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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