2003 August 29

(entry last updated: 2003-08-29 13:31:26)

  • Yet another "revolutionary" music CD delivery format: Sony Disc Manufacturing Successfully Manufacture Kool Keith’s Newest Release “Thee Undatakerz” Using Consumer Surround Sound Inc. Revolutionary CS2CD Format

    When asked about the accompanying CS2ADC technology on the CS2CD, Mr. [William] Grecia [Consumer Surround Sound CEO] continued to add “CS2ADC prevent full 1:1 faithful cloning of a CS2CD disc as a whole. Unlike other restrictive commercial ‘copy protections’, CS2ADC allow full CD audio playback in PC’s and DVD players. CS2ADC is the perfect balance between retaining consumers ‘fair use’ rights, and the music industry need for a retail product that consumers cannot (re)create with a CD/DVD burner. Mass piracy and duplication of this format is not an issue for my clients.” When asked about the significance of a major record label’s replication facility manufacturing the CS2CD, he concluded “Major record companies can use this format to boost and revive retail. My indie clients are replicating at the same places the big guys are. My next goal is to make a big impression at the upcoming CES show.”

    Wonder what the "gotcha" is? Going to have to do a little research.

  • I missed Marci Hamilton’s latest from FindLaw’s Writ: The Era of Entitlement:

    What Alabama Judge Roy Moore, File “Sharers,” and the Catholic Church Have in Common

    Now that I’ve read it, Marci does make a couple of reasonable points, mostly about the foolish moral relativism embedded in the arguments made by those who claim that record company greed justifies copyright infringement. But I also have to say that the whole thing reads like she’s drunk some variant of the "neo-con Kool-Aid," and she likes it — at least, this article reads more like a neo-con screed in tone, if not in content.

    One of the real difficulties that she faces in making her argument lies in the perjorative nature of the word "selfishness." On one hand, the economic engines of the free market are fueled by the actions of consumers to satisfy their own interests. On the other hand, unbridled selfishness (or, possibly more appropriately, short sighted selfishness) is a recipe for a total social breakdown.

    Prof. Hamilton argues that "responsibility" is the answer to the mixed blessing of selfishness. I can agree that responsibility is part of it, but I would argue that respect for others is a more important dimension. The fact that the record industry has treated their customers as suckers to be exploited to the full extent possible, rather than ensuring that they receive good value for their money, it at least as much at the root of the music as any of the limitations of the infringing public – just as the failure of Judge Moore to respect the religious views of others (and the legal needs of society) and the failure of the Catholic bishops to respect the rights of their parishioners are equally emblematic of critical failures.

    We can’t afford to have sociopaths in our midst, whatever their agendas.

  • Today seems to be a day of protest over software patent proposals in Europe. Slashdot: Sites Shut Down to Protest Software Patents. From the OnlineDemo information page:

    The FFII organized an online demonstration against software patents. On August 27th more than 2500 web replaced their title page with a protest page against software patents. Days later, many are still doing so, and new ones are still joining. The idea is that with software patents many sites running/serving possibly patent infringing software have to go offline sooner or later. Via this demo, this effect is demonstrated in advance.

  • MS reponse to Eolas: Microsoft preps IE changes in response to patent ruling

  • JoHo points to Jane Doe’s petition to intervene in the RIAA subpoena to Verizon

  • Mary Hodder discusses the state of trademarks in the wake of the Franken/Fox suit: I’m Trademarking "Trademark®" – she forgot to include "freedom of speech" (only one of several claims)

  • For some lighter fare, see this link [via TechLawAdvisor]: RIAA Claims Music On Car Radios Meant Only For Original Vehicle Owner!!!!

  • Derek’s back from Calornia and loaded for bear, with two lengthy posts (first, second) on the Video Pipeline case (copyright infringement by a video firm constructing trailers for promotion of film rentals) [earlier Furdlog entry]. His posting goes into the characterization of fair use in depth, ultimately concluding that "[t]his is why fair use is like flipping a coin."

    Or, more importantly, why there is a need to define fair use in a way that doesn’t require the [expensive] application of a judge – chilling effects, anyone?

  • Infringing Actions points to the global reach of cellphones, ringtone customization and copyright litigation: Music Rights Society Accuses MTN of Copyright Infringement

  • Bruce Sterling on the fact that revolutionaries, digital or otherwise, need to do more than just depose the offensive order: Freedom’s Dark Side

    So Europe’s open source revolutionaries have a great model for fighting the power. But they rarely consider the aftermath. As the former Soviet Union sadly demonstrates, if you depose the system and don’t replace it with anything, you unleash not only altruism but a host of dark traits no less human yet far more destructive. When that happens, you may well get things like well, like this remarkable souvenir I bought for about $1 in Bosnia-Herzegovina.

    It’s a pirated audiotape of “turbofolk” music by Ceca (pronounced “Tsetsa”), the busty pop-star widow of notorious Balkan war criminal Zeljko “Arkan” Raznatovic. Ceca is in prison at the moment, mostly because her latest boyfriend allegedly helped assassinate the prime minister of Serbia to protect the illicit revenue of Belgrade’s Zemun gang. When outraged avengers raided Ceca’s crib, they found the place crammed with automatic weapons. That’s like discovering Avril Lavigne has her own cruise missiles.

    Thanks to this disaster for the people of the Balkans, I’ve got some nifty music to play in my walkman, and the information was practically free. Ceca won’t get my money. Nor will her publisher, her backup musicians, her kids by the dead warlord, or her fellow mobsters. The Bosnians would never give Ceca her cut, because (a) they’re amazingly crooked and (b) she’s a Serb and they hate her guts. So, in an orgy of contempt for cops, lawyers, and WIPO, they steal her music, repackage it with lousy graphics and worse sound quality, and sell it for peanuts to passing Americans.

    The denizens of Open Cultures want their connected collectivism to liberate the world from regulations, markets, and intellectual property. But what if victory only clears the way for corruption of their beloved culture? When I listen to Ceca, I have to wonder what dark passions and ancient evils have been held in check by the grim totalitarianism of the profit motive. We may yet find out.

  • Off-topic: An NYTimes op-ed piece use’s a classic Melville character to describe a certain languor that comes over me from time to time these days, as well as warning that resisting it is of vital importance: When Life Offers a Choice Between the White Wall and the Brick Wall [pdf]

    I’ve been thinking about Bartleby lately, probably because my job compels me to follow world events. The mess in Iraq presents two seemingly unacceptable possibilities: staying and having our soldiers killed daily, or leaving and ushering in chaos. The only thing worse than confronting the North Koreans about their nuclear weapons program, it seems, is not confronting them. On the domestic front, omnibus bills in Congress routinely tie the necessary to the intolerable. After the blackout Republican leaders refused to separate out a proposal to upgrade the power grid from a larger bill that gives the energy industry tax breaks, and the right to drill in Alaskan wildlife preserves. For Californians, sending a strong message that the recall is an outrage means pulling the lever beside Gray Davis’s name.

    I have friends who now talk cheerily of self-imposed “news blackouts,” taken on to spare themselves the latest reports of corporate malfeasance, layoffs and killings of bus riders by suicide bombers. In today’s world of bleak alternatives, however, Bartleby’s story is a sobering reminder that what life requires is remaining engaged — preferring, and acting on those preferences. Contemplating Bartleby’s sad end may give us some strength as we continue to stand up for troubling foreign policy options, settle for anemic legislative victories and vote for the lesser of two, or more, evils.

  • As the clock ticks toward Microsoft’s deadline for taking MSN’s instant messaging protocol private (and locking out the authors of IM clients), MS is making an offer it hopes won’t be refused: Microsoft seeks cash from IM client makers.

    Microsoft isn’t targeting rival IM network operators such as America Online Inc. or Yahoo Inc., but makers of clients that use the Microsoft MSN IM network and compete with Microsoft’s own MSN Messenger client.

    […] “Running an (IM) network is expensive,” said Lisa Gurry, group product manager for MSN at Microsoft. “We can’t sustain multiple other people’s businesses, particularly if they charge for certain versions of their software. We’re introducing licensing processes for third parties like Trillian.”

    Microsoft is making changes to its network that will lock out “unlicensed or unauthorized third-party clients.” The first phase of those changes is scheduled to go into effect mid-September, followed by a complete lock-out on October 15, Microsoft has said.

    Writing an operating system is expensive, too, yet Microsoft seems to *want* people to build upon that; IM is really *that* much harder to run? Or is Microsoft just yearning for another opportunity to extract monopoly rents?

  • KaZaA is working to move up in the world. InfoWorld: Kazaa launches premium service; CNet News: Kazaa retuning promises faster downloads

    Kazaa Plus offers enhanced search, enabling people to start searches that run every 30 minutes for a 24-hour period that could yield up to 9,000 results. Customers will be able to download files from up to 40 sources at one time, up from only eight in the advertising-supported version. The update also includes enhanced virus protection.

2003 August 28 AM

(entry last updated: 2003-08-28 13:26:19)

  • Looks like the W3C has issued a comment on Eolas v. Microsoft. See the Slashdot discussion: Plugin Patent to Mean Changes in IE?

  • More in an occasional series of postings here on how technology is changing the market and culture of movie-making: DVDs are for losers

    New rule: DVDs are for losers. Hey, why pay $9 to watch garbage in a crowded theater when you can pay 24 bucks and actually own that garbage? After all, “Kangaroo Jack” is the kind of film you need to see 10 or 12 times before you really “get it.” Be honest, you’re not a cinephile, you’re a dateless 30-year-old watching “Die Another Day” in your basement.

    DVDs, you see, are evil because they now account for over half the money Hollywood makes, and they’re all bought by the young, dumb, car-crash-loving male demographic, the same one that’s given us MAXIM magazine, attention deficit disorder and George Bush. Also, since the little teenage darlings who control all media are not old enough to see R-rated movies, our entire culture is now PG-13 — the kind of blanded-down mush designed to be as inoffensive as possible to the widest group possible, the same theory that made airline food what it is today. And that’s what movies are now: airline food.

  • Online music broadcasters sue RIAA [pdf]

    An alliance of online music broadcasters sued the recording industry in federal court Wednesday, alleging major record labels have unlawfully inflated webcasting royalty rates to keep independent operators out of the market.

    Webcaster Alliance, an organization claiming some 400 members, filed the suit in U.S. District Court for the Northern District of California, claiming the major labels and the Recording Industry Association of America have maintained a monopoly over their music.

    The suit alleges the negotiations for arriving at royalty rates to broadcast songs over the Internet violated federal antitrust laws and seeks an injunction that would prevent the major labels from enforcing their intellectual property rights and collecting royalty payments.

    CNet News: Small Webcasters sue RIAA

    Slashdot carried an article on the threat to do this in early July: Webcaster Alliance Threatens To Sue RIAA.

    Here’s The Register‘s story: Webcasters slap RIAA with antitrust suit, which includes discussions of how the original royalty levels were set – see this RAIN article from June 2002 for more background on the issue: Cuban Says Yahoo!’s RIAA deal was designed to stifle competition.

    RAIN also covered the Judiciary Committee hearing on this subject: Copyright Royalties: Where is the Right Spot On The Dial For Webcasting (includes streaming video)

    Update: Slashdot: Small Webcasters Sue RIAA

  • From the Boston Globe: Recording industry discloses methods to track downloaders [pdf]

    The RIAA’s latest court papers describe in unprecedented detail some sophisticated forensic techniques used by its investigators. These disclosures were even more detailed than answers the RIAA provided weeks ago at the request of Senator Norm Coleman, a Minnesota Republican who has promised hearings into the industry’s use of copyright subpoenas to track downloaders.

    With luck, these filings will eventually reach the EFF archive. Magistrate Judge John Facciola’s WWW page

    CNet News’ article: RIAA turns up heat on subpoena fighter

    Update: Slashdot discussion: RIAA Tracking Songs by MD5 Hashes

2003 August 27 AM

(entry last updated: 2003-08-27 11:38:45)

  • Larry on the history of compulsory licensing: the changing tune of the record producers

  • Ed Felten points us to his interview in Business Week: Fighting for Freedom [pdf]

    Q: Do you think intellectual property changes when it becomes digital?

    A: It has to change. And especially for copyrighted works, the business aspects have to change. [With digital material] everything becomes cheaper and easier — any kind of processing, distribution, and use. Even if there were no illegal copying, the advent of digital distribution will put a lot of stress on the movie and music industry. When the distribution costs comes down, that puts more price pressure on the rest of the cost.

    When you buy a CD, $10 goes for distribution and delivery of that product — printing, shipping, [the] record store clerk. The other $7 or $8 of the prices doesn’t seem so high. If it costs cost 5 cents to get something to the consumer, people are less happy about the other $7 or $8.

  • Kevin points out this disturbing Detroit Free Press editorial: Don’t delete Internet privacy [pdf]

    Privacy is destroyed because it has become so easy to reveal the identity of Internet users. Now, a copyright holder simply fills out a one-page form and a federal clerk immediately issues the subpoena to the Internet service provider (Verizon Online, AOL, MSN, etc.). The service provider must then release the name, home address and phone number of that user. Internet service providers risk large penalties if they even question the validity of the subpoena.


    Perhaps the most dangerous consequence, the ruling puts subpoena power in the hands of anyone willing to pretend to have a copyright claim. Without a judge’s review, these fraudulent requests are impossible to distinguish from legitimate ones. This flood of legally sanctioned harassment will quickly become the “New Spam,” with the kinds of abuses as limitless as the Internet itself:

    • A gay pornography Web site has already issued subpoenas to SBC Communications to try to learn the identity of visitors to the porn site. Other porn sites and gambling sites can track down visitors and demand payment not to reveal the user’s identity, all under the pretext of enforcing the site’s “copyright.”

    • The most common use may be that of Web site operators who want to identify their visitors for marketing purposes or for more nefarious reasons, including identity theft, fraud or stalking.

    • Private investigators will gain an unstoppable way to turn any e-mail address into a person’s name and street address.

    Nice to see it stated so nakedly in a mainstream press piece.

  • Aptly titled interview with Al Franken following his “fair and balanced” victory: “They can dish it out, but they can’t take it”

    So this is the mindset of the right, that they have to punish you. Joe Wilson, the former Gabon ambassador, was sent to Niger by the CIA and came back and said the uranium claims weren’t true. And when the controversy started broiling again about the 16 words in the State of the Union address and Wilson wrote the piece in New York Times, senior administration officials blew the cover on his wife, who was a covert [CIA] operative. And it jeopardized the lives not only of her contacts but every American, because she was a covert agent in weapons of mass destruction. And it’s a way of intimidating other analysts who might come forward, and there’s a parallel here: You will be punished if you come after us.

    I really think the Wilson thing is the most disgraceful action of any White House since Iran Contra.

    More than Clinton and Monica?

    There’s a difference between getting a blow job and lying about it, and blowing a national security asset.

  • Slate’s ad reportcard article of a day ago on reworked music in videos comes at us from a different angle at JoHo: Devo Swiffer (including links)

  • SFGate’s writeup of Bunner is a little calmer than some of the recent rhetoric has been, although the headline is still inflammatory: Court rules against DVD copying:

    Trade secrets must be protected, justices say.

    Matt’s comments are up. Keven Heller’s got a good set of links that I’m sure I should have read (especially Eugene Volokh’s comments) before I posted my own comments here.

  • MP3 Newswire has an editorial on CD economics, arguing that P2P filesharing’s influence is really about eroding an artificially-created scarcity rent in music:

    Congress is told by the Record Industry Association of America (RIAA) that file trading is theft. In reality the P2P services bring balance to a system long unfairly tilted to favor the supplier. Records are still selling in a world where 60 millions US citizens file trade. A recent Nielsen/NetRatings poll shows file trading actually helps sales.

    But file trading also will keep the record companies in check. The rules have changed and the days of excess profits are numbered. The record industry needs to adjust.

    If the existing record industry cannot adjust, someone new will come in to take their place and – like makers of $5.00 diamonds – will profit handily not by intentionally restricting sales, but through volume.

    Slashdot discussion: Diamonds & the RIAA

  • I see that I have some learning to do to catch up on the PanIP patent litigation.

    If you own or operate an e-commerce web site then you are us. And you need to know that a company in San Diego, Pangea Intellectual Properties (PanIP LLC) is suing companies all across the country. They claim that if you use graphical and textual information on a video screen for purposes of making a sale, then you are infringing on their patent. US Patent No 5,576,951.

    And if you accept information to conduct automatic financial transactions via a telephone line & video screen, you’re infringing on their patent. US Patent No. 6,289,319

    This Slashdot story brought it to my attention: PanIP May Be Standing On Shaky Ground

  • GrepLaw’s interview of the P2P subpoena’s "Jane Doe" plaintiff gets the Slashdot treatment: ‘Jane Doe’ Lawyer Glenn Peterson Talks With GrepLaw

  • The Register: Intel ‘may be guilty’ of over hyping Wi-Fi. Wonder what Les Valdasz would have to say?

  • A look at derivative works and popular culture: Jack Kirby Heroes Thrive in Comic Books and Film [pdf]

    The Kirby influence can also be seen in “The Matrix” and its sequel by the Wachowski brothers, who are comics fans. In the “Matrix” pictures, comics readers can notice parts of Kirby’s “X-Men,” like the intense band-of-brothers philosophy that held the mutants together and the mixture of popular culture and mythological grandeur rooted in “X-Men” and “Thor,” Kirby’s turn on the Norse gods. When Neo travels from the outer world of the Matrix to Zion, the world-within-worlds scenarios that Kirby pioneered in comics are visible. These movements are reminiscent of the Negative Zone, a netherworld that Kirby conjured for “The Fantastic Four.”

    There are elements of the “Star Wars” mythology in “Matrix.” But the idea of a hero turning out to be the offspring of the most inconceivable evil, an immensely grim force that dominates out of pride, did not begin with George Lucas. In 1971 Kirby left Marvel after disagreements over rights to characters he had helped bring to life. After going to DC Comics, the home of Superman and Batman, Kirby hammered together a new vision: an expanse of planets and the gods that controlled them called the New Universe, which unfolded in the “New Gods,” “Forever People” and “Mister Miracle” comics.

    With the malevolent overlord, Darkseid — who turns out to be the father of Orion, a damaged warrior-hero who has to battle a barely sublimated streak of cruelty — Mr. Lucas’s “Star Wars” archvillain, Darth Vader, can clearly be glimpsed.

    Also, we have this article: The Magic of Comics! While Batman Turns 64, a Fan Goes Back to 9 [pdf]

    What else is different? Some mainstream comic book characters now curse. No more #$!%#@. They have sex. No more speculating about the sex lives of the superheroes. They bleed in red, not black, and they bleed a lot more than they used to. “The Sopranos” take on the world has spilled into comic books.

    But the cross-pollination works both ways. On some days, doesn’t it seem as if we live in Comic Book Nation? In the last year the Marvel characters Spider-Man, Daredevil, the Hulk and the X-Men have all done big box office. “The Road to Perdition,” “The League of Extraordinary Gentlemen” and “Men in Black” movies were all based on comics.

    And there’s more to come. Never heard of Hellboy or Hellblazer? You will. On television plenty of recent shows either are based on comics or ooze the pulpy comic book feel: “Buffy the Vampire Slayer,” “Witchblade,” “Smallville,” “X-Files.”

    In hard rock there’s no question that larger-than-death acts like Rob Zombie, Marilyn Manson and Slipknot pay more than passing homage to comics. And on the fields of play, weight-training and steroids have turned athletes into true Hulks, although sans green skin and purple trunks.

  • Amicus briefs in the Grokster appeal are cited in this CNet News article: RIAA, studios gain P2P legal aid

    Several groups, including a list of legal scholars, international copyright organizations, legal music services and other copyright holder groups filed “friend of the court” briefs Tuesday, asking that an April ruling upholding the legality of file-swapping services such as Grokster and StreamCast’s Morpheus be overturned.

  • Today’s Boston Globe paints a glowing picture of game "modders" without getting into the copyright litigation that has come along with many of their activities:

    ‘Mods’ squad adds new life to old games [pdf]

2003 August 27 – A look at Bunner

(entry last updated: 2003-08-27 07:32:30)


So, I finished reading DVD CCA v Bunner last night. The first thing that the reader gets is a demonstration of something discussed at the early stages of any legal career – judges will do almost anything not to decide anything!

As has been noted elsewhere, the California Supreme court’s majority opinion goes out of its way to make as narrow a decision as it possibly could. Essentially, the opinion answers the following relatively simple question: "does prior restraint on a disclosure of illegally obtained information protected by trade secret law constitute a violation of the First Amendment?" Surprise – the answer is no.

Once that question is answered, however, the Court then turns around and declares that the District Court’s finding of fact ((1) CSS is still a trade secret and (2) that Bunner illegally obtained CSS information) is far from clear on the basis of the evidentiary record. In fact, it is so troubled that it asks the Court of Appeals, which has already acted to overturn the injunction against Bunner, to review the record and make the necessary determinations. Because, if Bunner did not get the information illegally, then the injunction is a violation of the First Amendment.

Moreover, there is a concurring opinion by Justice Moreno who asserts that there is no point in sending the case back to the Appelate Court for review. In his view:

DeCSS was not demonstrably secret in this case when Bunner republished it, and Bunner was neither alleged to be the original misappropriator not to be in privity with any such misappropriators.

[…] [A] plaintiff carries the burden of showing that the trade secret remains a secret despite the Internet posting. In the present case, nothing in the record indicates that the DVD CCA met that burden. In fact, the trial court failed to make any particularized findings at all that the information was still secret when Bunner republished it, instead treating the 20 or so defendants as a class and making general statements that these defendants had published secret information. Without evidence in the record that the proprietary information was still secret at the time Bunner downloaded it from the Internet, the DVD CCA cannot sustain its burden of demonstrating a likelihood of prevailing on the merits.

(concurring opinion, slip op. p. 16)

So, there is no reason for some of the hysterical assertions that the notion of "code as speech&quot has been overturned by this opinion. Moreover, there are certainly indications that this case will eventually lead to the finding that CSS is no longer a trade secret, and that posting of DeCSS will not be found to have been a criminal act.

What about the DMCA?

The Court, as I indicated above, was careful to avoid deciding too much, most notably avoiding digging into the DMCA. However, Moreno’s concurring opinion does nose around the edges of this issue, largely to suggest an explanation of why the District Court might have been a little overzealous in their award of injunctive relief:

It is likely that the trial court’s view of this case was colored by the content of the information — that DeCSS is designed to circumvent the encryption of DVD’s. But the fact that the information at issue is being used for a decrypting purpose is not significant from the standpoint of trade secret law. […] It may or may not be the case that Bunner’s action violated the Digital Millennium Copyright Act (DMCA) (17 U.S.C. sect. 1201), which explicitly prohibits various efforts to circumvent "technological measures that effectively control access" to copyrighted works (id., sect. 1201 (a)(1)(E), (2)(A)). Unlike trade secret law, the DMCA does not inquire into whether technology-circumventing devices are acquired by improper means or are based on secret information, but rather considers whether the primary purpose of those devices was improper. (Ibid.; see Universal City Studios, Inc. v. Corley (2d Cir. 2001) 273 F.3d 429, 440-441.) DVD CCA s complaint did not allege a violation of the DMCA and that issue is not before us.

(slip op., concurring opinion, p 18)

What we can draw from this quote is only the same thing that I think Moreno is saying — thank goodness this wasn’t something that had to be decided here and now!

A Less Comforting Element

The opinion, however, also raises an issue that is going to come back to haunt the digital information community. The Court spends a considerable amount of time seeking to establish whether a prior restraint on (code) speech is "content based" or "content free.&quot. The distinction is important because the standards for determining the legality of such prior restraint is different, with restraint on "content based" speech requiring that a much higher standard is met.

The Court concluded that CSS, as a trade secret (assumed to have been) illegally misappropriated, allowed them to apply the less restrictive standard applied to "content free" injunctions on speech. (sorry — it’s hard to figure out where to put the term of art "content free" without appearing perjorative!) You can read the opinion to see how they got there, but there was a part of the opinion that precisely defined just how messy things have gotten in the digital realm.

The case CBS Inc. v. Davis (510 US 1315) was apparently cited by Bunner at some point in the process as a case that showed that prior restraint should not be applied. As cited in the opinion, we find:

In CBS, a federal district court issued an injunction "prohibiting CBS from airing videotape footage taken at the factory of Federal Beef Processors, Inc." (Federal) (id. at p. 1325), because the tape disclosed Federal’s "’confidential and proprietary practices and processes….’" (Id. at p. 1316.) Concluding that the injunction was an unconstitutional prior restraint, Justice Blackmun stayed its enforcement. (Id. at pp. 1317-1318.) As a single justice order, CBS is arguably not binding on this court. In any event, it is distinguishable. Justice Blackmun, in finding a prior restraint, relied on the lack of clear evidence establishing that CBS had acquired Federal s proprietary information by improper means. (Id. at p. 1318.) In contrast, we assume for purposes of this appeal that Bunner knew or had reason to know that DVD CCA s trade secrets were acquired by improper means. Moreover, unlike the trade secrets at issue here (see ante, at pp. 21-23), the videotape footage at issue in CBS appeared to address a matter of public concern — "unsanitary practices in the meat industry" (CBS, at p. 1315). (emphasis added)

(majority opinion, slip op., p. 26)

Why this lengthy quote? What if the only way to see CBS’ news report had required that you have DeCSS? Would an injunction on disclosure of DeCSS still be "content free?"

One would hope not — locking away information that is in the public interest behind an electronically erected and implemented "pay-wall" would seem to be patently offensive to our notions of liberty, but I was struck by the fact that the Court’s discussion exposes a now-classic blind spot. The code in DeCSS is more than just speech – it’s a kind of meta-speech that, by technological design, unlocks lots of other speech.

We have decided to alienate ourselves from "real speech" through technological means because of its convenience in distribution and use. I can’t "watch" a DVD without the intervention of a technological artifact (unless you mean looking at the play of light and diffraction on a shiny disk). The "speech" on the DVD is inaccessible until I turn the crank of a particular technology – and it’s going to be vitally important that the crank remain as free as the speech that it locks away, or we’re going to find all sorts of unhappy threats to our liberty.

2003 August 26 PM

(entry last updated: 2003-08-26 17:43:19)

  • Ed Felten’s take on Bunner: Trade Secrets and Free Speech.

  • Lessig’s first take on Bunner: thoughts on Bunner. (I’m carrying the opinion with me from meeting to meeting today in the hopes of having something to add.)

  • A famed mod-chip case settled: Lik-Sang settles mod chip case out of court

    Former online retailer Lik-Sang International has settled a case brought by Sony out of court, undertaking to cease trade in any copyright circumvention devices and paying an undisclosed compensation sum.


    However, it continues to fight similar cases against Nintendo and Microsoft, both of whom were involved in the action against the company in September of last year which won an injunction against it for selling copyright circumvention devices.

  • A provocative question: A legal fix for software flaws?

    Problems with physical products routinely yield multimillion-dollar verdicts and settlements in litigation-happy America. But software vendors are largely protected from product defect claims thanks to unusual exemptions enshrined in typical software licenses–boilerplate known in the industry as End User License Agreements (EULAs) or “shrink-wrap” licenses, so called because they’re often printed inside the shrink-wrapped box containing the product or incorporated into the software itself.

    […] [R]epeated failures are leading some irked security experts to press for changes in software liability law to better motivate companies to fix buggy and insecure code.

    “If the laws got changed that forced software makers to be held liable–criminally, civilly, financially–for their products, we’d see a marked increase in product quality, security and stability,” said Richard Forno, an author and security consultant. “The EULA is the slickest ‘Get out of jail free card’ I can think of in recent years.”

2003 August 26

(entry last updated: 2003-08-26 09:39:23)

  • Via Jim Flowers: Are The Internet And Government Incompatible? (you may need to scroll down a bit)

    Perhaps we were lucky that the Internet came of age in the anti-government age, under a Democratic President.

    If it came along today, it would be banned.

    The fact is that the Internet, by its nature, runs counter to all government control. It is simply a protocol for sending bits. It does not ask what those bits will be used for, or even where those bits will go.

    Anyone can use the resource. We don’t even ask for ID, nor can we track your purpose. Whether you’re a writer, an honest businessman, a drug dealer or international terrorist, the Internet itself does not ask and does not care.

    […] The only laws concerning the Internet that are capable of enforcement are those supported, not by financial interests, not even by a majority, but by a consensus among the people, both good and bad, Republican, Democratic, Independent and Indifferent. Consensus is hard to achieve, so laws covering the Internet must touch the people as lightly as possible. Those laws that fail the tests simply become unenforceable. With enough unenforceable laws, all laws regarding the Internet become unenforceable — it’s the simple law of numbers.

    As to those governments that fail to “get it,” “it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.”

    Fair warning.

  • Some more on the Australian court finding against a couple of record companies: Penalties More Than Doubled To Over $2 Million As Full Court Upholds Part Of CDs Decision

  • Today’s Boston Globe on music and politics: Democrats getting in tune:

    Campaigns seek perfect song for their candidates [pdf]

    ”Here’s the thing,” wrote supporter Hugh Gurin, 36. ”We have to get this right.”

    It is something political operatives already know. A few well-chosen bars of music can accomplish what advertisers call ”branding,” solidifying a candidate’s image, conveying a theme. The best campaign songs are legendary, said Darrell West, professor of political science at Brown University. Lee Greenwood’s ”God Bless the USA” was Ronald Reagan’s assertion of national pride. In 1992, Fleetwood Mac’s ”Don’t Stop” was Bill Clinton’s way of saying that a new generation had entered politics.

    A dud, meanwhile, can be an embarrassing distraction. In 1996, Bob Dole had to stop using ”Soul Man” — which he had changed to ”Dole Man” — after the song’s copyright owners sent him a threatening letter.

  • Lisa Rein gets an impressive online companion: The BBC’s digitally televised revolution

    The British Broadcasting Corp., the United Kingdom’s largest broadcaster, plans to digitize its archive and let people download programs for free online, BBC Director-General Greg Dyke said Sunday.

  • A new, albeit unsustainable, business model for CD production: Auctioning Off the Past to Make a Future in Music [pdf]

    Some musicians build on the past for new albums, others bury it. David J hawked his past, piece by piece on eBay, to finance his new CD, “Estranged.”

    […] His do-it-yourself method: clean out the garage. In 1999, he ran three auctions on eBay, one each to finance the recording, mastering and publicizing of “Estranged,” which will be released on Sept. 9.

    Everything from concert set lists to handwritten lyric sheets to guitars from throughout his career went on sale, 60 items in all. Winning bidders will be listed in the liner notes of “Estranged.”

  • In other developing music business models, we get the following: Indie labels lure Net music stores

  • Declan McCullagh: End of an era for file-sharing chic?

    Not too long ago, civil liberties groups aiming to protect peer-to-peer networks like Napster and Kazaa were happy to dispense some free legal advice to the Recording Industry Association of America.

    Instead of trying to shutter P2P networks and outlawing a blossoming form of technology, the RIAA’s lawyers should sue the specific individuals who were violating copyright law, groups such as the Electronic Frontier Foundation and Public Knowledge suggested.

    […] With the threat of lawsuits looming, the EFF is now on the pulpit deriding heavy-handed litigation tactics and handing out how-not-to-get-sued advice on its Web site.

    A change of tune? Nope, says Wendy Seltzer, an attorney for the San Francisco-based nonprofit group. “Those quotes are half the story Fred was saying at the time,” Seltzer says. Suing individuals is “at least a more appropriate direction for their lawsuits, but it has the potential to turn all those people who are accused of direct infringement into critics of the system.”

    […] But the civil libertarians may have got this one right. Now that the RIAA has steeled itself for the worst, the downside of suits seems surprisingly less frightening to the industry than it once did–particularly if they can cherry-pick unsympathetic defendants.

  • DeCSS in the news – is code speech?

    • The Register:

      California Supremes issue DVD crack setback

    • CNet News: DVD-copying code loses free speech shield

      But judges said that for now, property rights outranked free speech rights in this case, because DVD copy-protection technology was never meant to be public. Nor did the DeCSS code itself contribute significantly to a debate over whether DVDs should be encrypted at all, the judges said.

      “Disclosure of this highly technical information adds nothing to the public debate over the use of encryption software or the DVD industry’s efforts to limit unauthorized copying of movies on DVDs,” the court wrote. “We do not see how any speech addressing a matter of public concern is inextricably intertwined with and somehow necessitates disclosure of DVD CCA’s trade secrets.”

    • Good thing David Touretzky’s in Pennsylvania instead of California: Gallery of CSS Descramblers.

    • San Jose Mercury: DVD decryption ruling sends mixed message

    • See also the Slashdot discussion, DeCSS Loses Free Speech Shield, which includes this very effective analogy for explaining what DeCSS is and is not:

      As I explain to my non-techie friends

      To put it in simpler terms, I can copy coded/Chinese text by hand without ever knowing what it says. DeCSS is a codebook or Chinese-English dictionary. Dictionaries don”t help you copy stuff.

    • Another notable comments: All DVD piracy to stop! news at 11!

      DeCSS was written for, and mainly used for, watching legally purchased DVDs on Linux computers. Was the DVD industry ever able to come up with examples of DeCSS being used to pirate DVDs? There are probably more pirate DVDs stamped in China in one day that were EVER made with DeCSS.

      and a question: Hypocritical

      Why is it that we can post the directions for how to properly murder someone or build a bomb (In fact, this seems to be the topic of most movies made today), yet we are barred from posting DVD-copying code?

      Can a case be made that posting DVD-copying code and directions on a website makes people more likely to copy DVDs, while there is no correlation to how many people are more likely to build a bomb or murder someone after reading the directions online?

    • Here’s an excellent comment that merits its own list item, because it raises a really important distinction between tactics and the philosophical underpinnings of the debate: Good

      While I agree with just about everybody here that reverse-engineering shouldn’t be illegal, and you should be able to publish DeCSS, I just want to watch the DVD I bought legally for crying out loud, etc —

      Let’s keep the first amendment out of this, okay? DeCSS is code. It’s not free expression, it’s not an Art form. It’s simply a useful tool that let’s you watch DVDs on your linux box. It should be legal to distribute it, not because of free speech, but because you simply should be allowed to write code that let’s you watch movies.

      Rather than trying to shove the square peg of technology into the round hole of the 1st amendment, we should be addressing current technology laws. In a way, not calling shenanigans on the DMCA every chance you get implies your acceptance of it. If you fix the DeCSS problem with 1st amendment logic, you’ve fixed the DeCSS problem. But if you fix it by repealing the DMCA, you’ve fixed a whole lot of other problems as well.

    • New York Times: Court Rules That Trade Secrets Can Outweigh Free Speech [pdf]

      The import of the California Supreme Court’s decision, according to Pamela Samuelson, a law professor at the University of California at Berkeley, is that “you don’t have a First Amendment right to spill everybody’s trade secrets.”

      Yet Ms. Samuelson, who filed a supporting brief on behalf of Mr. Bunner, asserted that the real weakness of the suit was the trade secrets claim. Mr. Bunner, she noted, did not create the encryption-cracking program, he violated no contract with the DVD Copy Control Association, and by the time he posted the software on a Web site hundreds of others had done the same thing.

      “By the time Bunner reposted it, the secret was out of the bag,” Ms. Samuelson said.

      David A. Greene, executive director of the First Amendment Project, a nonprofit group, said he was encouraged by the ruling. “We’re going to get a rigorous constitutional test of this issue of where trade secrets intersect with the First Amendment,” said Mr. Greene, who represented Mr. Bunner before the state Supreme Court.

      Mr. Greene said that his group, supported by the American Civil Liberties Union, the Electronic Frontier Foundation and a couple of computer professional associations, was striving to defend a broad principle. “This case is about the right of people to publish publicly available information,” he said. “If a person finds information on the Web and posts it, he or she should not be sued by a big corporation.”

      Mary’s got a link to the opinion (FindLaw’s copy); Denise has a set of links not to be missed.

2003 August 25

(entry last updated: 2003-08-25 16:35:53)

TPP Orientation today – posting will be sparse…..

  • Scooped! This is what I get for missing a couple of days of MIT’s student paper, The Tech;

    • RIAA Will Issue Second Subpoena For Identity of Music Distributor

      The Recording Industry Association of America will send MIT a second subpoena seeking the identity of a network user alleged to have been illegally “offering hundreds of copyrighted works to the world-at-large” from MIT’s network through the KaZaA file-sharing system, an RIAA spokesman said last night.

      This time, the RIAA will file the subpoena the way MIT has asked: through the federal district court in Boston, instead of Washington, D.C. MIT says it will comply with a subpoena issued through the Boston court.

      I had received an e-mail to this effect; I cannot tell if the MIT administration is going to explore the policy issues surrounding this case any further. However, note that there are some interesting procedural and evidentiary issues implicit in the following:

      MIT originally suspected a “young lady” living at TDC over the summer as being the computer’s owner, said an MIT official. But now, based on examination of the logs provided by TDC, MIT has decided a different individual is the computer’s owner. (see this earlier Furdlog entry)

      MIT officials say they are not sure the owner is actually the person who was allegedly infringing the RIAA members’ copyrights by distributing recordings on KaZaA.

    • An Issue of Security

      To all new students: Welcome to MIT. When you move into your new rooms and set up your computers, make sure your lawyer is on speed dial.

      […] But this sort of problem is omnipresent, reaching far beyond the walls of MIT. Lawsuits and intimidation are short-term approaches, and KaZaA, like Napster before it, is a relatively short-term medium.

      There can be only one true solution to the widespread problem of copyright violation: a compromise that respects the rights of artists to their work and of consumers not to be raked with bloated costs.

2003 August 22

(entry last updated: 2003-08-23 12:57:10)

Karen got back from traveling last night and, at dinner she said something that struck me as terribly insightful. I was discussing the latest SCO nonsense and she pointed out that the whole thing seems like something from one of Neil Stephenson‘s science fiction – particularly the Zodiac, Big U and Snow Crash styles. I wonder if he’s written anything about this whole thing?

  • An entertaining NYTimes read on Fox v Franken: In Courtroom, Laughter at Fox and a Victory for Al Franken

    Calling the motion “wholly without merit, both factually and legally,” the judge, Denny Chin of United States District Court, said that a person would have to be “completely dense” not to realize the cover was a joke, and that trademark protection for the phrase “Fair and Balanced” was unrealistic because the words are so commonly used.

    "Completely dense" – I think that about sums it up for this case and Fox News in general.

2003 August 22

(entry last updated: 2003-08-22 20:29:09)

  • GrepLaw comments on Blame Canada:

    File Sharing and Downloading in Canada

  • I couldn’t let this wait: Fox Blocked In Suit Against Al Franken Book

    Fox’s claim was “wholly without merit, both factually and legally.” The network had argued Franken’s book — “Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right” — could trick some consumers into believing the book is associated with Fox.

    NYTimes link: Judge Decides Franken is Fair and Balanced {pdf]

  • Now that the thunderstorms have stopped, it’s time to go home. Here are a couple of weblog entries to read:

  • Slashdot on the "Jane Doe" fighting the RIAA subpoena: Anonymous User Challenges RIAA Subpoena

  • Offtopic: I am listening to Terry Fisher declaim (on WBUR/NPR’s Here and Now) on the US Constitution and the Judeo-Christian tradition in re the current Alabama/Ten Commandments Monument decision.

    Now it’s on-topic: a roundtable on the "fair and balanced" lawsuit.

  • Larry Lessig is justifiably miffed (I had another word in mind, actually) about recent WIPO actions cited in this Washington Post article: The Quiet War Over Open-Source [pdf]. Read his comments here: the extremists in power

  • CNet News: Net music pirate faces years in prison

    The U.S. Department of Justice said Thursday that it accepted a guilty plea in a criminal copyright case involving the former leader of a Net music piracy group called the Apocalypse Crew.

    The defendant in the case, 21-year-old Mark Shumaker, faces a maximum prison sentence of five years and a maximum fine of $250,000. Shumaker helped coordinate the supply and release of albums online before they hit retail stores and ran the Apocalypse Crew’s Internet Relay Chat (IRC) channel, federal investigators charged.

    […] Shumaker’s case, part of the long-running Operation Buccaneer federal antipiracy investigations, is believed to be the first involving criminal penalties specifically for online music trading, a Department of Justice spokeswoman said. Buccaneer has targeted many other individuals, however, and has resulted in more than 22 convictions of felony copyright infringement involving software piracy groups such as Drink or Die, prosecutors said.

  • Infoworld: SCO CEO says IBM behind open source attacks. I look forward to learning the name of Daryl McBride’s pathology. But, in the interim, consider this incredible paragraph:

    However, SCO’s public relations (PR) department has had a busy few months. McBride proudly dumped two phone-book-sized binders of press clippings on the stage during his SCO Forum keynote on Monday as proof that his company had become more relevant in the high technology industry. [emphasis added] SCO has issued 46 press releases since filing suit against IBM on March 7. Last year it issued only 29 press releases between March and August.

    "Relevant" isn’t exactly the word that comes to mind……

    Update: Slashdot’s article, SCO Says IBM is Beating Up on Them, is similarly dismissive – plus it points to Eric Raymond’s thoughts: An Open Letter to Darl McBride

    I’m in at least semi-regular communication with most of the people and organizations who are causing you problems right now. The only conspiracy among us is the common interest in preventing the open-source community from being destroyed by SCO’s greed and desperation. (And we think it’s a perfect sign of that desperation that at SCOforum you ‘proved’ your relevance by bragging about the amount of press coverage SCO generates. Last I checked, companies demonstrated relevance by showing products, not press clippings.)

    Yes, one of the parties I talk with is, in fact, IBM. And you know what? They’re smarter than you. One of the many things they understand that you do not is that in the kind of confrontation SCO and IBM are having, independent but willing allies are far better value than lackeys and sock puppets. Allies, you see, have initiative and flexibility. The time it takes a lackey to check with HQ for orders is time an ally can spend thinking up ways to make your life complicated that HQ would be too nervous to use. Go on, try to imagine an IBM lawyer approving this letter.

  • After reading this NYTimes article, F.C.C. Discloses New Rules for Telecom Industry [pdf], it’s probably worth reviewing the Reed Hundt discussions at ILAW (links to other bloggers comments). From the NYTimes article:

    The rules elaborate on a contentious F.C.C. decision six months ago that local telephone companies generally must share older equipment for voice transmission at wholesale rates but not newer technology dedicated to high-speed data.


    The final order, a result of a Congressionally mandated review, has pleased almost no one and will certainly lead to a wave of litigation. “Every word will be challenged,” said Dana Frix, a telecommunications lawyer with Chadbourne & Parke who often represents the rivals to the Baby Bells. “My children will go to college on this stuff. This is a lawyer’s dream.”

    Infoworld’s piece: FCC phone competition rules may be finalized soon; CNet News: New broadband rules draw criticism

  • Wired News on the buying of search terms: Keywords: To Buy or Not to Buy

    But as more merchants look to snap up the same keywords, search-engine experts say they also appear to be pushing up prices.

    Based on bidding activity at the two most popular paid services — Overture (soon to be acquired by Yahoo) and Google’s AdWords program — the cost of delivering ads tied to certain search queries has skyrocketed in recent months.

    Recall that there are some legal questions regarding trademarks, etc. also in the mix.

  • Always interesting to contrast what happens here in the US with the Australians. This Slashdot article, Australian Court Doubles CD Importers’ Fines discusses fines set to stem anticompetitive practices by record companies who wanted to penalize retailers importing cheaper CDs via non-standard distribution channels. Press release: Penalties More Than Doubled to Over $2 Million as Full Court Upholds Part of CDs Decision

    The Full Federal Court has today upheld that Warner Music and Universal Music had breached section 47 of the Trade Practices Act 1974 dealing with exclusive dealing when responding to the parallel importation of music by small business.

    […] At trial, Justice Hill held that Warner and Universal had breached the Act by threatening to refuse to supply Australian retailers who stocked parallel-imported CDs, and later refusing to supply retailers who stocked such imports. Those findings made by Justice Hill preventing Warner and Universal from refusing, or threatening to refuse supply to retailers for the reason that they source or propose to source non-infringing copies of music within their catalogue from an alternate source, were upheld by the Full Federal Court.

  • The Register on the RIAA’s Grokster ruling appeal

    Ironically, Grokster CEO Wayne Rosso told The Register last week that he has sought licences from the major labels represented by the RIAA to build a music sharing network not unlike the Apple iTunes Music Store model. Apple allows single tracks to be bought, burned and shared locally for a small, one-off fee. Rosso says the labels have refused his request.

    Rosso has asked the UK’s Office of Fair Trading (OFT) to investigate the labels’ refusal, claiming it is an example of anti-competitive behaviour on their part. He also plans to take the issue to the European Commission’s anti-trust team, he told The Register.

  • Dave Winer points to these Copyright Questions from a Blogger

  • Today’s Arlo and Janis raises a few questions about the differences between the CD and LP.

  • Kevin Heller has found a radical proposal in the Denver Post: Time to give up on copyright law? [pdf]

    So there’s hope that American copyright law will allow creators to control how their work is distributed. But any law that can be twisted the SCO way, enforced the RIAA way, extended the Disney way, or abused the Ziff-Davis way is a law that ought to be repealed. All it does is enrich lawyers and big companies, and they’d probably get along just fine without it.