to think about why, but I’m guessing he’s unhappy that I’m worried about the market imperfections that might allow a publisher to control which content gets distributed - funny, I thought the originators of copyright thought they were addressing a similar problem with the passage of the Statute of Anne, but I must have missed something. (Here’s the text of the e-mail I sent this evening. Be interesting to see what comes of it.)

  • Doc Searls deconstructs the RIAA press release on the RIAA/BSA agreement.

  • LawMeme also has an analysis of the RIAA’s seven principles.

  • Dan King adds his voice to those who see lots of downside in the RIAA/BSA “compromise” cited yesterday.

    “They are trying to take the legislative process out of the legislature and put it in the hands of a few industry groups,” [the EFF's Wendy] Seltzer said. “There’s a lot of public debate that has to go on and we do need Congress to step in and undo the mess that has been created by the Digital Millennium Copyright Act.”

  • Salon also has a write up by Katherine Meiszkowski centered on an interview with Fred von Lohmann.

    So, you’re really downplaying the importance of this agreement.

    Yeah. I think it’s about positioning, especially because the MPAA and the CEA [Consumer Electronics Association] are not onboard. It’s not even a global solution in the Washington lobbying community, much less for the world at large.

    Again, as you point out, at the end of the day, the last time I checked, Congress would actually have to sign on. We have 535 representatives that are supposed to have something to say about this, and until they speak with one voice, the fat lady hasn’t sung.

    I hope not, at least. They’ve been kind of ducking their responsibilities on copyright for a long time. You can’t defer these decisions to private industries forever. Forty million people are using peer-to-peer software. We’re seeing incredible new home digital technologies. There’s a lot at stake here, and I don’t think that we can leave it to interindustry negotiations to decide the fate of our digital rights.

  • The writeup in The Recorder (via Law.com) also raises many of the same points. The CNet piece is even more strident:

    CEA President Gary Shapiro is precisely as unyielding as Valenti. “We continue to believe that legislation is required to strike the necessary balance between protecting copyrights and consumers’ fair use rights,” Shapiro said Tuesday.

    In other words, the RIAA and its allies at the Business Software Alliance (BSA) and the Computer Systems Policy Project (CSPP) are happy enough with the legal status quo, or at least don’t wish to risk a clash on Capitol Hill with an uncertain outcome. The movie industry, CEA and consumer groups, on the other hand, are willing to risk that confrontation.

    … A secondary impact of Tuesday’s announcement will be to bolster interest in hardware and software devoted to digital rights management (DRM), such as Microsoft’s Palladium architecture and the Trusted Computing Platform Alliance. On Tuesday, Transmeta said it planned to soon ship a Crusoe processor with proprietary DRM technologies to “protect sensitive data (and) deter intellectual property theft.” (See the related Slashdot discussion)

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January 14, 2003

2003 January 14 [8:54 am]

(entry last updated: 2003-01-14 18:38:41)

Came in today to a monitor without a working green gun - my eyeballs feel like they’ve been given an acid peel. No way I’m going to get much done until I replace this thing. When a white background looks magenta, you really can’t get a whole lot done <G>

  • The New York Times’ Amy Harmon has an article on the below-mentioned "compromise."
    (Slashdot commentary - once you get past the early nonsense posts, note that most readers have grasped the essentially limited nature of this agreement as far as the consumer’s digital rights are concerned)

    Amy points out a couple of strategic elements:

    Many consumer electronics companies did not join the agreement. They contend legislation like Rep. Boucher’s is necessary to ensure that consumers can make fair use of digital copyrighted material even when it is locked up to prevent illegal copying.

    The recording industry’s agreement with the computer trade groups marks a departure from its longtime alliance with the motion picture industry on the antipiracy front and underscores their divergent concerns. The music industry may already have taken the hardest hit from digital piracy that it will have to face, as it begins to experiment with technological copy-protection on compact discs.

    … Since the recording industry had never been a strong supporter of legislation that would mandate technical solutions to digital piracy, industry analysts said Ms. Rosen appeared to have conceded little that would have a far-reaching effect on the companies she represents.

    But the move may make it harder for Mr. Valenti’s group to achieve its aims.

  • It looks like a very interesting "compromise" has been negotiated between consumer electronics firms and the RIAA (Donna has a good set of links, including Ernest Miller’s LawMeme post) The Billboard article

    Lobbyists for some of the nation’s largest technology companies will argue under the new agreement against efforts in Congress to amend U.S. laws to broaden the rights of consumers, such as explicitly permitting viewers to make backup copies of DVDs for personal use or copy songs onto handheld listening devices.

    These companies, including Microsoft Corp., IBM, Intel Corp. and Dell Computer Corp., also will announce support for aggressive enforcement against digital pirates.

    In exchange, the Recording Industry Association of America will argue against government requirements to build locking controls into future generations of entertainment devices to make it more difficult for consumers to share music and movies. Technology companies have complained that the controls are too expensive and complex.

    …The agreement politically isolates the powerful Motion Picture Association of America, which was noticeably absent from the deal’s participants. The MPAA has aggressively supported new government requirements for built-in locking controls on new devices, such as DVD recorders. A spokesman for the group declined to comment.

  • Ed Foster over at InfoWorld sounds the warning alarm on the coming loss of digital rights.

  • Bruce Perens’ Open Source book series, and its interesting copyright, is profiled in the NYTimes.

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January 13, 2003

2003 January 13 [9:08 am]

(entry last updated: 2003-01-13 18:35:19)

  • Tech Central Station does it again; Donna points to this screed that makes the strange argument that copyright is the only reason that publishers make money, because it protects them from theft of their work/value-added, which is filtering the dross of all content for the few pearls that can be repackaged for profit. (Of course, we’ll ignore the fact that dross can be re-engineered to sell like jewels - at a handsome profit.)

    By studiously missing the point, he declares that Creative Commons is a bad idea - a “naive 60’s retro-ideological view of how content intermediaries function” - and makes the scatalogical analogy that all content is just the stuff that gets flushed down the toilet, with publishers catching the good stuff as it goes by. Thus, a CC license is a “hands off” to the publisher, ensuring that the content remains in its “unrefined” state.

    Bah! The real point, which he fails to clear up, lies in this sentence: "They [publishers] add value by filtering out content that people do not want (emphasis mine) and by having established mechanisms for collecting revenue and distributing royalties to authors." OK - why do they get to do this? Why do publishers get to be the arbiters of the public taste? Because they own/control the traditional instruments of copying and distribution (a barrier to entry that has now fallen due to the onward march of technology).

    If the market worked really well, publishers might actually perform this function (because market demand would give publishers the necessary signals to adjust the choices they make for us) - but, as we know, much of this industry has discovered that it’s actually easier to package the dross and call it caviar (c.f., Christina Aguilera, Britney Spears, the boy/girl bands, Insane Clown Posse, American Idol/Popstar and all the cultural nullities, or worse, of “pop” culture).
    [Note to self: find and reread John Gardner's On Moral Fiction]

    No real notion that there are some things that copyright obstructs that might be socially desirable, or enables that might be socially destructive. Classic TCS sophistries to get people riled up. Ed Felten takes a swat at it.

  • Declan McCullagh talks about potentially ubiquitous RFID chips in all purchased goods.

  • Russ Feingold told the Future of Music Coalition Summitt attendees that it’s time to take a look at Clear Channel and the other radio conglomerates.

  • Wired News is having a big day:

  • Proving that a broken clock is right at least twice a day, Hiawatha Bray makes some sense on the DMCA, using the Lexmark litigation as an example. This is a Boston Globe link, which has weird expirations, so here’s a local PDF in case it goes away tomorrow.
    Update: Ed Felten’s writeup is more useful and insightful.

  • The NYTimes uses the departure of Mottola from Sony to discuss the increasingly apparent need for a new business model in the record industry. Some of the radical thinking cited in the article:

    But cutting in-house costs is not enough, Professor Greenwald said. The revenue lost to music-swapping on the Internet is a long-term issue, and profitability will return only when costs have been adjusted commensurately, he said. Instead, he and others said, they believe that the industry has to rethink costs in almost every area — from the millions of dollars paid to retailers to the money paid to the independent promoters who push songs to radio stations’ programmers. They even, perhaps, should sign fewer artists.

    But most important, one veteran music executive said, is that the industry come to a decision to lower the cost of CD’s to the consumer, a highly charged proposal within music companies these days. “Now if you buy a soundtrack,” the executive said, “you pay more for a soundtrack to a film than you pay for the DVD of that film. It is completely crazy. A soundtrack has to be less expensive so that it is at the same price point or lower than the DVD’s.”

  • News.com has a piece on the complexities of licensing material for distribution in any form, much less on the Internet.

  • MP3newswire has posted their winners (KaZaA and Larry) and losers (RIAA and pay download sites) of 2002. The Slashdot discussion includes a good comment about the influence of technological alienation to give and take away control.

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January 12, 2003

2003 January 12 [11:16 am]

(entry last updated: 2003-01-12 13:21:00)

Back from an NSF workshop in Birmingham, AL - to a much, much colder Boston than the one I left!

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January 8, 2003

2002 January 8 [9:05 am]

(entry last updated: 2003-01-08 14:40:44)

  • Terry Fisher gave us a taste of his thinking on copyrights and music at ILaw last summer - apparently, he talked a little more about his ideas yesterday at the Future of Music Summit - Donna Wentworth summarizes and points to more information. I have to catch a plane, so it’ll take a bit to respond to her challenge <G>

  • The RIAA admits defeat?!?!? Not exactly - moreover, he’s not talking about speed bumps; rather it’s to drive free file sharing to the DarkNet.

  • An elert TPP student has pointed me to this article stating that Boucher has submitted legislation to protect fair use in the digital age. "[T]he Digital Media Consumers’ Rights Act (H.R. 107), the legislation is identical to the bill introduced by Boucher last November (H.R. 5544)."

  • Larry Lessig has a nice wrapup of the Johansen verdict - succinct and clear.

  • LawMeme points to a Techfocus interview with Fred Von Lohmann of the EFF. Slashdot discussion. A quote:

    But, in the long run, the Napster decision may well end up being the biggest courtroom defeat. Not because it put down Napster, but rather because it did so in a way that created a dangerous precedent for all technology companies. In the name of stopping P2P file sharing, lots of bad copyright law is being made in the courts right now, law that effectively puts entertainment companies in charge of technological innovation. If the precedents being made today were on the books 20 years ago, we would never have seen the photocopier, the VCR, or the CD recorder. I’m afraid, the bad copyright precedents will be with us long after Napster is a dim memory.

  • Jenny Levine, the Shifted Librarian, adds her thoughts to the article posted yesterday on the Future of Music Summit.

  • Today’s NYTimes coverage of the DeCSS verdict includes a statement from the MPAA: "We understand that the prosecution in Norway is reviewing whether to take an appeal, and we support that consideration. We look forward to reviewing the court’s decision in greater detail." So far, there’s nothing actually at the MPAA Copyright Press Release WWW page.

  • Russia’s CD distribution network (and the associated CD piracy) gets coverage from the BBC. A good look at the standard arguments.

  • Wired News reports that the Future of Music Coalition’s Summit had some interesting complaints (and listeners) on the subject the radio industry consolidation and the rise of homogeneous radio in the US.

  • The blank digital media levy imposed in Canada is slated for an increase, and there’s not a lot of joy about it, according to Wired News. Not to mention some interesting international trade consequences.

  • Cory Doctorow plays the "Is this a DMCA circumvention device?" game.

  • JoHo (I missed his IAP talk last night because I had one to prepare for today <G>) has some new digital identity thoughts.

  • The Register adds a new angle to the Microsoft announcements yesterday aimed at displacing MPEG-4 with Windows Media - is this an effort to put Windows Media Player-based tools on Linux, thus extending their potential DRM hegemony? Read the Slashdot discussion to see what the community thinks of this possibility.

  • Declan McCullagh gives a rundown of his expectation of pending legislative initiatives in Washington over the next couple of months - the Hollings, Berman-Coble and Boucher initiatives are cited, as well as some possible new spam/privacy legislation. (ZDNet version w/ talkbacks)

  • John Borland puts a little more meat onto the discussion of the possible implications if the current disparity in copyright terms between the US and Europe as the music at the outset of the rock revolution, as well as some major jazz classics, enter the public domain abroad. The possibility of region blocking over the WWW (an area of research of J. Zittrain) may be proposed by the RIAA. (ZDNet version)

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January 7, 2003

2003 January 7 [7:25 am]

(entry last updated: 2003-01-07 15:21:02)

  • The New York Times also covers an art exhibition, Illegal Art: Freedom of Expression in the Corporate Age, specifically set up to push — or go beyond — the limits of copyright law.

    All of the pieces either have run afoul of copyright owners in the past or could be expected to in the future. Jane C. Ginsburg, professor of literary and artistic property law at Columbia Law School, disagrees with the view that copyright laws have become more restrictive for artists. “The irony is that most of the stuff that I see on the Web site wouldn’t be considered illegal,” she said.

    But Edward Samuels, a New York Law School professor and author of “The Illustrated Story of Copyright,” estimates that half the exhibition is in violation.

    … The issues that pervade the exhibition are more imperative than they might seem, Mr. Hosler said. “The bigger aspect of this can be literally life and death if you talk about how intellectual property laws could allow a drug company to control the price of an AIDS drug,” he said.

    Meanwhile Ms. McLaren is still waiting to hear from lawyers intent on challenging her show or its pieces.

  • The New York Times has posted an article (rather than a news wire piece) on the Johansen verdict. A notable quote, showing that the rationale for CSS remains a mystery to the public press (emphasis added):

    The motion picture industry, which is lobbying Congress to strengthen copyright laws in the United States, has developed the Content Scrambling System to encrypt DVD’s so they cannot be illegally copied. Mr. Johansen’s program, DeCSS, is only one of a growing number of easily accessible software programs that crack DVD security codes, promising that the Johansen case may be only the first of many battles Hollywood will have to fight in its copyright wars.

  • LawMeme has two articles to note today: one on the Johansen verdict (see below for more), and one on the Slate piece I discussed yesterday.

  • Cory Doctorow reminds everyone (based on this Wired News article) to file a claim in the CD price fixing settlement.

  • It appears that the Madster injunction has been stayed. See Aimee Deep’s weblog entry - also, this NYTimes piece for a little background - or this InfoWorld piece for more details

  • A student from ESD.10 reports on the LivePhish WWW site (the FAQ), where they state:

    Welcome to the latest incarnation of Live Phish. A natural extension of the popular Live Phish CD program, Live Phish Downloads offers high quality, unedited soundboard recordings of select shows in the form of MP3 and Shorten digital music files via a state-of-the-art delivery system. All four of the New Year’s shows will be available via Live Phish Downloads no later than two days after each show.

    All download files are compatible with Windows, Mac and Unix operating systems, allowing for maximum flexibility and ease of use. Once downloaded, shows can be burned to disc, transferred to portable players, or played through your computer. Each show also comes with printable booklets, inlay trays, and labels if you elect to burn your files to CD.

    So, for a price, you can get your digital music - the vanguard of music distribution?

  • Amy Harmon reports that Microsoft is making a major push in their effort to embrace the digital media business by offering Windows Media codec rights for half the price of current MPEG-4 licenses. The closing paragraph summarizes the strategy of developing, and then exploiting, network effects in distribution. The ZDNet article on the same topic suggests that the industry knows what’s going on:

    Despite the lower licensing fees, analysts say Microsoft faces an uphill battle to convince consumer electronics companies to work with it. They say that many companies fear an alliance with the software behemoth because of its competitive ferocity. In addition, many companies are concerned about seeing their products become generic or a commodity.

  • Sony is looking at how to leverage artist exposure on youth-directed TV programs, in this case Dawson’s Creek, through special CD burning options.

  • Salon has a striking article on the role of bootlegs in Bob Dylan’s career, and the peculiar conflicts they raise for Dylan amd his recording company.

    Sometimes the mockery extends to Dylan himself. By general agreement, the rock bottom of Dylan’s concert career took place at a 1991 show in Stuttgart, Germany. Dylan opened with a train-wreck version of “New Morning,” then staggered through a series of barely coherent performances that left fans uncertain as to which songs they’d actually heard. Some wag took a recording, chose the dorkiest possible photo of Dylan for the cover, and issued it as a bootleg under the title “Name That Tune.”

    …Most of the arguments against bootlegging have a way of self-destructing. The recording industry says bootlegs are bad because they cheat the artist and his label of revenue, then says it cannot release the material because it wouldn’t sell in sufficient quantity. Columbia has no problem using unreleased tracks as collector bait; witness “Love and Theft,” which was originally issued with a two-track “bonus disc” in order to goose sales. If there is no market for this stuff, how can the bootleggers be endangering the industry?

    The argument is even weaker with the concert recordings that make up the bulk of underground recordings. The artist was paid for his performance; the audience members paid for their tickets. If no official concert recording was to be released, then how could a bootleg recording be cheating anyone of revenue? The industry’s crocodile tears over fans’ being sold a “substandard” performance aren’t very convincing; if the performance was that bad, perhaps the artist should consider reimbursing everyone who attended the show.

    The strongest line of attack remains that of respecting the artist’s wishes.

  • Another example (from SFGate) showing that, no matter how hard the industry tries, people will find a way to make copies.

  • Wired is reporting on the start of the Third Future of Music Coalition Policy Summitt today.

  • And The Register reports that Jon Johansen (of DeCSS infamy) goes free! (well, ok: is not guilty)

    Norwegian prosecutors, acting largely on the behest of the Motion Picture Association of America (MPAA), argued in court that Johansen acted illegally in sharing his DeCSS tool with others and distributing it via the Internet. They claimed the DeCSS utility made it easier to pirate DVDs.

    The court rejected these arguments, ruling that Johansen did nothing wrong in bypassing DVD scrambling codes that stopped him using his Linux PC to play back DVDs he’d bought.

    Judge Irene Sogn ruled that there was “no evidence” that either Johansen or others had used the decryption code (DeCSS) illegally, Aftenposten reports. Judge Sogn dismissed prosecution arguments that Johansen intended to aid and abet DVD piracy.

    • The Reuters report from the NYTimes (or direct from Reuters)- I’m sure the EFF site will be updated soon.

    • Update: Slashdot has posted their story - with some actual insights into the larger issues. (This posting includes many more news references.) Two key points - the venue was the Oslo City Court, meaning that appeals are possible, and legislation based on the EU Copyright Directive (which expired last year after only two countries enacted legislation based upon it) was NOT the basis for the decision (Norway hasn’t gotten around to this piece of WIPO compliance yet). Johansen was tried under Norwegian data theft laws, hence the emphasis upon intent - something notably absent, for example, in the US’ DMCA anti-circumvention provisions.
    • Donna at Copyfight has added her thoughts, plus some more links.
    • Here’s the Wired News piece - shockingly, it continues to represent CSS as a technology to prevent copying, in spite of the fact that it clearly has been designed to maintain the current motion picture distribution business model by “zoning” DVD releases to specific geographic locations, allowing them to maintain a two-tiered distribution system (cinema first, home playback later).
  • And Larry Lessig is sticking his neck out on a spam management legislation proposal. Slashdot reports and Declan accepts the moderator role

  • Jenny Levine’s Shifted Librarian gives more insight into the Cleveland Public Library’s plan to launch an eBook system - Slashdot discussion

  • And it appears that Intuit is finding out that, however you name it, implementation of a copy protection scheme when there’s real competition in your market is not a wise move. I switched from TurboTax to TaxCut long ago because of some of TTax’s other, equally arrogant, policies. Surprising that they figured the relative success of Microsoft’s “product activiation” would translate into a product segment with real competition.

  • For those who are following the digital/online identity discussion, Doc Searls’ latest contribution is an important insight.

  • And this site is getting a lot of play in the weblogs I frequent - basically, a new MP3 of a novelty track of one sort or another will be posted daily for the entire year.

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January 6, 2003

2003 January 6 [8:14 am]

(entry last updated: 2003-01-06 18:27:21)

  • Paul Boutin gives a rundown on the new CD formats over at Slate. Importantly, he points out that the market seems to have already spoken on the tradeoff between computer compatibility (i.e., "RIPpability") and sound quality - coming down heavily on the side of rippability. I also recall that the audiophile magazines have told everyone to eschew the SACD players out today because, even though they are able to read conventional CDs, their sound reproduction of these "old CDs" is TERRIBLE. Hmmmm….I wonder why? (Supposedly, they’re getting better, though)

    (Note: Everyone agrees that SACD on a SACD player is fabulous, but the audiophiles seem to have some other gambit that’s also pretty good - this is a typical piece of jargon from Stereophile - this article

    As regards 16/44.1 media, well…I still prefer upsampling on both the Accuphase and the dCS 972-driven Elgar. But there wasn’t a single recording I didn’t enjoy more in SACD mode when that choice was available, and by a wide margin.

    Clearly there are some tricks out there that the audiophiles use to wring everything out of conventional CDs - but the industry probably isn’t going to promote it too much….

  • This article from Wired News discusses one of the latest reports from the Pew Internet and American Life Program - something to chew on the next time you see one of those "instant polls" online.

  • Pursuant to the posting yesterday on Sendo-Microsoft, the Slashdot cimmunity weighs in here.

  • For more details on the Pavlovich ruling, check out this entry from Bag and Baggage.

  • Ed Felten has picked up on Jack Valenti’s speed bump analogy from the article in yesterday’s NYTimes. Ed points out that this analogy exposes the flaw in the way that the DMCA "thinks" about DRM - speed bumps are not absolute proscriptions on driving, merely architectural "suggestions." This may be a rhetorical wedge that can be used to point out why absolute proscriptions on decryption/circumvention are not appropriate.

    Update: (related, sort of) Fortune has an interesting article on hair-splitting the definition of circumvention when it comes to TiVos. Slashdot discussion

    Donna Wentworth adds some more insighs

  • Another form of music trading gets coverage in the NYTimes today. Unsurprisingly, the RIAA is not terribly concerned - after all, it’s not their money!

    Bootleg trading is not as widespread as Internet file sharing, however, and it does not provoke as much concern from the music industry, which worries more about piracy, as when counterfeit CD’s and song-file downloads cut into the sales of official releases.

    Cary Sherman, president of the Recording Industry Association of America, said the association cannot determine how much bootlegging occurs. But, he said, “the piracy problem is obviously a lot larger in scope, both in the physical world and online, because more people are trading and pirating best-selling discs than bootlegs of live concerts.”

    This explains why the association has not been especially aggressive in clamping down on bootleg trading. There are practical considerations, too. Musicians must object to specific live recordings before the association will step in. While some artists might grouse about retailers who profit from selling their bootlegs, online trades rarely involve money. Artists who prosecute individual fans for merely indulging in music beyond their official CD’s would be about as cool as a Guy Lombardo record.

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