2003 July 13

(entry last updated: 2003-07-13 20:47:38)

A summer cold has laid me low, but I’m in the office to catch up on some work. Thanks for all the comments on the ILaw summary; Yochai reminded me by e-mail that "pragmatist" has a formal definition that does not mean an absence of values. See OED pragmatism –

Politics. Theory that advocates dealing with social and political problems primarily by practical methods adapted to the existing circumstances, rather than by methods which have been conformed to some ideology.

I should have expected that the ILaw team would be particularly careful about wording.

  • Doc Searls points to an argument over the end-to-end discussion: Misunderstanding the Internet

  • The BBC profiles one of the creators of the MP3 format, Karlheinz Brandenburg: MP3 creator speaks out; Slashdot discussion: MP3 Creator On Sharing Music. Nothing terribly radical here, but a name to know.

  • From a blog doesn’t need a clever name: What’s holding back online music?, a Wharton-based analysis; and an article on the next 321 Studios product: DVD ‘ripper’ pre-empts DMCA ruling

  • Derek’s spending a lot of time thinking about P2P music: What Napster Should Have Said (Part 1), related to his posting on Posner and Commercial Skipping

  • Matt points to an article from the Journal of the Copyright Society: What’s So Fair About Fair Use?

    In fact, tonight I’m going to modestly propose that when it comes to derivative works, fair-use doctrine is a red herring and we should just dump it.

    […] Though the bundle of legal rights we have created for this purpose is known as intellectual property, it’s worth reminding ourselves that these rights stand on a somewhat different footing from the property rights our founders held to be so sacred. In fact, the Constitution doesn’t refer to them as property at all. Their protection is not one of the ends of government, but an instrumental means to an end.

    […] The real question isn’t whether we should grant authors the power to exclude uses of their work they don’t like. The question is whether we need to give them the power to exclude infringing derivative works in general.

    […] Framed in this way, the problem is akin to that of deciding when real property should be protected by a liability rule as opposed to a property rule. One of the big advantages of private ownership is that it leads to efficient allocation of scarce physical resources. But private property can also be used inefficiently.


    The simple fact is that owners of intellectual property tend to be control freaks, and regard anyone who would erode this control as an enemy. “It’s my creation,” they will say. “What right do others have to tamper with it?” To this I say: It’s your creation if you keep it secret. Once you release it to the rest of us, it enters our minds and becomes ours as well. As Jefferson put it. “it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it.” So long as their right to a share in the profits of derivative uses is enforced, I suspect that copyright holders would actually be better off in a system in which everyone was allowed to exploit the work. When set free to do so, people will find ways to extract value from intellectual properties that original authors, too fearful of sullying their creations, would never dream of. They do not like this. So they say. Try it and they may, I say.

    Well worth a careful read!

  • The next piece in Siva Viadhynathan’s essay on the ideologies of online culture is online: ‘Pro-gumbo’: culture as anarchy

    Culture is anarchistic if it is alive at all. It grows up from the common, everyday interactions among humans who share a condition or a set of common symbols and experiences.

    We often mistake the collection of end-products of culture – the symphonies and operas, novels and poems – that have survived the rigorous peer review of markets and critics as the culture itself. Culture is not the sum of its products. It is the process that generates those products. And if it is working properly, culture is radically democratic, vibrant, malleable, surprising, and fun.

    These two different visions of culture explain much of the difference between the assumptions behind information anarchy and information oligarchy. Anarchists – and many less radical democrats – believe that culture should flow with minimal impediments. Oligarchs, even if they seem politically liberal, favor a top-down approach to culture with massive intervention from powerful institutions such as the state, corporations, universities, or museums. All of these institutions may be used to construct and preserve free flows of culture and information. But all too often they are harnessed to the oligarchic cause, making winners into bigger winners, and thus rigging the cultural market.

  • More on Shawn Fanning’s efforts to resurrect Napster: Napster, Audio Fingerprinting, and the Future of P2P (see July 8 entry) A related press release: Relatable To Build Databases Of 5 Million Song Fingerprints From All Media Guide Extensive Music Archive

  • Slashdot discusses the recent NYTimes article on Xbox hacking (my ref): Xbox Hackers, Linux, the DMCA, And Modchips

  • Intel v. Hamidi gets a NYTimes writeup (trespass to chattels!): Fighting for the Right to Communicate [pdf]

    He [William M. McSwain] said that he eventually came to believe that Mr. Hamidi’s case was the most important Internet dispute ever litigated. “If Intel could use trespass laws, without demonstrating any damage to its equipment,” he said, “then this would have huge implications for all kinds of communications taking place on the Internet.”

    The article that Mr. McSwain published in the May 1999 issue of The Harvard Law Review validated Mr. Hamidi’s case. “It is ironic,” he wrote, “that a technological giant such as Intel, which has helped to usher in and has greatly benefited from the cyberspace age, now expects the state to protect it from a creature of its making.” The article attracted attention.

    […] “To us, it seemed very clear that if Intel won this case we’d all be at risk of losing the fundamental value of the Internet, which is its openness,” said Lee Tien, a senior lawyer for the [Electronic Frontier] foundation. “Imagine what could happen if at any time any site could say, `We don’t want you to visit, we don’t want you to search, we don’t want your e-mail.’ The Internet would fragment.”

    […] Despite broad support for the decision, there are those who believe this is a dangerous legal decision, one that will open the floodgates to spam, erode employers’ powers and give unions free rein to woo members by e-mail. As part of a longstanding policy, Intel would not allow the law firm that handled the case, Morrison & Foerster, to comment on the decision. But in one of its briefs for Intel, the firm wrote that the basic issue was property rights. “Ownership of private property carries with it the right to prevent others from using this private property to harm the owner,” it said.

  • The Register also discusses the updated Domesday Book project: BBC Domesday Project saved for Nation. This was a project to record the state of the UK in what was then a reliable format: a laser videodisk readable on an Acorn. Certain (predictable) problems ensued, but luckily there weren’t copyright issues with the change to a new format: as these Slashdot comments remind us, we are not so lucky today.

  • More details on the copyright suit in Indiana over course packs: Copyright fight unfolds near campus [pdf]

  • From The Register’s Andrew Orlowski on the Webcaster’s Alliance lawsuit: Radio royalties: the ticking timebomb under the RIAA

  • From yesterday’s NYTimes – a story that mirrors the issues raised in the privacy lecture at ILaw: A Web Site Causes Unease in Police [pdf]

    The law generally draws no distinction between information that is nominally public but hard to obtain and information that can be fetched with an Internet search engine and a few keystrokes. The dispute over Mr. Sheehan’s site is similar to a debate that has been heatedly taken up around the nation, about whether court records that are public in paper form should be freely available on the Internet.

    In 1989, in a case not involving computer technology, the Supreme Court did allow the government to refuse journalists’ Freedom of Information Act request for paper copies of information it had compiled from arrest and conviction records available in scattered public files. The court cited the “practical obscurity” of the original records.

    But once accurate information is in private hands like Mr. Sheehan’s, the courts have been extremely reluctant to interfere with its dissemination.