June 30, 2003

Lessig and Zittrain - Pornography and Jurisdiction [5:40 pm]

(entry last updated: 2003-06-30 19:09:54)

Starting with a Zittrain-Lessig dialog. (Donna’s notes)

We posit a policy problem: how to solve the pornography problem? - step one, state the problem. Is it existence? No. It’s the accessibility of pornography that children can see. One solution might be to ban porn. [assume we know pornography when we see it]

Isn’t there a Constitutional argument? Doesn’t banning go to far - Michigan v. Butler. - so cannot get rid of all porn for all people, because some people can have access to porn

So, let’s just make sure that children cannot get porn - figure out how to card people in cyberspace - let’s employ identity. For example, says Z, let’s demand a credit card, which children won’t have

L: So I have to give my credit card to pornographers to get porn? I don’t want to give out my credit card - in fact, I don’t want to have any ID associated with my demand for porn.

Z: What about a digital ID? Something that associates some set of information with that ID, one piece of which is your age.

L: That seems to work. Should give me the anonymity the Constitution required. The CDA problem is avoided, I think. There’s still a burden of ID to access speech - doesn’t the First Amendment require that I have access to porn. After all, an average porn consumer is not carded, right? S/he looks old enough without a need for a card.

L: Given that there’s a compelling reason to avoid children getting porn, is this really the least egregious burden? After all, the pornographer also has the burden of ensuring a robust mechanism for checking these IDs. Isn’t there a solution that might avoid this burden? If so, then that’s the Constitutionally required approach.

L: How about requiring kids ID, rather than adult ID. How about a kid-enabled browser? Parents could set up children’s computers, so parents have the burden, instead of the porn consumer.

Z: So, we require the porn www site IDing itself, and the children’s browser will look for it and block it. For example, let’s look at the Content settings for the Internet Explorer - settings can be applied. OOPS - CNN.COM is blocked by a level 4 setting in violence. Looks like trouble.

L: So, sites will have to do their labeling - let’s pass a law. Wait - labeling is only required under the law for pornography - so detailed labeling is not necessary. Just a Porn Flag - or, as the goal posts move, "harmful to minors"

So we get a new burden - what does harmful to minors mean? Let’s skip this altogether and let the free market generate ratings by third parties. Once these ratings appear, browsers will arise that recognize the ratings. For example, the ADL Hate Filter; or Net Nanny. Filters - RSACI, which is now owned by the same site that does filtering for the ADL

Looks like the use of <meta …> tsg. Larry points out that labeling can characterize well beyond the porn/no porn axis. Is it possible that this is more burdensome?

Z: Why isn’t filtration along multiple axes not better, because parents can police more speech - it may be less free speech, but kids are protected. It’s digital babysitting.

L: What if you criticize NetNanny? Mightn’t they block you because of that? Say PeaceFire, which tells you how to evade filtering software?

Z: Zounds! Better block that site; it’s depriving parents of the right to manage their children’s online activity.

Is Cyberspace Burning? - the ACLU explanation that filters are going to eliminate free speech on the internet.

(Note: this is NOT an easy session to summarize - I’m looking forward to seeing how Donna does this!)

"Harmful to minors" - versus pornography. Larry raises the question, beyond the constitutional issues, of effectiveness - will this really work?

Terry tells us that Posner upholds the AIMSter block

Copyright law

and the principles of equitable relief are quite complicated

enough without the superimposition of First

Amendment case law on them; and we have been told

recently by the Supreme Court not only that “copyright

law contains built-in First Amendment accommodations”

but also that, in any event, the First Amendment “bears

less heavily when speakers assert the right to make

other people’s speeches.” Eldred v. Ashcroft, 123 S. Ct. 769, 788-89 (2003). Or, we add, to copy, or enable the copying of, other people’s music.

OK - can I get back on track - I doubt it, but let’s see …

We’re now on the subject of eBay and Nazi memorabilia; in France, nazi memorabilia is “pornography” as we have defined it - plus the law is written such that there is the opportunity for private action. Yahoo! France faced this, and went to the US courts asking to defend them against orders from French courts because this restriction on speech would be a violation of the US constitution.

Here we are, therefore, into jurisdiction - now we’re on iCrave TV - rebroadcasting of TV on the internet being legal in Canada, but illegal in the US. What happened in this case was that US courts said that iCrave was doing illegal activity, and they shutdown, even though they were in Canada (well, a small bit in Pittsburgh).

Bringing us to Sealand. And IP mapping (Quova) - as it turns out, Quova can be used to get 80% effectiveness to filter out the French from seeing nazi memorabilia. iCrave promised they would get 99% accuracy, but not acceptable to the US court (copyright v. other restrictions).

An example from Google, where a search on stormfront yields two different results depending on your location - in Germany, the white supremacist group doesn’t appear - no formal declarations of these filters exist at Google, so we find that the technical world is zoning the internet, because the suppliers of content are being asked to filter.

China is another example, except that the ISP, essentially, is blocking sites.

Leading to an internet that is locally defined by the local jurisdiction - "national soverignity is paramount" - Treaty of Westphalia. A technologically implemented mechanism to sustain local jurisdictions.


  1. Comment: what sort of strategies can be used to deal with the tradeoff between the kind of issue advocacy that looks like pornography to filters and truly harmful content. A terribly messy problem.

  2. How does Jonathan get his research results? The trick is dialup into AT&T Beijing and then try to access sites - expensive phone connections, but informative - although it’s truly 20 questions. Eventually, the dialup strategy didn’t work, so other tricks were used.

  3. A question of power emerges from this discussion: is it really bad that states don’t get to exercise their power? Larry argues that doing this co-opts the opportunity to carry out the debate about the values underlying these choices.

  4. A reiteration of the need for sovereignity of states. Jonathan argues that the thing he’s most worried about is the internet issues. Larry picks up on something Jonathan says, by saying that the effectiveness of the filtering/zoning combination allows lawyers to get out of the complications of jurisdictions. This easy out means that we won’t address the hard doctrinal questions that really need to be addressed.

  5. Why is child porn such a big deal? Compared with bomb making instructions, etc? Lots of dodging, ducking and weaving.

I think I made a mess of this. No wonder not many people do this…..

Postscript: I confirmed with Jonathan what I thought was going on at the end: there’s at least an open question in some minds here (and Jonathan in particular) on the subject of whether sovereignty on the internet is a bad thing or a good thing - i.e. should cyberspace mirror realspace in these sorts of questions. While on one hand, we tend to think that free speech is generally a good thing, we also have examples that show that it can be terribly harmful (threats, hate speech on up though a host of consequences of the conversion of speech into various forms of commerce).

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ILaw - 2003 June 20 - Larry on code - updated as it goes along [2:31 pm]

(entry last updated: 2003-06-30 15:34:20)

A walk with Larry through the key concepts of Code and Other Laws of Cyberspace (warning, I’m new to trying this, and I’m unable to avoid injecting myself into this, so don’t expect a transcript.) (Donna’s notes)

A start on the Viadhynathan discussions of the ideology of anarchy, governed by the mind, embracing freedom - the internet as “unregulable”

A dichotomy - if, in fact, the internet is unregulable, why do we need an EFF, anyway? Because, in fact, the internet can be regulated, but you need to look at a new mechanism of control – Larry points to the list from Code; law, markets, norms (society), and architecture. Or, more specifically, implementation of technologies - the motives that underlie how we choose to deploy ways of doing things.

Smoking as a demonstration of the ways that governments employ mixed modes of control to change behavior - taxes, advertising to change mores, regulate packaging, etc.

To demonstrate that architecture is not uncommon, Larry goes into architecture as a regulator chosen by governments or their actors (my architecture lecture - 4 MB pdf). Baron Haussmann, Robert Moses (pictures in my slides), Americans with Disabilities Act

(Side note: Jonathan is "Z", at least when Larry’s picking on him)

Subtleties - the modalities may reinforce or conflict, but governments (and others) will employ these modalities to achieve their policy goals.

A questioner goes after Larry’s claim that “God” is the enforcer of architecture - no policeman is needed to maintain the modality of control that architecture represents. Granted, it can be challenged, and eventually changed, but it does make it hard to discuss, particularly if it’s subtle.

A questioner asks why the law seems to have primacy in Larry’s talk. Larry answers that discussion of modalities of control is somehow more natural in the legal domain, provided within a legitimated framework - e.g., democracy. It is, thus, more legitimated.

(Forgot to mention, Derek came up for at least the day)

Larry on libertarians - in the end, I think it reduces to unwillingness to see

So, getting back to regulability, the internet is, of course, regulable, because it can be (and in fact has been) architected. The first point - architecture has consequences. For example, on the internet, TCP/IP doesn’t let you know who sent a message - there is no identity to IP addresses. You can’t know what’s in a packed (well, you couldn’t originally). You can’t know the location of either the source or the recipient.

This arthitecture of anonymity led to the libertarian argument that the internet is not regulable, etc. Life pre-cookies, in other words. (Wow - Larry stuck his neck out and called http stateless.)

But, the conflict between what business wants to use the net for, what government wants to use the net for and what the designers put into the internet, leads to a tension that (unsurprisingly) motivates engineers to start acting to modify the architecture.

Larry’s point 1: the error of the libertarism argument is “is-sim” - the internet won’t change - and, as we’ve seen, architecture can be changed, because implementation of technology is mutable - that’s what engineers do. Government and commerce have reasons to motivate change - e.g., cookies (to get around the statelessness of http - Netscape to ease the life of commerce servers), packets sniffers (to see the content of traffic - Larry’s Morpheus server story), and IP mapping (Jonathan’s research into blocking).

(Hypothesis: Larry throws Jonathan’s name into the lectures as often as possible, because he’s used to Jonathan tuning out and he wants to make him jump - a classic lecturer’s trick. Empirical evidence shows, so far anyway, that it still works on Jonathan, too!)

These three changes, among many, many more, take away more and more of the anonymity of the internet - and the consequences of the architecture have now changed the internet into a more regulable space - so much for “is-ism.” And, therefore, we better start paying much more attention to the implications of changes in the architecture.

A question on cookies and the Hamadi case: rephrased as “is the cookie a violation of rules or laws?” And the answer is, generally, no. But, the unintended consequences of these changes may be unattractive (note to self - this is a key set of ideas around the ESD notions of engineering systems, something that I need to expand upon). DoubleClick has learned from the questions that their use of cookies raised, and the FTC & norms/reputation (as elements of other modalities of control) have influenced these changes.

Larry’s point 2: the modalities of control interact. With e-mail spam as an example - libertarians believe in free speech, so keep the law out of email. In the early days of the internet, the small homogeneous internet community flamed the first advertising e-mails. But, with the influx of the hoi-polloi into the internet, the norm against e-mail ads vanishes and spam emerges. Responses include white hat vigilantes (real-time black hole lists, other tech fixes) but all their actions really do is make things worse. And, it looks like censorship, an ideological violation - and it works to get you off (John Gilmore story - sp?)

What if a law could reduce the market value of spam? Wouldn’t that allow us to avoid using the arhitecture? Say, Larry’s spam labeling act? Although we aren’t going to talk about that for a while, it appears.

Larry’s summation:

  1. Code is law

  2. Code is plastic

  3. No law can beget bad code

  4. Good law can avoid bad code (maybe)


  1. The US is moving away from respect for public law, so why is the primacy of law asserted? Larry: I am a pessimist; you are right, the law is losing out and perverting many important and fundamental values. (Unspoken: the law is undermining itself because of this failure to reconcile what law does and what consequences emerge)

  2. An ex-network admin from a university describes caving in to Orbs, whose egos got away from the notions of cooperation - the damage of the vigilante groups. Spews (sp?) vs. Paul Vixie’s group are contrasted - leading to a notion that at least governments have to justify what they do, while vigilantes don’t have to.

  3. Another example of (il)legitimacy - the influence of US politics upon the global internet is discussed. Larry points out that the internet is the most efficient mechanism to export the US vision of free speech. Should we homogenize the network protocols, or should we allow jurisdictions to dictate the architecture? An open question.

  4. The expansion of the vigilantiism to the level of international jurisdiction issues. This leads us into a further discussion of jurisdiction - why isn’t it just like the Atlantic ocean (doesn’t the US Law of the Sea still obtain?) Larry points out that location is tied to many of the notions of jurisdiction, and thus many of the natural analogies don’t work when you consider the internet, because the metaphors of location don’t really work seamlessly with these problems.

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2003 June 30 - ILaw [11:47 am]

(entry last updated: 2003-06-30 13:10:57)

Woo-hoo! Wireless access working! But it seems like there are lots of people anxiously awaiting updating of the DHCP server - Donna, for example, who’s going to be real-time blogging again, but can’t get in yet.

ILaw starting (9:00 PT with Larry hosting).

  • Cory Doctorow points to an interesting LATimes editorial: Labels May Face Risk in Piracy Suits [pdf]

    Labels and artists are widely viewed on Capitol Hill as victims of rampant piracy by millions of users of file-sharing networks. And anonymous file sharers are easy to demonize.

    But the real people sued this fall by the Recording Industry Assn. of America may have sympathetic stories to tell. That could turn sentiment on Capitol Hill at a time when some lawmakers are eager to narrow the reach of copyright law and expand consumer rights.

  • Yikes! Check out this idea from Boinb-Boing: Japanese mags take on “digital shoplifters” - essentially people are using their cellphone cameras to take pictures of something they see in a magazine, rather than buying it - and the Japanese a cracking down - Japan’s ‘digital shoplifting’ plague - "Together with Japan’s phone companies, they are issuing stern posters which warn shoppers to be careful of their ‘magazine manners’."

  • I see that Ed already made the point I was raising about the endless spy v. spy game the RIAA is playing - based on this Washington Post article: Piracy Dragnet

  • Things that new technologies give: Coming Soon: A Horror Show for TV Ads [pdf]

    Yet the world of TV advertising is about to become a lot more scientific. On June 2, personal-video-recorder outfit TiVo (TIVO ) unveiled an analytical tool that can tell advertisers, agencies, and networks not only how many people tune in for a show but whether they’re watching the ads. Unlike a Nielsen rating, which relies on surveys filled out by viewers, TiVo’s system tracks what a viewer records and tunes into, even when the channel is changed — although, thankfully, it still doesn’t know if you head for the kitchen for something to eat.

  • Salon has a very funny opinion piece today: Why the U.S. must invade Canada — now

    It didn’t support the war, it’s soft on pot and gays, its economy is rolling and U.S. troops are bored. Anyway, reasons to invade countries are no longer needed!

  • Salon has an interview with John Cougar Mellancamp on the state of music: Ain’t that America?

    So I go in there and they ask me a few questions about the record. Then all of a sudden the guy says to me, “You wrote a song that took some potshots at the president.” I said, “Whoa, motherfucker! I didn’t take any potshots at anybody, that’s not my style. I’m not yelling from the back of the crowd or giving somebody the finger. That’s not what I do.” I said, “Listen, I wrote a song and got the lyrics out of any newspaper in the country.” He said, “Well, you saw what happened to the Dixie Chicks.” I said, “Listen, people have died in World War I, World War II, the Korean War, Vietnam and a bunch of little wars in between so that people will have the freedom to speak out, and then the administration gets on the news and says there’s a price for freedom. Yeah, and these dead guys have already paid for it. For people to drive by those women’s houses [the Dixie Chicks] and call them on the phone and threaten them is criminal. What the Dixie Chicks did was legal.”

  • KaZaA 2.5 Released, with incentives for sharing licensed content: Sharman Networks Launches Kazaa V2.5

  • Somehow, I wouldn’t be crowing about getting the BSA’s support, but then again, I’m not as clueless as the RIAA tries to be: IT Industry Execs Support RIAA Efforts To Protect Music On-Line

  • Although it’s not grounds to ignore the EU “right of reply” rules, a small reprieve for bloggers is described in this Wired News article: Bloggers Gain Libel Protectio (Speaking of which, I heard Declan on NPR’s ON the Media yesterday on this subject.)

  • Declan’s arguing that Microsoft is abandoning their laissez-faire attitude in private in order to expand their hegemony to set-top boxes: Microsoft’s new push in Washington

  • Looks like the EU is at least pausing their headlong rush to emulate US software patenting: Software patent vote delayed

  • Via Slashdot: a federal circuit court of appeals decision has apparently upsheld a shrinkwrap EULA the prohibited reverse engineering!

    A U.S. Supreme Court decision could call into question a common practice among software companies: studying competitors’ products to improve their own offerings.

    The legality of this practice, called reverse engineering, is in question after a lower court found that a software company had violated a shrink-wrapped license contract when it reverse-engineered a competitor’s piece of software.

    Last week, the Supreme Court decided not to hear the accused software company’s appeal.

    The opinion from the DC court: Bowers v. Baystate - TechLawJournal on the denial of cert.

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2003 June 30 [1:47 am]

(entry last updated: 2003-06-30 02:08:42)

Cheating on time, I guess, since it’s still yesterday here in California…

  • The NYTimes discusses the conflicts around "trusted computing:" A Safer System for Home PC’s Feels Like Jail to Some Critics [pdf]

    The most interesting suggestion of this article is that Apple may be electing to use its choice to echew DRM hardware (in favor of software) may end up being used as a competitive threat to the Wintel platform - a very clever move, if true, since I know that I will definitely vote with my wallet on this issue.

    But by entwining PC software and data in an impenetrable layer of encryption, critics argue, the companies may be destroying the very openness that has been at the heart of computing in the three decades since the PC was introduced. There are simpler, less intrusive ways to prevent illicit file swapping over the Internet, they say, than girding software in so much armor that new types of programs from upstart companies may have trouble working with it.

    [...] “Microsoft’s use of the term `trusted computing’ is a great piece of doublespeak,” said Dan Sokol, a computer engineer based in San Jose, Calif., who was one of the original members of the Homebrew Computing Club, the pioneering PC group. “What they’re really saying is, `We don’t trust you, the user of this computer.’ ”

    [...] How consumers will react to the new technology is a thorny question for PC makers because the new industry design stands in striking contrast to the approach being taken by Apple Computer.

    Apple has developed the popular iTunes digital music store relying exclusively on software to restrict the sharing of digital songs over the Internet.

    [...] Apple only has a tiny share of the personal computer market. But it continues to tweak the industry leaders with its innovations; last week, Apple’s chief executive, Steven P. Jobs, demonstrated a feature of the company’s newest version of its OS X operating system called FileVault, designed to protect a user’s documents without the need for modifying computer hardware.

    Mr. Jobs argued that elaborate hardware-software schemes like the one being pursued by the Trusted Computing Group will not achieve their purpose.

    Even the Darknet paper is cited.

  • Patents in the news: Protecting Ideas in the Insurance Business [pdf]

    In 1998, after hearing a legal challenge to a patent for a way of pooling mutual fund assets, the United States Court of Appeals for the Federal Circuit ruled that methods of doing business could be patented. Since that ruling, known as the State Street Bank decision, applications for business-method patents have begun transforming the way products are created and marketed.

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June 29, 2003

2003 June 29 [10:10 am]

(entry last updated: 2003-06-29 23:10:40)

Drove down to Monterey today to take in the Monterey Bay Aquarium - a fabulous place. I’d post a picture or two, but I cannot get my Mac to grab the 80mm CD that my Mavica uses, even though the Apple site says that the drive accepts standard geometry (i.e., round) 80mm and 120mm CDs. There must be a trick, but I’ve gone just about as far as I dare pushing the thing into the drive. *Sigh* - I think I really got some good pictures of the jellyfish exhibit, too.

  • Karen pointed me toward this Mike Lukovich cartoon (from the June 27 Atlanta Constitution) that was in todays’s NYTimes Week in Review. Sort of an accompaniment to this report on the RIAA lawsuit push: Making Pirates Walk the Plank [pdf]

  • Harry Crushes the Hulk [pdf] (Slashdot discussion: Harry Potter and the Entertainment Industry)

    Here’s what’s wrong with kids in the digital age. They live in front of their TV and PC screens. They steal music online. Their attention span is zilch. They multitask on everything and concentrate on nothing except video games. They will buy any trashy product that the media goliaths can sell them, then drop it as soon as the next big hype comes along.

    That’s merely the short list of hard-wired assumptions that were short-circuited by last weekend’s publication of “Harry Potter and the Order of the Phoenix.”

    [...] The question is: How do all those lovely entertainment-seeking kids weaned on “Harry Potter” grow up to become thieves? Surely, they know that stealing copyrighted songs and movies is akin to shoplifting sweaters at the Gap. There is no single explanation, of course, and there is no acceptable rationalization that can excuse theft. But it’s no secret that music piracy spread as CD prices rose and teenagers were enraged to pay roughly the same price as a “Harry” hardcover for a dozen or so tracks of which 10 might be filler.

    [...] This is a lesson that seems to be lost on a cynical entertainment industry that places Pavlovian marketing above creativity, on the assumption that young consumers don’t know the difference. Many of them do know the difference. There is a lot for grownups to learn — and those in Hollywood most of all — by reading the books, not merely the grosses, spawned by Harry Potter.

  • I wonder if writing this piece was a term of employment for this CNN (a division of TimeWarner-AOL) intern: Why I’ve stopped sharing music. After all, this is EXACTLY the response that the RIAA is hoping to get for their lawsuit orgy. On the other hand, there is this closing statement:

    Still, when I hear a timeless Beatles classic on the radio and then go home to look for it on Pressplay or ITunes and it isn’t there, I tend to longingly eye the Kazaa icon that still sits on my desktop, beckoning me to return to piracy.

    Only fear and Dan Peng’s ordeal keep me in line.

    In the face of demand and with the incentives of fear, how long before a formalized, yet random and cryptographically protected, IP spoofing mechanism (or some other anonymizing trick) becomes a part of KaZaA or one of the open source projects?

  • Derek jumps back into the copyright/property fray with a comment that heads into the uses of technological alienation and the dichotomy between the intangibles of expression and the reality of products. While it may be that Derek is being facetious with this paragraph:

    What about my property? You may own the music, but I own the CD. Do you get to tell me how to use my property in my own home? If you made the music, does that also mean you own my CD player?

    But he’s exactly framing the issue that DRM raises - is it really the case that, just because the expression is supplied in a digital form, the copyright owner is now allowed to assert control over my property/technology by limiting what it is otherwise able to do?

    DRM plus DMCA equals a lock on my machine, and is certainly novel, if not unprecedented. For example, I could buy a 33 rpm record and play it at 45 if I wanted to - I could play it backwards to hear "Paul is dead." I could buy a piece of sheet music and elect to ignore the tempo/key/arrangement. I can buy the latest Harry Potter and flip to the end to find out who dies (or even just pick up the book and browse to learn that). But I already can’t skip the FBI warning at the outset of "my" DVD, nor can I hope to be able (legally) to shift that movie to the next digital video medium when DVDs are obsolete.

    The threat of digital copying is being used to allow publishers claim greater control over reified creative expressions, and the question Derek raises is right on - why should be throw out other elements of our legal (and moral) frameworks in favor of the dictates of copyright (a purely legislated right, I might add)? It’s the development of a workable balance, rather than the philosophical absolutes brought out at each discussion, that’s needed.

  • Thomas Friedman ties together a couple of important concepts about the Internet and the US in Is Google God? [pdf]

    In other words, once Wi-Fi is in place, with one little Internet connection I can download anything from anywhere and I can spread anything from anywhere. That is good news for both scientists and terrorists, pro-Americans and anti-Americans.

    And that brings me to the point of this column: While we may be emotionally distancing ourselves from the world, the world is getting more integrated. That means that what people think of us, as Americans, will matter more, not less. Because people outside America will be able to build alliances more efficiently in the world we are entering and they will be able to reach out and touch us — whether with computer viruses or anthrax recipes downloaded from the Internet — more than ever.

    The Slashdot discussion, Does Google = God?, goes after the technical nonsense in the piece, but there are a few comments that did get what Friedman is really worried about - not to mention at least one good science fiction reference: No, But Google IS Multivac…. (The Last Question, one of the referenced Multivac stories, is a great read (alternative link to text.)

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June 28, 2003

2003 June 28 [7:30 pm]

(entry last updated: 2003-06-28 21:57:33)

Made it to Palo Alto for ILaw next week (though it took me far too long to get my rental car - strike Budget from the list - and finding the Hotel California was harder for me than I expected - too long since I’ve been to Stanford) Saw Jonathan on the plane; he clearly had better traveling arrangements and was long gone <G>

  • Slashdot documents the hazards of changing media formats in midstream: EMI and Sony Lose Lawsuit Over Crippled Music Disks. The suit in question was in Brazil, and a comment suggests there has been a similar outcome for a recent French suit.

  • Matt discusses the analog hole in books (among many other things), exposed by the scanning and posting of the latest Harry Potter in MS Reader format.

    Is this really the analogue of the "analog hole?" I would argue that this is merely a demonstration that the value of e-books (and the rights to make and distribute them) is possibly overvalued. Just as I have been arguing that a key to the music copying problem is the fact that the industry has failed to deliver something distinguishable from a ripped MP3, this action may merely demonstrate that eBooks don’t deliver anything more than an electronic Xerox. And, since there are some things (like read aloud, indexing, searches, etc.) that could be distinguishable, this suggests that the digitizing of content has to deliver more value than just what comes with a repackaging - and DRM is not a value add!

  • Slashdot picks up a significantly more interesting Harry Potter issue: Harry Potter and the International Order of Copyright: Should Tanya Grotter and the Magic Double Bass be banned? Slashdot: Tanya Grotter and the Magic Double Bass

    You might think it a good thing that Rowling can stop the Potter cloning industry, whether it is in Brighton, Bangalore, or Bratislava. Who wants to see Harry turned into a hairy troll or forced to gallivant with foreign literary figures? But on closer examination the argument for letting Potter crush his international competition is quite weak.

    The case for preventing literal copying—in which a foreign publisher simply reprints a work without permission—is strong. But Potter follow-ons are different from the American Dickens piracy of the 19th century and DVD piracy of today. Literal copies are what come out when you use a photocopier. Potter’s takeoffs are different: They either borrow characters and put them in a new, foreign context (Potter in Calcutta) or just use the themes and ideas of Potter (as in Tanya Grotter’s case) as inspiration for a different kind of story. They aren’t a direct replacement for a Potter book, the way a literal copy is, but rather a supplement or an adaptation.

    [...] Potter’s publishers, in defense of strong global copyright, would say that works like Tanya Grotter are theft, and such theft destroys the incentive to write in the first place. But the incentives argument is surprisingly unpersuasive in the international setting. To say Rowling will stop writing for fear of international parody is a difficult case to make. Only the most famous and lucrative works are parodied overseas. If an international adaptation is a sign you’ve made it rich, how can it be a serious financial deterrent for new writers?

    The truer complaint is that Potter’s overseas competitors may mean slightly less profit for Rowling and her publishers.

    A great article making an important point.

  • Cory Doctorow points out a couple of interesting things:

  • Nice analogy from The Register on the pending RIAA lawsuit threats (as well as the implicit DRM threat lying at its core): The RIAA Plays Whack-a-Mole. Its aptness will depend, of course, upon the next cycle in P2P, which clearly is going to get into encryption and anonomyzing strategies to work around the traffic analysis - after all, you didn’t want to waste those excess CPU cycles on SETI or cancer research, did you?

    Note that the community of file sharers aren’t waiting around: StreamCast vows peer-to-peer protest

  • Sounds like Larry had a good day in DC - it’ll be interesting to see if he retains his Cassandra posture this week.

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June 27, 2003

2003 June 27 [8:02 am]

(entry last updated: 2003-06-27 08:59:45)

Last day here before heading to California for ILaw!

  • A nice writeup of the leaking of The Hulk online over at the Globe and Mail: Hollywood wants pirates’ gold [pdf]

  • Siva Viadhynathan speaks on P2P power and the clash of ideologies in the networked worldover at OpenDemocracy.net. His article, the first in a series, elaborates a deeper construction of the issues in the music sharing conflict: The new information ecosystem: cultures of anarchy and closure

    But the future of entertainment is only a small part of the story. In many areas of communication, social relations, cultural regulation, and political activity, peer-to-peer models of communication have grown in influence and altered the terms of exchange.

    This is the story of clashing ideologies: information anarchy and information oligarchy. They feed off of each other dialectically. Oligarchy justifies itself through “moral panics” over the potential effects of anarchy. And anarchy justifies itself by reacting to the trends toward oligarchy.

    The actors who are promoting information anarchy include libertarians, librarians, hackers, terrorists, religious zealots, and anti-globalisation activists. The actors who push information oligarchy include major transnational corporations, the World Trade Organisation, and the governments of the United States of America and the Peoples’ Republic of China.

    Rapidly, these ideologies are remaking our information ecosystem. And those of us uncomfortable with either vision, and who value what we might call “information justice”, increasingly find fault and frustration with the ways our media, cultural, information and political systems are changing.

    [...] Where there is no rich, healthy public sphere we should support anarchistic communicative techniques. Where there is a rich, healthy public sphere, we must take an honest, unromantic account of the costs of such anarchy. And through public spheres we should correct for the excesses of communicative anarchy.

    Still, we must recognise that poor, sickly, fragile public spheres are more common than rich, healthy public spheres. And the battles at play over privacy, security, surveillance, censorship and intellectual property in the United States right now will determine whether we will count the world’s oldest democracy as sickly or healthy.

    Anarchy is radical democracy. But it is not the best form of democracy. But as a set of tools, anarchy can be an essential antidote to tyranny.

  • Who’s ready for a breath-holding contest: New RIAA Chief Should Name Digital Advisors, Says CEO Of Leading File Sharing Company. Benny Evangelista’s article, RIAA to sue individual file sharers:

    Recording industry gets personal with online music fight, raises the next tactic:

    “Don’t listen to their music. Don’t buy it, don’t share it, don’t talk about it,” read one message.

    “The record companies have made billions off the consumers,” read another post. “They have overcharged us for years. Why not boycott all new music and watch their attitude change?”

    Which reminds me - where’s my check?

  • The Java/.NET fight is starting to look like history repeated: Court curbs Microsoft Java distribution; Slashdot’s discussion is Appeals Court Sides With Microsoft On Java; The Register says Judges deny Sun’s must-carry Java bid; The New York Times’ article Microsoft Can Leave Java Out of Windows, Court Rules [pdf]; text of the ruling from FindLaw

  • Charlie Cooper joins those who as "What if SCO is right?" Surprisingly, Cooper puts together an uncharacteristically poor discussion, putting himself in the category of those who fail (elect?) to recognize that this is still a lawsuit between SCO and IBM, not Open Source. And the glee with which he chooses to portray Torvalds as some sort of a spoiled arrogant nerd makes me wonder more about Mr. Cooper than about this case. (Are we sure this isn’t a misattributed David Coursey column?)

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June 26, 2003

2003 June 26 [6:49 am]

(entry last updated: 2003-06-26 21:04:07)

  • It’s not often that Slashdot beats me to Findlaw, but they did today. The Slashdot article Law Professor Examines SCO Case, discusses this Findlaw’s Writ piece: Penguin on Thin Ice?

    Why IBM Should Win in the Fight to Save Linux by Anupam Chander of UC Davis.

  • From the Eldred Act www site: text of the Public Domain Enhancement Act; press release on its introduction;

    Slashdot discussion: Public Domain Act Introduced Into Congress

    Donna’s got a comprehensive set of links on the submission.

  • This is going to get the MPAA and others in a snit: Pioneer adds TiVo to DVD recorders. Granted, not at a cheap prince, but still. Slashdot discussion: Pioneer To Release TiVo/DVD Burner Combo

  • Via BBSpot: The Missing Future

    But there’s one group we haven’t heard from yet: The small software developers. For 25 years, these people were the lifeblood of the personal computer revolution. Their old vision is still the sexiest: Build great, innovative software, sell it to the users at a reasonable price, make millions of dollars, benefit humanity, retire young. And if you mistreat your users, you’ll loose them, because you have a hundred competitors. The old Silicon Valley was built on this dream, and it worked for two decades.

    But this dream is nearly gone. It’s getting crushed between the awful power of Microsoft, and the onrushing juggernaut of open source. A 30-person company can’t compete with Microsoft. And a 30-person company will have a hard time competing with 300 open source contributors giving software away for free and making their living as in-house developers (though it can be done).

  • The Berkman Center’s collaboration with the Program for Security in International Society at the University of Cambridge is described in the NYTimes today: A World Map to Outwit Web Censors [pdf]

    Last month the researchers agreed to collaborate on “mapping” the Internet for such blockages, whether they are imposed by governments, Internet service providers, corporations or even public libraries. The project will involve the enlistment of thousands of volunteers around the world, organizers say.

    “The general idea is that when we talk about the World Wide Web, ‘world’ and ‘wide’ are no longer to be taken for granted,” said Jonathan Zittrain, a Harvard law professor and co-director of the Berkman Center. “Our worry is that barriers are coming up left and right, and they are more likely to come up if they can come up stealthily.”

    (Looking up Jonathan and Ben’s project, I see that the Berkman Center has a new WWW look.)

    Update: WIred profiles how the Chinese Work Around Net Blocking

  • Yesterday’s Wired News had a short blurb on this topic; today’s NYTimes takes it further: Netflix’s Patent May Reshape DVD-Rental Market [pdf]

    The patent gives Netflix intellectual property protection over the technology at the core of its business: the way that a customer sets up his or her rental list; and the way the company sends the DVD’s. The patent also grants the company exclusive control over many other small parts of the process of online DVD rental.

    The patent, which was filed in 2000, has 100 claims over all. The company has other applications pending with the United States Patent Office, including one on the intricately designed envelopes it uses to send the DVD’s.

    “On the surface, the patent looks quite sweeping and quite meaningful,” said Arvind Bhatia, an analyst for Southwest Securities, a Dallas-based financial services firm. Depending on whether the patent or its enforcement is challenged in court, Netflix could use it to try to stop its competitors from setting up online rental services. Or it could charge royalties to other companies that license the patent, giving Netflix a financial advantage.

  • Here’s the current NYTimes piece [pdf] on the RIAA lawsuit push - although it’s surprising to say so, Hiawatha Bray’s piece from the Globe (below) is better.

  • William Safire continues his campaign against media consilidation, detailing in today’s NYTimes column the action on the Hill to rollback the recent FCC ruling: Big Media’s Silence [pdf]

  • After yesterday’s RIAA announcement of heightened litigation, one might wonder where the Boston Globe’s sentiments lie, given these the stories appearing in today’s paper:

    CNet has a roundup on the RIAA initiative: Record labels, Hulk target pirates

    And Wired asks: Are You in RIAA’s Cross Hairs?

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June 25, 2003

2003 June 25 [7:09 am]

(entry last updated: 2003-06-26 11:59:40)

  • Jenny Levine’s also got something on the markets for DVDs: DVD Numbers Exploding, Making Studios Lots of Money - Will They Be Smart Enough to Learn from This?

  • Hoo-hah! RIAA Threatens Orgy of Lawsuits

    A recording-industry trade group said on Wednesday it plans to sue hundreds of individuals who illegally distribute copyrighted songs over the Internet, expanding its anti-piracy fight into millions of homes.

    The Recording Industry Association of America said it hopes to curb illegal song downloading by tracking down the heaviest users of popular “peer to peer” services like Kazaa and suing them for thousands of dollars in damages.


    “The RIAA, in their infinite wisdom, has decided to not only alienate their own customers but attempt to drive them into bankruptcy through litigation. So therefore they probably won’t be able to afford to buy any music even if they want to,” said Grokster President Wayne Rosso, who added he does not support copyright infringement.

    The AP Tech Wire piece from Yahoo! is more thorough, making it clear that the plan is to kill the P2P networks by using the threat of a lawsuit to turn off all the “sources” in the network, thus starving the “sinks” - i.e., killing the cooperative elements of P2P. Slashdot channels a Washington Post article: RIAA To Sue Hundreds Of File Swappers

    (A minor point for english composition writers everywhere - while it is admittedly a quote, the opening sentence of Rosso’s quote demonstrates not only why splitting infinitive in parallel construction is painful, but also why every “not only” must be accompanied by a “but also.”)

    Late night update: News.com - Labels aim big guns at small file swappers; the RIAA newsletter - Recording Industry To Begin Collecting Evidence And Preparing Lawsuits Against File “Sharers” Who Illegally Offer Music Online (and I’m listening to a news piece on the subject on the local Fox affiliate’s late night news at this moment)

  • Donna points us to an article by Jonathan Zittrain in Legal Affairs: The Copyright Cage - wherein Jonathan tries to refute the perception that cyberlaw professionals, by definition, hate copyright - a fine writeup:

    Yes, I hate the effects of copyright on a digital revolution that heralds so much more than the banal ripping off of CD tracks. I hate that creativity is metered and parceled to its last ounce of profit. I hate that our technology is hobbled beyond its paper and other analog counterparts so that it permits us to view but not print, listen but not share, read once but not lend, consume but not create. But I can hate this situation without believing that the idea of copyright is fundamentally flawed. The framers’ vision of intellectual property (then known as “monopolies”) called for built-in limits to a creator’s exclusive rights. A copyright term, for example, would expire even if a work still held commercial value.

    [...] It’s time for us to wise up and to redraw copyright’s boundaries so that the law and reasonable public expectations fall into better alignment with one another. To be sure, this may require more, rather than less, subtlety. We should treat protections for computer software in a different way than music, for example, and lengthy copyright terms should be available only to those who bother to check in with the Copyright Office every few years. But we do ourselves a disservice by fixating on current income structures and not thinking about future possibilities premised on amazing technological advances, especially when the rights at issue concern the flows of ideas, something fundamental to free societies.

    [...] I pay my taxes. I have no idea how to calculate them, but I do what Turbotax tells me to. I’ll pay a copyright tax, too, and willingly support artists whose work I appreciate, because it’s the right thing to do and because it guarantees that more work will be made available to me. I’m not alone. So: Let’s imagine a world in which Teddy Ruxpin can say whatever he wants, where kids can play with computers that are not digitally locked down, where bars and restaurants can stop measuring their TVs and their parking lots, and where amateur webcasters can create thousands of radio stations featuring songs we like, perhaps ones that sound familiar but that have new elements to them. We’ll still buy concert tickets, books, and CDs and their digital descendants. They’ll be competing with a lot more, though-created for fun, even if it happens to turn a profit.

  • The Times Editorial today: Internet Filters and Free Speech

  • The Eldred Act is expected to be introduced today

  • Jenny Levine’s got a thorough set of links in her round-ups of the recent Supreme Court CIPA ruling: (a) Round-up of Links About SCOTUS Decision to Censor Library Internet Access, (b) More on the Supreme Court Forcing Libraries to Censor and (c) Supreme Court Forces Libraries To Censor

  • A singularly un-screed-like editorial from Richard Stallman on the SCO/IBM fight: SCO smear campaign can’t defeat GNU community

    Another SCO tool of obfuscation is the term “intellectual property.” This fashionable but foolish term carries an evident bias: that the right way to treat works, ideas, and names is as a kind of property. Less evident is the harm it does by inciting simplistic thinking: it lumps together diverse laws–copyright law, patent law, trademark law and others–which really have little in common. This leads people to suppose those laws are one single issue, the “intellectual property issue,” and think about “it”–which means, to think at such a broad abstract level that the specific social issues raised by these various laws are not even visible. Any “opinion about intellectual property” is thus bound to be foolish. (See http://www.gnu.org/philosophy/words-to-avoid.html.)

    Slashdot discussion: RMS Cuts Through Some SCO FUD

  • For archival purposes, the Amish Tech Support weblog entry on Sen. Hatch’s website copyright infringement question: Orrin Hatch, software pirate?; 8:45 AM - Closing the hatch on Hatch

    Or, you could just get the t-shirt….

  • A little more on the NetFlix patent: Netflix Issued Patent On Subscription Rental Service, the NetFlix press release, which also includes a link to the patent: US#6,584,450

    Update: A Business2.0 article: How Netflix Is Fixing Hollywood

    Even later: Wired News asks the natural question that would have been in the Business 2.0 article had the writer known about recent events: Can Netflix Patent Stymie Rivals?

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June 24, 2003

2003 June 24 [5:16 pm]

(entry last updated: 2003-06-24 17:56:28)

Going to be brief today - just listings. Hope to be back into it tomorrow!

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June 23, 2003

2003 June 23 [6:50 am]

(entry last updated: 2003-06-23 18:13:15)

  • Matt’s got a lengthy summary of the discussions around compulsory licensing around the web today, and other worthwhile points on copyright today.

  • Another great link from a blog doen’t need s clever name: Reforming copyright is a concern for everyone [alt URL] [pdf] discusses the Lucy Maud Montgomery Copyright Term Extension Act (see earlier Furdlog entry), but uses some great language echoing Charlie Nesson’s counter to the Lessig argument (my notes from last year’s ILaw on this topic):

    Supporters and opponents of copyright reform paint very different pictures of the impact of the Internet and new technologies on copyright. [...]

    While there are elements of truth in both of these positions, the emerging reality is that neither view reflects the Internet’s most significant impact — the blurring of the distinction between creators and users such that soon everyone will be both creators and users. The days of content creation resting solely with a select few movie studios, music promoters, and book publishers is long gone.

    In today’s Internet, we all access traditional content on mainstream media sites, but alongside those activities we increasingly craft emails, maintain blogs or other Websites dedicated to a dizzying array of topics, publish our digital photos, contribute to community chat rooms, opinion sites, or open source software initiatives, and share our attempts at music creation with the world. In short, we both consume content and create it.

    This new reality is spearheading a profound change in the world of copyright as the widespread realization that copyright matters grows. No longer an issue best left to lawyers, individuals are taking an interest in copyright policy as never before. This leaves policy makers with the challenge of balancing competing stakeholder interests in an environment where everyone believes that they too are stakeholders.

  • An article on fanfic from the Washington Post: Harry Potter and the Copyright Lawyer [pdf] [via a blog doesn't need a clever name] - a reminder of where fiction and storytelling come from.

    The explosion of these part-original, part-borrowed works has set authors of fan fiction against some media companies in a battle to redefine the line between consumers’ right to “fair use” and copyright holders’ rights to control their intellectual property.

    “We don’t grow up hearing stories around the campfire anymore about cultural figures. Instead we get them from books, TV or movies, so the characters that today provide us a common language are corporate creatures,” said Rebecca Tushnet, an assistant professor of law at New York University who has written extensively on intellectual property.

    Fan-fiction creators say their work represents the emergence of an art form that takes advantage of all that the Internet was built for. They invoke the First Amendment and say that under fair-use laws they have a right to create what they want as long as they are not trying to profit at the expense of the original material. But some book, music and movie houses argue that fan fiction is more plagiarism than high art and have demanded that operators of Web sites remove the offending material.

  • So here we go with the hideous task of having filters in libraries: Effort to Equip Libraries With Internet Filters Is Allowed [pdf]

    (Wired News also has the AP Wire)

    A divided Supreme Court ruled Monday that Congress can force the nation’s public libraries to equip computers with anti-pornography filters.

    The blocking technology, intended to keep smut from children, does not violate the First Amendment even though it shuts off some legitimate, informational Web sites, the court held.

    The 6-3 ruling reinstates a law that told libraries to install filters or surrender federal money. Four justices said the law was constitutional, and two others said it was allowable as long as libraries disable the filters for patrons who ask. The court described pornography in libraries as a serious problem.

    Supreme Court opinion: United States v. American Library Assn., Inc. - Jenny Levine’s weblog comments start here; here’s the Copyfight posting; and here’s Lisa Bowman’s take; Slashdot: US Supreme Court Upholds CIPA

  • The New York Times has an article on the changing role of stardom in the world of engineered entertainment culture: Major Stars Not So Crucial as Concept Trumps Celebrity [pdf] [infographic]. Granted, the title cites celebrity rather than artistic merit, but clearly the pressure is there to be an American Idol instead of a singer-songwriter. And the discussion of the changing balance of power in the movie industry is striking.

  • Larry Lessig gets some NYTimes ink in Congress Finds Rare Unity in Spam, to a Point [pdf]

    As with a variety of other technology debates about privacy and copyright, Congressional positions on spam have little to do with political ideology and turn more on interpreting the balance between the rights of consumers and the rights of the businesses that sell to them.

    “This hasn’t resonated with standard partisan positions,” said Lawrence Lessig, a professor of law at Stanford University. “It’s an advantage because I think something will happen. It’s a disadvantage because just anything will happen.”

  • A look at reputation on the Internet: More Companies Pay Heed to Their ‘Word of Mouse’ Reputation [pdf]. Slashdot: NYT On Online Reputations

  • The RIAA reports that an amicus brief has been filed in the Verizon case by the "’principal victims of the piracy "epidemic."’"

  • IDG has a little more on the Verizon DMCA subpoena fallout on the Hill: Senate committee to address ISP subpoenas. I especially like how the RIAA moves the goalposts here:

    “Nothing in this quasi-subpoena process prevents someone other than digital media owners — you could be a stalker, you could be a telemarketer or a spammer — from using this quasi-subpoena process to (gain information) on an Internet subscriber, including our children,” Brownback said. “I have no interest in us shielding those who have committed piracy. My concern … is the clear threat of unintended consequences.”

    The RIAA issued a written statement on Brownback’s remarks, saying it looks forward to a committee hearing about the “numerous reported security and privacy holes in peer-to-peer networks.” The RIAA noted that the federal judge in the Verizon case questioned how a peer-to-peer user could expect privacy when that person is opening his computer to permit others to download his files.

  • S-1046, the Preservation of Localism, Program Diversity, and Competition in Television Broadcast Service Act of 2003, cleared the Committee on Commerce, Science, and Transportation last week, as reported in this snotty article from The Register: Senate decries FCC big-media coup. Reportedly, Clear Channel is displeased.

    Clear Channel Cries Foul For Being Singled Out In Senate Bill

    “The Senate Commerce Committee decided to ignore the Constitution and the best interests of radio listeners across the country,” Clear Channel SVP/Government Affairs Andy Levin said after the committee approved a bill that will specifically require Clear Channel to divest stations. A provision of the bill would require the company to sell off stations anywhere it is over the legal limit, even though all of the company’s station acquisitions complied with FCC rules when the deals were done. “We are deeply disturbed that the committee would attempt to force companies to divest assets simply because it decides to change the rules in the middle of the game,” he said. “It is bad precedent and bad policy. This is an attempt to single out one company for being successful and punish them for playing by the rules. We certainly hope and expect the full Senate will reject this highly controversial and dangerous measure.”

    In other news, noises are being raised about Univision, too: As Univision Looks to Radio, a Debate Over How Big Is Too Big [pdf]

  • Here’s an offensive little opinion piece from Michael Kanellos: SCO: Darl-ing for dollars. While this article poses as a discussion of the SCO IP fight, he stoops to some rather nasty ad hominem rhetoric to make his point:

    But when you boil these arguments down, they all say the same thing: SCO is bad, and we are good. The attitude reflects what I like to call the Engineer’s Fatal Flaw: the belief that you passed physics, so you think you know everything.

    My college roommate in my sophomore year, an electrical engineering student named Mike Foster, helped me coin that one. He had an answer for everything, and often it involved the death penalty, a flat tax or some other clean, simple solution that would have been absolutely insane to try in real life.

    Don’t get me wrong. I stand in awe of people who can design transistors or even who can put up drywall. But there is arrogance inside the scientific mind, and it rarely knows when to stop. It’s no coincidence that Herbert Hoover and Jimmy Carter are the only engineers to ever sit in the White House.

    While I would be the first to agree that there are definite limits to engineering education that weakens engineers in policy discussions, I resent the implication that “the scientific mind” is the sole source of “simple, clean solutions” that are “insane to try” - with the current federal administration a case in point.

    And, in the end, that’s really the only point of the article - he acknowledges that the evidence of wrongdoing is not yet available (because SCO has been very coy), so all he really did with this piece was slam the community that I assume CNet News is hoping to attract. A peculiar strategy, I would say.

    (On the subject of SCO, see UserFriendly’s tribute to Gary Larson from Sunday)

  • CNet also discusses HR-2517, the Piracy Deterrence and Education Act of 2003: New bill injects FBI into P2P battle - the RIAA’s Cary Sherman’s thoughts on the bill - Slashdot: Piracy Deterrence and Education Act Introduced

  • Hiawatha Bray takes on Orrin Hatch in today’s Boston Globe: An antipiracy idea self-destructs [pdf]

    Senator Orrin Hatch, Republican of Utah, made a rather spectacular fool of himself last week during a hearing on electronic data piracy. Too bad for Hatch, but good clean fun for any technology writer who enjoys asking the question: Can they do that?

    [...] In short, you could manage to shut down a relative handful of machines this way, but not enough to matter. For real disruption, you’d need to embed your self-destruct system right in the computer’s hardware.

    Remember last year’s proposal by Senator Fritz Hollings, Democrat of South Carolina? He wanted to force computer makers to build in devices that would simply prevent privacy. It seems Hatch wants to go further - perhaps a dollop of plastic explosive glued to the motherboard?

    Wysopal says that such a computer, connected to the Internet, could indeed be remotely wrecked.

    ”The thing is, you’d have to make a law that would force people to buy that machine,” he said. ”No one in his right mind would buy a computer that someone could disable remotely over the Internet.”

    [...] So in answer to our question - yes, you can do that. Next question: Why?

  • I didn’t get to post this earlier, but it’s worth a read: Among Film’s Ghosts, Its Future. [pdf] Karen’s got links the the Texas Instruments DLP site, which has some great Flash graphics showing how the technology works - micromachined silicon.

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June 22, 2003

2003 June 22 [5:28 pm]

(entry last updated: 2003-06-22 18:02:22)

My home machine has given up the ghost, so it’s laptop posting this weekend - without the mouse addon that I count on for making this easy. And it’s, once again, raining on a Cambridge weekend…

  • Some new legislation to consider: HR-2517Piracy Deterrence and Education Act of 2003 - just to give the FBI something to do with their free time, police P2P networks. Slashdot discussion: Bill Would Let FBI Police File-Sharing. Note that the discussion includes this response on the question of copyright legitimacy that is worth a gander.

    Why, exactly do you think that copyrights are *wrong*? I don’t mean the specifics — “xx years is too many, xx would be better”, “xxx company abuses it” — but why is the actual concept the use of an idea being controlled by the person who thought up the idea (and if anybody has a better def of copyright, feel free to tell me) not good?

    As a member of the faction of /. that thinks that IP as a government-sponsored institution should be abolished, I feel obligated to respond.

    Copyright isn’t wrong, per se. It’s flawed. It is based on the idea that any idea that can be had will only ever be had by one person, and then grants control of that idea to the one person that dreams it up for a limited period of time. While I don’t think ideas should be controlled, let’s take a look at whether or not the base idea is correct. [...]

  • Slashdot also has a rundown on the latest in the Jesse Jordan story: RIAA Not Done With Jesse Sordan (Larry Lessig has posted something as well: the scapegoats

  • The Washington Post has an article suggesting that, maybe, just maybe, DeCSS isn’t the end of Western civilization: DVD-Piracy Paranoia Proves Counterproductive [pdf].

    In other words, this unauthorized, unlicensed software makes DVDs more valuable and useful to me.

    The DVD industry, however, sees things a little differently.

    “If enough people do . . . not buy licensed players, then the economic framework of the licensing framework goes down the drain,” said Robert Sugarman, a partner with Weil, Gotshal and Manges who represents the DVD Copy Control Association. His argument: Without the control over DVD playback that this licensing provides, the industry will see its profits nibbled away as people steal DVDs.


    But two things don’t quite make sense in the DVD association’s position.

    [...] The second is the focus on DeCSS. You don’t need DeCSS to steal a DVD; you can create a “disc image,” an exact, bit-for-bit copy, and use that to make new copies. Furthermore, nobody seems to use DeCSS anymore. Current unlicensed playback software relies on a software library called “libdvdcss,” which was written mostly from scratch after the release of DeCSS. And the DVD copy association’s lawyers have yet to go after this code.

    Slashdot discussion: Legitimate uses for DeCSS

  • The Salon article that suggested that iTunes would be the death of innovation in music because of the pick and choose option has generated a lot of letters; and Billboard suggests that there are plenty of artists who won’t let it happen anyway: Top Artists Balking At A La Carte Downloads (Slashdot discussion: Artists Protesting Single-Song Downloads

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June 20, 2003

2003 June 20 [6:51 am]

(entry last updated: 2003-06-20 08:42:39)

  • Donna’s got more on the Senate’s reactions to file sharing; this time it’s John McCain.

  • Radio & Records is trumpeting the results of a contract study asserting that downloading is the root of all the industry’s woes, as well as showing that the industry’s information campaigns are leading to more converts: Why Are Music Sales Falling? Downloading (alternative site). Conducted by Edison Media Research, this will the the third such National Record Buyers Study: NRBS 2 (summary)

  • It’s official, now: ‘Pirates’ told to pack it in - RIAA/RIAA warns individual swappers; now that the names have been handed over and action started, how long before the RIAA lawyers assert mootness in further appeals, regardless of the earlier claims - from this opinion (page 46):

    Verizon also contends that it will be irreparably harmed absent a stay because the revelation of its subscriber’s identity would moot the appeal and deprive Verizon of its statutory right to further judicial review. See Center for Int’l Envtl. Law v. Office of U.S. Trade Rep., 240 F. Supp. 2d 21, 22-23 (D.D.C. 2003) (”defendants have made a strong showing of irreparable harm because disclosure of the documents in question will render any appeal moot”); Center for Nat’l Security Studies v. United States Dep’t of Justice, 217 F. Supp. 2d 58, 58 (D.D.C. 2002) (granting stay of disclosure order in FOIA case where compliance with order “would effectively moot any appeal”). RIAA counters that effective relief could still be granted and that the case falls within the “capable of repetition yet evading review” exception to mootness. RIAA has stated, moreover, that it will not argue mootness on appeal. Hearing Tr., Mot. to Stay, 02-MS-0323 (Feb. 13, 2003), at 44.

  • An interview with RealNetworks’ Rob Glaser on their online music business: The Sound of Stolen Thunder

  • A Slashdot report makes some interesting allegations: Senator Orrin Hatch a Pirate? based on the Wired News report, Orrin Hatch: Software Pirate? where we find:

    The senator’s site makes extensive use of a JavaScript menu system developed by Milonic Solutions, a software company based in the United Kingdom. The copyright-protected code has not been licensed for use on Hatch’s website.

    “It’s an unlicensed copy,” said Andy Woolley, who runs Milonic. “It’s very unfortunate for him because of those comments he made.”

    [...] However, by Thursday afternoon Hatch’s site had been updated to contain some of the requisite copyright information. An old version of the page can be seen by viewing Google’s cache of the site.

    “They’re using our code,” Woolley said Wednesday. “We’ve had no contact with them. They are in breach of our licensing terms.”

  • From today’s USA Today on the influence of fans on The Hulk: Fans have the muscle to shape the movie [pdf]

    “I used to hate the Internet,” [Marvel studios chief Avi] Arad says. “I thought it was just a place where people stole our products. But I see how influential these fans can be when they build a consensus, which is what we seek. I now consider them filmmaking partners.”

    [...] Analysts say a handful of self-professed film geeks not only influence how well a movie does; some also affect the way the films are made. Liv Tyler’s character was cut from a scene in the second Lord of the Rings after thousands of online fans protested the original script, which had her character appearing in a battle that she was not part of in the books.

    And when Arad decided to give last year’s Spider-Man organic web shooters instead of the man-made devices his alter-ego, Peter Parker, used in the comic book, he had to plead his case to the Internet community to stop a revolt.

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June 19, 2003

2003 June 19 [6:53 am]

(entry last updated: 2003-06-19 06:53:42)

I’m back! What a terrible thing moving an office is.

  • I see that Sen. Hatch has retreated…slightly: Senator OK with zapping pirates’ PCs

    But Hatch noted that his proposed law permitting wide-scale destruction of computers used to download illicit files from peer-to-peer networks was still on the table. “I do not favor extreme remedies–unless no moderate remedies can be found,” Hatch said in the statement.

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June 18, 2003

2003 June 18 [6:02 am]

(entry last updated: 2003-06-18 10:28:20)

Just a reminder: msl1.mit.edu is being physically relocated this afternoon, so Furdlog will be offline starting around 1:00PM and won’t be back until the nameservers pick up the new IP address that goes along with relocation - probably Thursday AM.

And I forgot to mention: I had a great evening yesterday getting together with Matt and Donna to talk weblogs, IP and future plans. Karen, who’s just getting started, had a great time, too. We got to hang out at one of my perennial dining establishments and the home to my favorite mole poblano outside of Monterrey: Casa Mexico.

  • Via a blog doesn’t need a clever name: V2V, a Video Sharing Syndicate Conspiracy


    Technological innovation came along with new regimes of restricting the use

    of media and rebinds the liberating potential to ever more advanced systems

    of command and control. Technological change is always accompanied by great

    enthusiasm and new esthetical paradigms that in the last instance reinvent

    the wheels to carry forward the same old industries.

    [...] We believe in images with open sources: Reaccessing the cinematic heritage

    of other generations, broadcasting the general intellect, empowering

    collective story-telling, changing the views, fast sharing of content, skills

    and resources, enabling multiple connections between creative nodes and networks.

    Production and distribution will finally merge into a process of sharing

    your images with others.

    Virtual images that everyone can edit, change, forward, rewind and PLAY.

  • From today’s Onion What Do You Think? interviews: FCC Media Deregulation

    Yeah? Well, if this

    is such a big problem,

    why aren’t we hearing

    more about it on the news?

    Mitch Ahearn

    Auto Mechanic

  • Mary Hodder takes Larry to task on something he glibly said in his response to the Rimmer article. She’s right, too - while the cultural artifacts in the public domain are at least 75 years old, it would be really hard to defend the argument that it’s irrelevant to current culture (luckily, Larry does say "much of current culture") Writing off the great literature, music and art of more than 75 years as largely irrelevant to our culture is a bit of an overstatement, I would say.

    The operational distinctions between irrelevance and invisibility are hard to perceive when you’re trying to develop a political movement. But irrelevance means that the movement will never take off, while invisibility means, as Mary points out, that there’s hope for as long as people are still willing to think and learn.

  • Also from Salon, yesterday’s Farhad Manjoo piece: Can anyone stop the music cops? - a discussion of a proposed piece of legislation known as the Brownback Bill that’s apparently making the rounds - Salon’s copy is here

    The draft prohibits the Federal Communications Commission from requiring tech companies to include DRM technology in their devices; for example, if the bill becomes law the FCC would not be able to force electronics manufacturers to make CD players that play only copy-protected CDs.

    The provision seems to be a direct response to the efforts of Sen. Ernest F. “Fritz” Hollings, the South Carolina Democrat who attempted, last year, to mandate tech companies to produce devices that obey DRM schemes; Hollings’ bill delighted the entertainment industry, but it didn’t get very far in Congress.

    The Brownback proposal also requires all copy-protected products — for instance, CDs, DVDs, e-books or digital songs bought from the Apple Music Store — to be clearly labeled with their restrictions. Finally, the proposal would prohibit copyright holders from easily getting the names and addresses of people they suspect of copyright infringement on the Internet — this is the section of the bill that Verizon is most interested in. If the bill becomes law, content owners would be required to first file a civil lawsuit against an anonymous alleged digital thief; only if a judge decides the case has merit will the Internet user be identified.

  • A contrarian take on iTunes from Salon: iTunes — the "i" doesn’t stand for innovation

    I bought Tool’s most recent album, “Lateralus,” because I couldn’t get the harsh yet slightly ethereal guitar of “Schism” out of my head. The repetition of its play on a hard-rock station, like the repetition of the final guitar segment, had me whipped. After listening to the song over and over, I turned to the other tunes on the album where, I discovered, the real integrity and uniqueness of Tool’s artistry resided. In the end, my favorite song on the album, and perhaps the best by any measure, is a track I have never heard on the radio.

    Sound familiar? How many times have you bought a band’s album for an overplayed song, only to discover that the more gratifying tunes are the ones you’ve never heard before? But now that iTunes and other online music vendors have finally arrived, don’t expect to experience that same epiphany in the future. iTunes is helping to usher in an era where songs are sold individually, thus putting an end to what I call “bundled innovations.”

    This is an echo of the argument that, with internet news services, people will actually be less informed because their ability to direct their news services means that they will miss reading things that they didn’t expect to want to read. While I agree that it’s a problem, it’s also the case that people have found other mechanisms to ensure that they get a reasonable exposure to what’s going on.

    In fact, one might even argue that P2P sharing has to become the advertising/promotional side of the iTunes-inspired record company of the future. After all, once Clear Channel buys up the last radio station, how else will there be a market for anything but songs on the charts?

  • CNet reports on some recorganization at a leading DRM vendor: Macrovision splits into two units

    The Santa Clara, Calif.-based company on Tuesday said the Entertainment Technologies Group will include video and music technology and the part of its consumer software division that handles its SafeDisc protection technology. The company’s Software Technologies Group will comprise its enterprise software division and SafeCast protection technology.

    Macrovision, which makes copy-protection software, said it decided to reorganize because entertainment and software companies have different protection needs.

    This is actually a quite interesting claim, that software and entertainment have "different protection needs." I’m going to have to give that some thought….

  • Think someone explained "conflict of interest" to Mary Bono? Lawmaker downplays RIAA job rumors

  • To read Sen. Hatch’s published statement from yesterday’s hearings (rescheduled) you wouldn’t expect to get this Slashdot story, Sen Hatch Would Like To Destroy Filetraders’ PCs, but the AP Wire piece cited [pdf] does in fact say the following:

    The chairman of the Senate Judiciary Committee (news - web sites) said Tuesday he favors developing new technology to remotely destroy the computers of people who illegally download music from the Internet.

    The surprise remarks by Sen. Orrin Hatch, R-Utah, during a hearing on copyright abuses represent a dramatic escalation in the frustrating battle by industry executives and lawmakers in Washington against illegal music downloads.

    During a discussion on methods to frustrate computer users who illegally exchange music and movie files over the Internet, Hatch asked technology executives about ways to damage computers involved in such file trading. Legal experts have said any such attack would violate federal anti-hacking laws.

    [...] “If we can find some way to do this without destroying their machines, we’d be interested in hearing about that,” Hatch said. “If that’s the only way, then I’m all for destroying their machines. If you have a few hundred thousand of those, I think people would realize” the seriousness of their actions, he said.

    “There’s no excuse for anyone violating copyright laws,” Hatch said.

    The New York Times has a variant: Senator Takes Aim at Illegal Downloads [pdf]

    Illegally download copyright music from the Internet once, or even twice, and you get a warning. Do it a third time, and your computer gets destroyed.

    That’s the suggestion made by the chairman of the Senate Judiciary Committee at a Tuesday hearing on copyright abuse, reflecting a growing frustration in Congress over failure of the technology and entertainment industries to protect copyrights in a digital age.

    Is somebody not getting his way? Sounds like somebody needs a nap — or maybe needs to wake up! I’m sure there will be more about this as the day develops….

    Update: Dave Winer does the correct thing and links to the BBC article: Destroy ‘pirate’ PCs, says politician

    Donna’s got links to a class going on at Harvard now that’s generating followup discussion of this topic: Hatching a Plan to Tame P2P

  • Saw this on the front page of the Financial Times, but it’s not yet hit the US press apparently: Microsoft takes 15 spammers to court:

    Fifteen complaints were filed in the U.S. and U.K. against alleged spammers said to have sent out more than 2 billion e-mails. Microsoft held press conferences on both sides of the Atlantic to promote its campaign against “flooding Microsoft’s customers and its systems” with spam.

    Wired has the Reuters newswire: Microsoft Ups Ante in Spam Fight; NYTimes: Microsoft Sues 15 Organizations in Broad Attack on Spam E-Mail [pdf]

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June 17, 2003

2003 June 17 [7:06 am]

(entry last updated: 2003-06-17 13:34:45)

  • Speaking of copyright terms, here’s the final report submitted in March on C-36 (see Amendments to the Copyright Act), the Lucy Maude Montgomery Copyright Term Extension Act (she authored Anne of Green Gables and her unpublished diaries would enter the public domain next year; see also the article in the Gowlings IP Report) [via FOS News] - there’s something over at Volokh, too - Larry Lessig notes that at least some of this act has been curbed: people having an effect

  • Something to remind me of what I learned reading The Audible Past about sound recording and how the intention(s) behind it evolve in culture and art: The Beatles’ Producer, Still With Stories to Tell [pdf]

    “When I joined EMI,” he [Sir George Martin] said, “the criterion by which recordings were judged was their faithfulness to the original. If you made a recording that was so good that you couldn’t tell the difference between the recording and the actual performance, that was the acme. And I questioned that. I thought, O.K., we’re all taking photographs of an existing event. But we don’t have to make a photograph; we can paint. And that prompted me to experiment.”

  • The online discussion of this seemed like just a nasty joke, but it’s now reached the AP Wire: Mary Bono’s Raring to Run RIAA. At least the article points out the potential pitfalls associated with her choice to be part of a piracy & IP caucus while essentially running for the RIAA position - and just how many of the Sonny Bono copyrights did she inherit?

  • From firstMonday: The dead poets society: The copyright term and the public domain by Matthew Rimmer

    This paper extends the approach of analysing the cultural politics of copyright disputes elaborated in an earlier article [16]. It looks at the intersection of power, culture, and technology. As James Boyle observes, there is a need to focus upon the politics of intellectual property:

    “Like most property regimes, our intellectual property regime will be contentious, in distributional, ideological and efficiency terms. It will have effects on market power, economic concentration and social structure. Yet, right now, we have no politics of intellectual property - in the way that we have a politics of the environment or of tax reform. We lack a conceptual map of issues, a rough working model of costs and benefits and a functioning coalition-politics of groups unified by common interest perceived in apparently diverse situations.” [17]

    A lengthy paper that invites careful consideration, so I’m going to leave it at that - for the moment. I look forward, in particular, to hearing what Donna makes of this one.

    SO Far:

    • This is an extensive deconstruction of the majority and dissenting opinions in Eldred v. Ashcroft, focusing variously on historical, economic and other perspectives for interpretation.

    • It explicitly seeks to fully embrace the messiness of copyright in each of these contexts.

    • It raises a host of interesting and important questions that should be fodder for discussion.

    Here are Larry Lessig’s comments: firstmonday on eldred where he makes the reasonable response to Rimmer’s call for radical reform - how to build a constituency/political base for radical change when we can’t even get incremental change on the radar?

  • Benny Evangelista’s article today says it’s time for the record industry to change: Music industry changing its tune:

    Teenagers who download from Internet finally forcing record industry to adapt [pdf] - a look at “Generation D,” for “digital” and “download.” There’s a lot of interesting stuff in this article, but here’s a newly-recurrent meme:

    “Fundamentally, the business model is going to shift,” said [the Yankee Group's senior analyst Michael] Goodman. “The fact that they have been able to hold prices on CDs at a high level masked the fact that the business has become grossly inefficient. The customers are saying, ‘You know what, that’s your problem, not my problem. I don’t want to pay for your inefficiencies anymore.’ ”

  • The performing rights societies’ comments on HR.1417, To amend title 17, United States Code, to replace copyright arbitration royalty panels with a Copyright Royalty Judge, and for other purposes (also known as "The Copyright Royalty And Distribution Reform Act Of 2003") is available at Mi2N.

    This is an interesting bill (sponsor Lamar Smith, co-sponsors Reps. Berman and Conyers), in that it appears to be working to remove the Copyright Arbitration Review Board and to replace it with an administrative judge. The performing rights societies are largely focusing upon making it more difficult to get the judge involved in disputes over royalty payments, but there are a lot of specifics into the details of process and the review of new digital devices (see section 1010, for example) that are worth consideration.

  • Today’s Tangled Web describes SingingFish.com, a search engine specifically designed to find media files and, upon a check of the WWW site, an effort to one-up BigChampagne in the business of tracking online media consumption. Here’s their inaugural report/press release: Singingfish Streaming Media Report

    I look forward to learning how this file search service is distinguishable from that of the recently sued college students. As a subsidiary of Thomson (see the SingingFish fact sheet from the press kit), I imagine that there’s a lot going on beneath the surface of this Billboard announcement. In particular, recall that Thomson owns the MP3 patents and has exercised them in interesting ways.

  • It just keeps getting better: SCO suit now seeks $3 billion from IBM; The Register’s writeup is a little more graphic: SCO pulls AIX licence, calls for permanent ban. The CNet piece points out that this remains a trade secrets case, not a copyright complaint. Moreover, it includes this quote from Linus Torvalds:

    Torvalds said in an e-mail interview that the Linux developer community’s process is transparent and called on SCO to reveal what its specific complaints are.

    “It’s not our side that isn’t identifying the code. We’ll work damn hard to identify everything they care to name,” Torvalds said. “In fact, the source control system is out there in the public, and it identifies the source and the reason for patches,” mentioning the BitKeeper repository he’s used for the past two years to keep track of code in the heart, or kernel, of Linux.

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June 16, 2003

2003 June 16 [6:08 am]

(entry last updated: 2003-06-16 18:26:19)

A notice to my occasional readers: the MSL’s offices are being relocated Wednesday afternoon of this week. This means that, for a period of time starting Wednesday into Thursday, Furdlog (and, in fact, all of msl1.mit.edu) will be inaccessible - partly because the machine will be down and partly because the machine will be getting a new IP address. Once everthing propagates through the nameservers, you should be able to find me again - note that furd.com also points to my office machine, so http://furd.com/furdlog might be worth trying if http://msl1.mit.edu/furdlog doesn’t work - one may update faster than the other.

  • Mary Hodder points to an article on Muse.Net - apparently an inside-out MP3.com, with each user’s machine acting as the music server:

    “The goal here is to get the Linux hacker community to support the music community,” Chief Executive Robert Lord said, referring to the zealous group of programmers working on an alternative to Microsoft Corp.’s Windows software.

    Mediacode has developed an online service to start the ball rolling. Dubbed Muse.Net, it lets people with high-speed Internet connections listen to the music on their computers from any other computer online.

  • Amazing! They really did it: SCO Terminates IBM’s Unix License [Slashdot]; SCO cancels IBM Unix license [CNet] - and with a striking threat that should lead to some interesting court reaction and interpretation:

    SCO said that the termination of the AIX license means that all IBM Unix customers also have no license to use the software. “This termination not only applies to new business by IBM, but also existing copies of AIX that are installed at all customer sites. All of it has to be destroyed,” [SCO's Chris] Sontag said.

    SCO’s press release

  • From Business 2.0: The MP3 Economy: How labels and artists divvy up your MP3 dollar They’ve got a nice graphic, but let’s recap the data here:

    Participant Cut
    The Site 40%
    The Publisher 8%
    The Label 30%
    The Middleman 10%
    The Artist 12%

    A few other points

    • The publisher gets mechanical royalties: note that, irrespective of all other transactions, this fee is set and is not actually a percentage - the Copyright office sets these in regulations

    • The implication of the article is that the Label’s cut is purely performance royalties - it would be interesting to see if that’s really true. Given the effort that’s gone into getting the labels to sign up, I’m sure there’s more to this transaction than just royalties.

    • A truly striking claim is associated with the Artist’s cut. While the effects of recoupable costs are cited (bringing some artist’s cuts down to 8%), we find this claim:

      In many major-label contracts, charges for “packaging” and promotional copies are subtracted from the artist’s cut, leaving the talent with a measly 8 percent. BMG, Universal, and Warner have announced plans to do away with such deductions for digital downloads.

  • Jack Balkin points out that the closing weeks of this Supreme Court term are going to be busy!

  • Larry Lessig points to this essay by Evan Hunt on the notion of the commons, suggesting that the kind of cross-disciplinary characterization of the commons issue in Hunt’s essay is a good thing.

    While I agree that crossing disciplines is important (how could someone in ESD disagree with that!!), and that Evan’s drawing upon Zodiac to make some strong points about environmentalism is well-placed, I would definitely hesitate to agree with the thesis that environmentalism is all about the commons. In fact, when you read Evan’s essay through, he is actually talking about something that is subtly similar to the commons, but is actually something else - community.

    Note the examples that Evan uses - stealing salt and pepper shakers from restaurants, undermining parental authority, spamming and other intrusive advertising - activities to undermine socially acceptable behaviors. Moreover, these actions and others of their ilk are defended by making a showing of value derived from market (rather than social) norms (too cheap for anyone to care, get kids to buy more, if even one responds, it’s paid for itself).

    The kind of irresponsible/destructive behavior that Evan describes and then parallels with the issues that Larry holds so dear does not necessarily arise out of malevolence. If it were malevolent, it probably would be easier to cope with. Rather, what we’re facing, for example through the appropriation of culture via IP laws and regulation, is a loss of community and shared appreciation for the responsibilities that are owed to one another outside the domain of the marketplace.

    Of course, why kick about this? In the words of Gordon Gecko, “Greed is good,” right? Apologies to my friends at Sloan, but there really are things that the market cannot value or, more accurately, there are things that societies shouldn’t allow markets to value - the environment is one; culture is another. It’s just the wrong working metaphor, leading to a variety of untoward behavior. And movements like environmentalism and, dare I say, Creative Commons come into being to develop ways to develop institutions and instruments that can harmonize human action across these different domains, rather than allowing a single perspective/institution/mechanism to overwhelm another.

  • In addition to William Safire’s op-ed on the FCC (Regulate the F.C.C.; pdf), we have an interesting lesson on the implications of media concentration for the "news" business: To Interview Former P.O.W., CBS Dangles Stardom [pdf] - what it might take to get to interview Jessica Lynch - itemized in the graphic to the right!

  • Recall that I expressed surprise (corrected by a reader from the Radcliffe Institute for Advanced Study at Harvard University) that Johnny Hallyday was still in the music business. Today’s New York Times gives an in-depth look: A French Original With Studied American Flair [pdf] - don’t miss the photos!

  • Following up a little more on the iPod music distribution issues raised by BoingBoing, we have this tidbit from Business 2.0: iPod: Digital Music’s Windows Desktop [pdf], introducing the idea of iPod bundling and placement:

    Since record companies are desperate for new means of distribution, shouldn’t they be looking for access to the iPod rather than just iTunes? It’s a classic bundling arrangement. Consider how software makers have pursued big deals to get on the Windows desktop because they know that preinstalled material gets the user’s attention. Take this idea to the iPod: What would a broadcast network pay a television manufacturer to ensure that the network was the first station anyone saw when turning on a TV? Apple has an opportunity, first of all, to release a series of customized, high-priced iPods. This would bring large fees into Apple’s coffers. The record companies would get a premium, plus outstanding distribution. And for both companies, such a move would mark a first step toward even bigger deals.

  • From the weblog roll:

  • A thoughtful consideration of the difficulties of selling downloadable classical music from the New York Times: Adventures in Downloading Haydn [pdf]

    I still wonder what the market is. Having purchased a range of classical music from iTunes for this article, I have a motley playlist of individual tracks that are hard to identify. When I play them, one blends into the other without a break, as on a classics lite radio station. Does anyone really want to download individual opera recitatives, or spend $40 on a download of a complete “Gioconda” that comes without a reliable cast list or libretto? I’m not sure what the future of classical music is, but I suspect that only aficionados can get much benefit from a site like this, and they probably don’t need it.

    At Musicmaker, we didn’t have the manpower to fix every mistake on the site, and it gradually became clear that whatever the secret to selling music on the Web was, we hadn’t found it. What we did have, after nine months, was the beginning of a knowledgeable, detailed data base of a lot of EMI’s classical music catalog. In a last-minute e-mail exchange in the hour or two after the layoffs had been announced and before we had to vacate the premises, my Reston colleagues and I joked about selling it. If only we had called Apple.

  • From dmusic.com (see also this O’Reilly Network listing): A Musician’s Take on File Sharing, DRM, and Copyleft Licensing by Miriam Rainsford (iriXx) (of Madonna ReMix Project fame)

    As a musician I find the notion of using DRM technology abhorrent — not only because of the risk that my works could be locked up indefinitely by technological means, despite my signing a non-exclusive distribution contract. Under anti-circumvention laws such as the DMCA and the forthcoming EUCD, it could well prove impossible for me to share my own work with my friends, or to distribute DRM-controlled content to another publisher.

    But aside from the legal and practical aspects, I believe DRM to be against the spirit of music-making. Music is made for enjoyment — and it is very difficult to create music without an atmosphere of freedom. Musicians just want to be free to create, without being concerned over having their music — or the tools they use to make music - tied down or controlled by devices which may well have detrimental effects on audio quality. Perhaps the reason Apple has been so notoriously silent on the topic of DRM is that the Mac OS dominates the creative market. To implement DRM on a Mac platform would risk alienating their primary customers in the pro audio sector.

    I believe there exists a better alternative to DRM and technological methods of control, in the form of copyleft licensing.

  • It’ll be interesting to see if anything comes of this challenge to SoundExchange’s pending royalty-collecting monopoly: Comments Of Royalty Logic, Inc. Objecting To RIAA Webcasting Settlement (their earlier filing: Royalty Logic Objection to RIAA) (RoyaltyLogic WWW site - working?)

  • Declan McCullagh raises the spectre of an Internet “Fairness Doctrine” in this article on a pending set of European regulations: Why Europe still doesn’t get the Internet.

    I don’t know what to make of this, frankly. As Declan points out, this is an unenforceable set of rules, but it also betrays a peculiar double-think on the subject of weblogs and their importance. If you want weblogs to be important, then there is some sort of responsbility that accompanies that rise in relevance. Now, I would agree that the Council of Europe is out to lunch here, but the article touches on something that is going to have to be addressed if weblogs reach the heights that some expect to achieve.

    Here’s the Slashdot discussion: Europe To Force Right of Reply On Internet Communication

  • CNet passes along a Reuters feed indicating that Sony is starting to sell music online in Europe - but only in the U.K: Sony to offer music downloads in U.K.. Mark Mulligan puts in his $0.02: Sony Get on Board the Digital Download Bandwagon

    As things currently stand, EMI have a competitive advantage over its competitors at a time when margins from other revenue channels are contracting. It was only be a matter of time before the other major labels responded in kind. Although Sony Music’s deal with OD2 effectively only brings it in line with what the other 4 majors were already doing, in the context of Sony’s previous reluctance to commit, this is a significant first step forward.

    What will be interesting to see is whether the remaining three majors decide to expand their subscription service relationship with OD2 or to instead follow the EMI / i-Tunes model and make a larger amount of their catalogue available for a-la-carte download.

    In terms of direct impact on the European market, Apple’s i-Tunes service has had less of an impact than EMI (at least for the near-term) but its apparent success has undoubtedly caused something of a sea change in the way many in the music industry view digital distribution. An irony is that the combined effect with EMI, is that it might result in the UK’s online music offerings looking more comprehensive than those in the US.

  • Slashdot also notes that the CD price-fixing settlement has gone through - checks coming in the mail! From the APWire piece cited:

    A federal judge approved a settlement agreement Friday in a music antitrust lawsuit that will result in more than 3.5 million consumers receiving nearly $13 each.

    [...] The ruling, however, does not stipulate exactly how much consumers will receive or when the checks will be distributed. More than 3.5 million consumers filed claims, now estimated at $12.63 each.

    The order/opinion doesn’t seem to be online, but here’s D. Brock Hornby’s 2003 opinion directory listing - here it is from Findlaw [via TechLawAdvisor]

  • As Slashdot notes [NYTimes pdf] (see also today’s Boston Globe: Open season on open source; pdf), the SCO deadline has passed with SCO revoking the Unix license to IBM’s AIX, and IBM declaring the right irrevocable. Slashdot also reports a possible review of the SCO claim unencumbered by the restrictive NDA that SCO has demanded of other reviewers: Settling SCOres

    CNet has an interview with Darl McBride of SCO: Why SCO decided to take IBM to court

    But ZDNet has the best commentary: Who Really Owns Unix? (a look at the Open Group’s stake in this fight) and It’s a Matrix moment for Linux. From the second piece:

    It’s a Matrix moment for Linux programmers. SCO is telling them that they haven’t been breathing air for the last few years.

    Their brains have been floating in tanks, feeding the parasitic robots (read lawyers) who are calling the shots at financially strapped SCO. Now the money is short, and it is time to harvest those brains.

  • Although it’s unlikely that anyone missed it, the Microsoft announcement that there won’t be any newer IEs means, as this Register article indicates, that it’s time to get Mozilla for your Mac and learn it. Here’s the CNet article, which points the finger at Safari: Microsoft: No new versions of IE for Mac

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June 13, 2003

2003 June 13 - plus a new stab at talking through technological alienation [8:08 am]

(entry last updated: 2003-06-13 18:41:35)

Milestones: Today’s a mini-wedding anniversary (Karen insisted we get married on a Friday the 13th). More surprising to me: Furdlog will be one year and one month old on Monday (missed the one year anniversary already!)

  • Hoot! Larry points to this joke to close the week: Simple Guide to the A-List Bloggers

  • After that long-winded writeup, something short: Microsoft Flouting DOJ Settlement?, a Slashdot discussion of this Washington Post article: Rivals Say Microsoft Flouts Deal [pdf]

  • Donna points to Jack Balkin’s discussion with Orin Kerr on First Amendment and Copyright.

    After churning through all of these, we come to Prof. Balkin’s conclusion:

    Because the DMCA alters the traditional contours of fair use by allowing private parties to do a technological end run around traditional fair use doctrines, it abridges what Justice Ginsburg called the “built-in free speech safeguards” of copyright law, and therefore violates the First Amendment.

    Now, even though I think I know what Prof. Balkin is talking about, this is a tortuous way to end his argument. At the risk of a dangerous hubris, let me try a different way of framing it. (Although, as I expect you can see, it’s not terribly terse <G>)

    The ways in which we perceive/receive the variety of human creative expressions have been continuously modified by our technological advances. The invention of writing eventually made story-telling, for example, into a solitary experience because the story-teller’s expression of the tale could be put down on paper and retrieved at the reader’s convenience, rather than requiring that s/he wait on the story-teller to arrive and tell his tales. Similarly, we have technologies that allow us to experience a wide variety of creative expression without having to rely upon actual physical human performances - recorded music, broadcast television, etc.

    The injection of technological intemediaries into the process of converting artistic expression into personal experience has dramatically expanded the scope of expressions available to all of us. The power of these technologies is such that they are almost invisible to us - consider that fact that we speak of “playing” a CD, when in fact nothing could be further from the truth. I might play a piano or a guitar, but all I do when I “play” a CD is to supply a machine-readable data source into a device designed to generate electrical pulses that are converted by other devices into air vibrations.

    The very invisibility of this technology is a wondrous thing, affording us an incredibly varied set of cultural experiences, but these technologies can also become a dangerous crutch. Because we have adopted these technologies so seamlessly, we have failed to recognize the vulnerabilities that come with reliance upon them and, thus, we have also failed to think about the necessary defenses. These expressions, which form the basis of our cultural experience and are the foundation upon which we build our next generation of art and culture, lie behind a curtain of technology that we assume obeys our will as easily as the “Play” button does on our DVD player.

    But, the DMCA and other instruments are forcing us to realize that this technological curtain is not one we can casually push aside as we seek to employ the expressions of the present to create the future. The technology that has given us such opportunity has blinded us to the fact that we depend upon its cooperation as we seek to built upon the past. And the broader, less technologically savvy members of society are only now learning that these technologies can be employed to serve masters other than the user, in ways that are inconsistent with our sense of what is the socially appropriate application of cultural expressions.

    It is this inconsistency between what our socially constructed notion of “fair use” & other acceptable ways of exploiting creative expression and what we have engineered into the instruments we use to experience these expressions that is causing us such difficulty today. And, I believe that what Prof. Balkin means with his closing sentence is that the use of a legal stricture to protect the ways that technology can alienate us from an expression is a First Amendment violation because, even though we have allowed technology to intermediate between us and cultural expressions, technology should not be used to lock those expressions away from the public domain.

    Those who argue that “fair use” is not a guarantee of access

    are purposely perpetuating the illusion that the technologies of distribution have nothing to do with the expression whose protection is being debated. Because of the way that we conceptualize these artifacts, access is implicit. I purchase a music CD because I expect that my player will turn it into sound - otherwise, it’s just another AOL coaster. (Remember why the it was so funny to learn that there were those so swept up in the Window 95 PR push that they bought the software even through they didn’t own a computer?)

    The technology and the expression go together, because only together does the human experience emerge that was the artist’s creation. The DMCA suggests that the two can be split apart without harm, and Prof. Balkin is saying that doing so is implicitly a First Amendment violation because it disables the development of the experience (speech) from the expression (the digital distribution)- and thus Justice Ginsberg’s conditions for safeguarding traditional fair use are not met.

    Part of solving this problem is going to be confronting the fact that the distributed artifact is not a creative expression without access to the technology implicit in the artifact’s design. Essentially, just as we think about protecting speech, we are now in an era where we have to think about the need for similar protections around the technologies employed in generating speech. (Think about it - why do we worry so much about literacy? Not to sell books! See Stallman’s The Right To Read)

    Until we get past this, there will be hopeless confusion throughout all our social institutions. Markets won’t price efficiently, laws won’t get made or enforced sensibly - and worse, the societies that figure it out first will have significant advantages over those that cling to this attractive, but crippling illusion.

  • Ernie’s got the iPod/music bug….

  • Salon’s got letters in response to their article on Mexican CD piracy (Furdlog entry) online today. Two striking excerpts from a set of worthwhile reads (interestingly, none supporting the RIAA position): this one from Jim Hassinger

    Here you have a whole black-market industry, with entrepreneurs using dozens of burners to manufacture CDs and then offer them for sale, and Jack Brown can’t tell the difference between that and file sharers? This market could be controlled by rather obvious enforcement means. But file-sharers don’t make money on their shares, and, despite the best efforts of the RIAA, will not be erased from the market, only out-competed.

    and from Keita Broadwater

    However, I was surprised at the implication that piracy will mean the end of musical tradition for Mexico or any other culture. I think the opposite is true. That’s the good part about the music industry’s possible fall.

    Music was here long before record companies existed and will be here long after these companies close their doors. The music industry stagnates musical development by focusing on a few artists and styles. Artists focus on popularity and money instead of their art. So, I won’t lose much sleep if U.S. record sales go down by 50 percent tomorrow.

    I know that artists have to eat like the rest of us, but I don’t believe they have to be rich.

  • Cory Doctorow points (and recommends) to this book: Burning Down the House: Ripping, Recording, Remixing, and More!

  • From the Music Industry News Network: Movie Archivists And Preservationists Urge Congress To Save Orphan Films

    A diverse group of movie archivists, preservationists, and creators sent a message to Congress today that without reforms in the copyright system, the majority of the nation’s historical motion picture heritage faces destruction as the film on which it’s printed crumbles away. They expressed their support for a proposal that would allow ‘orphan films’ - those that are no longer under active copyright management - to enter the public domain so that they can be copied, archived, and preserved.

    See the letter at the Eldred.cc site. Recall Prof. Volokh’s message yesterday - this is part of the way a consitutuency gets developed.

  • The Wired Magazine article from yesterday’s log gets some Slashdot discussion today: Bill Gates, Entertainment God? One commenter points to this Business Week article, Commentary: Why Microsoft Can’t Be the Bully on This Block [pdf], but I think I’m still with this thought:

    Only Microsoft would invent a house where you need to ask permission to act like you live there…

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June 12, 2003

2003 June 12 [7:46 am]

(entry last updated: 2003-06-12 13:35:36)

  • Mark Mulligan resurfaces with his thoughts on the Apple-Roxio rumor going around.

  • Speaking of Prof. Volokh, Derek’s taken the time to read and summarize some points of the professor’s upcoming law review article.

  • A depressing thought came to me while reading Eugene Volokh’s recent posting on Larry Lessig’s copyright proposal. Prof. Volokh knows that copyright is not a property right, yet he uses a case drawn from property rights to argue that the taking clause would probably not obtain if, upon passage of the Eldred Act, current copyright holders sued to retain the now-current terms of copyright ownership. Is the “copyright=property right” meme that strong? Or are mineral rights somehow appropriate analogs?

    And, more importantly, what’s next in the process of selling this political agenda? In particular, what’s the compelling argument for the public domain, expressible in an elevator speech? (Donna’s thoughts from Copyfight)

  • Donna’s posted a provocative set of links here: Mary’s Back

  • At least his heirs don’t have copyright - a look at the Newton Project, putting Newton’s writings online: Word for Word on the Web, Isaac Newton’s Secret Musings [pdf]

  • Online culture from the NYTimes (again, something I can’t find in the RSS feeds - I’ve got to be missing something here): Voyager to a Strange Planet [pdf]

  • A FindLaw guest commentary on the Dastar decision, with an upbeat perspective on the Supreme Court’s views of the public domain’s importance: In a Trademark Case, The Supreme Court Recognizes That Art Flows From Multiple Sources

  • Hoist by one’s own petard: AICN: who’s a pirate?

  • Piling on: more reasons to be sorry I missed Tuesday’s dinner.

  • Technology Review has this article on Waste: Will ‘Waste’ Push File-Sharing Further Underground? [pdf]

  • Saw this in the dead tree Wired; now it’s online: Bill Gates, Entertainment God. After a chilling "either/or" look at two digital homes, a discussion of Microsoft and the glorious performance of Windows media, leading to this caveat:

    The catch: Your standard digital content (MP3 music files and MPEG-2 video files) becomes Microsoft digital content. These files are backward-compatible and work with other players, like WinAmp, but to get all the benefits, you need Media 9. With this kind of presence - from the server to the media player - the company not only sells more operating systems, it has more control. Specifically, the ability to enable or limit the portability of digital content however it sees fit. Which is where Microsoft’s digital rights management tools come in. Poole’s Digital Media Division spent $250 million developing software that on first glance seems to completely undermine the mission of the Media Center Edition. If the Media Center gives consumers control of their digital media, the DRM software takes it away.

    Microsoft’s DRM allows the studios and labels to inexpensively - thanks to modest licensing fees - put a smart wrapper on their intellectual property. The DRM gift wrap carries instructions that let the gift giver (the content providers) limit or restrict when and where the gift can be opened and how it can be used. For example, Miramax could create instructions that prevent your new Gangs of New York DVD from being archived or streamed. Universal might permit one digital archive copy of a Queens of the Stone Age CD but no burning or sharing.

    With an uphill row to hoe:

    But you can’t have a two-faced job and not make enemies. There’s still an awful lot of Microsoft bashing in Hollywood. “I spent a lot of time with Will, and I just never felt like I had a straight conversation with the guy,” says a former top executive at a content provider. “He would say, ‘We will do this and that, and why don’t you do this,’ and it was always the same thing: ‘Use our stuff; don’t use anybody else’s.’ Microsoft has a tremendous opportunity to be a choke point for personal computers, and they have used every opportunity to take control of that choke point.”

    An anecdote in the article describes a situation that I’m betting no Microsoft executive has ever faced before:

    The relationship between Hollywood and Microsoft, while improving, is fraught with miscommunication and conflict. Consider a meeting that took place at Disney last summer. Poole was hoping to get the company to license Microsoft’s DRM toolkit. In his view, Microsoft was offering to help expand the market for Disney movies and protect them from pirates. The Mouse house seemed open to the notion - and then asked Poole how much Microsoft would pay for the privilege of being able to play Disney content on its devices.

    Puts an interesting spin on this Reuters article on CNet News this morning: MusicNet to adopt Microsoft’s format.

    So, it’s definitely coming; it’s just a question of how intelligently it’s sold to the market. Will the customer know what he’s buying upfront, or will he only discover the limitations post sale? And, how will he react in either case? (See Ed Felten’s postings today and Tuesday for more on the state of play in DRM)

  • Does SCO have the guts/brass to do this: SCO Gives Friday Deadline To IBM is a Slashdot story citing a Reuters report:

    “If we don’t have a resolution by midnight on Friday the 13th, the AIX world will be a different place,” SCO President and Chief Executive Darl McBride told Reuters.

    “We’ve basically mapped out what we will do. People will be running AIX without a valid license,” said McBride, who offered no specific details on what action SCO would take.

  • PBS has posted a Q&A with Larry Lessig of Stanford and Matt Oppenheim of the RIAA on the question "Is downloading copyrighted music tantamount to stealing?". There’s a Slashdot discussion: Lessig And RIAA Answer NewsHour Questions

    I particularly like the way that Matt Oppenheim suggests that "Intellectual property should not be treated any differently than other property." in this response, yet blithely argues that scouring WWW sites for MP3s, wherever they might be, is not a trespass in this response, where he says

    We are not accessing anybody’s “property,” and we are certainly not violating anybody’s personal rights. We are doing exactly the same thing that every other infringer is doing.

    Oppenheim wiggles pretty well when asked how much of the copyright infringement lawsuit awards ends up in the hands of artists. But he also identifies a target that possibly should be higher on our radar in more than one answer (here, for example):

    Under the DMCA, the U.S. Copyright Office examines every three years whether or not this provision requires additional exemptions beyond those built into the statute. To date, nobody has suggested that copy control technologies have locked up a work that should be in the public domain.

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June 11, 2003

2003 June 11 [6:55 am]

(entry last updated: 2003-06-11 07:53:11)

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