August 15, 2003

2003 August 15 PM [3:31 pm]

(entry last updated: 2003-08-15 18:21:04)

While the power failure hasn’t had any direct effects here in Boston, the MIT network is tragically slow at DNS resolution, making the whole thing feel like we’re running on modem lines.

So it’s been particularly difficult to grab a minute here and there to see what’s going on - sorry

Interesting - I see that Ernie’s moved. I, too, am finding that I need to make a change, yet the need to migrate my archives while maintaining legacy links is a daunting set of contraints to impose - especially on the kind of short attention cycle that I’m going to be allowed with the start of a new semester. (Who am I kidding - I never seem to have enough time!). Maybe it’s time for me to make better use of the furd.com domain, which now just points to my MIT homepage. And I’ve already downloaded and started configuring WordPress……

  • Stunning - for promotional materials! Disney wins again in movie-trailer case

    A federal judge has delivered another blow to a company fighting for the right to show Disney movie trailers online. In an opinion dated Aug. 7 but released this week, U.S. District Judge Jerome B. Simandle said copying and digitizing the movie trailers constituted copyright infringement. He ordered Video Pipeline to return original copies of the disputed trailers to Disney unit Buena Vista Home Entertainment.

    From the opinion: Video Pipeline v Buena Vista Entertainment

    Plaintiff Video Pipeline moves for summary judgment on its declaratory judgment claims on the ground that its use of its clip previews and of Disney’s trailers is consistent with the fair use statute and is consistent with copyright law’s policy to promote learning and disseminate information. In addition, plaintiff moves for summary judgment on defendant Disney’s copyright infringement claim relating to Disney’s trailers, arguing that its use of the trailers is fair use, and that Disney is misusing its copyright and has not registered the trailers. Furthermore, plaintiff argues that it did not breach the 1988 Master Clip License Agreement with BVHE, that the trademark claim for money damages fails because there was no actual consumer confusion, and the unfair competition claim also fails because plaintiff does not compete with defendants and in fact promotes the home video sales and rentals of defendant’s movies.

    Defendant and counterclaim-plaintiff BVHE moves for partial summary judgment on its copyright infringement, Lanham Act, and state law claims. Defendant argues that plaintiff’s digitization and internet streaming of the in-store trailers, the clip previews and copying of Disney trailers occurring post-December 2000 constitute copyright infringement, and that it is entitled to summary judgement on its breach of contract, state unfair competition, replevin and conversion claims.

    Although I need to think about this more, this passage from the discussion of the fair use defense is surprising, because it appears to say that, even though the plaintiff’s use of the trailers/trailer-like materials supports the intent of the copyright holder (promoting sales of videos), the copyright holder should be allowed to limit the use:

    Plaintiff’s use of the copyrighted work is to increase sales of defendants’ movies, though for its own profit and for profit of different retailers and distributors. The clip previews and trailers are not created for the benefit of collectors of the copyrighted works, nor do they provide an additional fora of products to which consumers of the copyrighted works would also be drawn. Importantly, home video retailers and other distributors of these motion picture who generally pay for plaintiff’s services on a per-megabyte basis, not just renters and purchasers of the copyrighted movie, consume this type of product.

    The retailers and distributors of the copyrighted work and the owners of the copyrighted work have a similar purpose, that of selling and renting the videos of the motion picture movies. Especially here, where Disney has actually entered the market by creating its own trailers for promoting its movies, it cannot be said that plaintiff has created a transformative purpose, or that its purpose is substantially different than that of defendants. Because plaintiff has not changed the purpose or character of the use of the copyrighted images, the first factor strongly favors defendant.

    So, this is a defense of Disney by protecting Disney from someone who sells Disney products better than Disney does?

  • Although I saw headlines earlier, this is the first article that I’ve actually gotten on this announcement from Senator Norm Coleman, Chairman of the Senate Permanent Subcommittee on Investigation: RIAA Methods Under Scrutiny - see also this July 31 press release from Coleman’s office: Coleman Concerned Recording Industry’s Shotgun Approach To Issuing Rubber-Stamped Subpoenas Inadvertantly Targets Unwary Consumers.

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2003 August 15 AM [8:14 am]

(entry last updated: 2003-08-15 09:54:02)

  • Unsurprisingly, the Microsoft music offering is being examined with a fairly jaundiced eye: Sour Note to Microsoft Deal

    While welcoming the increased choice for music lovers, European Union regulators said the news bolsters their antitrust case against the software giant. Just last week, the EU accused Microsoft of trying to squash competing audiovisual software by including its Media Player with the Windows desktop system.

    It is demanding Microsoft either produce a version of Windows without the Media Player or incorporate rival programs into the package.

    See also Jupiter’s Mark Mulligan

  • Salon excerpts from the Fox vs Franken complaints. Although it may cost Franken some money, this could ultimately yield some material of the caliber of the Warner v Marx "Casablanca" material - see also this compendium of links from A blog doesn’t need a clever name.

  • Slashdot is probably the best start on the latest in SCO coverage, although GrokLaw remains the definitive source:

  • A couple of music industry education efforts get some coverage in MI2N:

  • A new strategem in the RIAA subpoena deluge: Consumer Fights Subpoena Seeking File Sharers’ Names [via Digital Media Wire] [pdf]:

    After serving Internet providers with more than 1,000 subpoenas demanding the names and addresses of people who share copyrighted music online, the Recording Industry Assn. of America has run into someone who wants to fight for her anonymity.

    The woman is a Verizon Internet Services customer accused of offering copyrighted songs on a file-sharing network for others to download free. The woman, who has hired a lawyer to contest a subpoena, apparently is the first to try to prevent her identity from being disclosed to the record companies’ trade association.

    [...] Sarah Deutsch, associate general counsel for Verizon Communications Inc., said the company - which unsuccessfully challenged two early RIAA subpoenas - has notified all customers whose names have been sought by the RIAA. One retained an attorney, Daniel Ballard of McDonough Holland & Allen in Sacramento, who asked Verizon not to comply with the subpoena because he planned to contest it.

    Verizon didn’t reveal the woman’s name, Deutsch said, and the RIAA last week asked a federal judge in Washington to compel Verizon to identify her.

    Ballard said he planned to respond by challenging the constitutionality of the RIAA subpoena process on grounds that it has violated people’s rights to privacy and due process.

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August 14, 2003

2003 August 14 AM [9:15 am]

(entry last updated: 2003-08-14 17:09:28)

  • Denise Howell reports that Ken Hamidi is on the California recall/gubernatorial ballot

  • A new push on COPA - the Child Online Protection Act: DOJ Pushes Stiffer Porn Law

  • I like the Berkman Center and the work they do, and Andrew Orlowski does go out of his way to nail bloggers (not to mention generate stunning screeds), but he also echoes my reaction to the e-mail I got about BloggerCon: Webloggers deal Harvard blog-bores a black eye (although, in case you missed my earlier recommendation, here’s the kind of thoughtful stuff that I wish Orlowski would do more of).

  • A new twist, with a lot of precursors: In refugee camp, a P2P outpost

    Deep in the tense Jenin refugee camp in the Palestinian West Bank, a new file-swapping service is daring record labels and movie studios to turn their piracy-hunting into an international incident.

    Dubbed Earthstation 5, the new file-swapping network is openly flouting international copyright norms at a time when many older peer-to-peer companies are trying to establish themselves as legitimate technology companies. One of the brashest of a new generation of file-trading networks, it is serving as a new test case for the ability of high-tech security measures and international borders to preserve privacy on the Net.

    [...] “We’re in Palestine, in a refugee camp,” said Ras Kabir, the service’s co-founder. “There aren’t too many process servers that are going to be coming into the Jenin refugee camp. We’ll welcome them if they do.”

    On its face, Earthstation 5 appears to be at the leading edge of the movie and music industry’s next nightmare–copyright-flouting networks based in a territory without strong intellectual property laws, with security built in that protects users from scrutiny. Indeed, the company is confident enough in its territorial immunity that it even streams and offers downloads of full albums and first-run movies like “Terminator 3″ and “Tomb Raider” directly from its own servers, an activity that has previously resulted in lawsuits and the prompt disappearance of predecessors.

    [...] He’s not worried about legal attacks from the RIAA or the Motion Picture Association (MPA), groups that have successfully shut down many of the most blatant copyright violators online, he said. In the West Bank and Gaza, the Israeli government has ceded civil law enforcement to the Palestinian Authority. That body has propagated copyright rules that protect Palestinian copyrights but don’t have strong protections for foreign works, he said.

  • From the BBC: Download battle reaches Europe

    Microsoft has launched a music download service in Europe after the success of a similar service run by rival Apple in the United States.

    CNet News: Europeans to get Windows music store; The Register: Microsoft beats Apple iTunes Music Store to Europe

  • From the Boston Globe: Choice cuts [pdf] - an article on the schizophrenic response of the music industry to mix CDs and their distribution.

    Mixtapes have left everyone happy — except for executives at the Recording Industry Association of America. In its eyes, they’re as illegal as counterfeit and pirate CDs. DJs are arrested for reproducing and distributing them; stores in Lawrence and Downtown Crossing have been recently raided for selling mixtapes and counterfeit CDs.

    It doesn’t matter if the record industry helps the scene thrive, says Frank Creighton, RIAA’s executive vice president and director of anti-piracy. “Just because somebody in the promotion department or marketing department gives [DJs] a CD and they turn their back on what they’re doing with it doesn’t mean what [DJs] are doing is legal,” he says. It’s an upstairs/downstairs predicament that has the business side of the industry objecting to copyright infringements while the creative side wallows in the benefits.

    Complicating the issue is the fact that the mixtape arena extends beyond professional DJs, who string songs together uniquely and stamp their mixtapes with the words “For promotional use only” to show they’re not profiting from the discs. There are also hungry Internet or basement DJs with no record industry contacts who download MP3 files, blandly bind them together, and sell them. Mixtape DJs generally consider the latter group scoundrels.

    "Director of Anti-Piracy" - there’s a title!

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August 12, 2003

2003 August 12 PM [7:11 pm]

(entry last updated: 2003-08-12 19:46:34)

  • Benny Evangelista pitches the NetCoalition push at the RIAA in terms that maybe will get a few more people interested in the issue: Piracy war may raise ISP fees:

    Internet firms tell music industry they don’t want cop role

  • Although this Register article wants to paint MIT and Boston College as heroes in the current RIAA P2P subpoena battle over matching IP addresses with student names, I’m feeling less sanguine after a recent e-mail exchange. But we’ll see.

  • Today’s Joe Conason’s Journal entry says it pretty well (see the earlier Furdlog entry)

    Fox News executives are either determined to waste Rupert Murdoch’s money on legal fees, or they secretly hate Bill O’Reilly and love Al Franken. They must be absolutely determined to sell Al’s forthcoming book, regardless of the cost in money and embarrassment. Otherwise, how can anyone explain the decision to sue Franken’s publisher — which will produce nothing except a bonanza of publicity for the brilliant comic and commentator?

    [...] Reading the text of the complaint against Franken suggests that the Fox suits may be losing their minds, or at least their sense of humor. They’re certainly taking themselves a bit too seriously. They protest that Franken’s subtitle is “likely to cause confusion among the public about whether Fox News has authorized or endorsed the book and about whether Franken is affiliated with FNC” and blather on huffily about their ideal of “a specific alternative to what its founders perceived as a liberal bias in the American media.” From there they descend into self-satire.

    In the Fox worldview, Franken is an “unstable,” “shrill” “C-level commentator” — unlike, for instance, O’Reilly (who screamed “shut up” at Franken in Los Angeles not so long ago). And unlike “national celebrity” O’Reilly, Franken’s “views lack any serious depth or insight.”

  • Derek points to the first Gartner/Berkman research paper: Copyright and Digital Media in a Post-Napster World. A quick scan suggests that Blythe’s team has put together an impressive and comprehesive overview in this document. It will be interesting to see how their pending predictive piece will turn out.

  • I can’t believe it’s taken me this long to find and post the ZDNet new focus area, where they compile their coverage, on SCO-IBM: News Focus: SCO-IBM

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2003 August 12 AM [7:47 am]

(entry last updated: 2003-08-12 14:07:19)

  • GrokLaw approvingly cites this opinion piece, from a WSJ editor, on the SCO game plan: SCO not exactly the lovable little guy

  • Salon writes about a coalition against a media consolidation threat: Keeping the Net neutral

    The issue of cable’s influence over the Internet is set to become a hot potato for policy circles in Washington. The Coalition [of Broadband Users and Innovators] and several of its member firms, acting separately, have already submitted to the Federal Communications Commission a number of proposals intended to bring to the broadband world a concept the Coalition calls “net neutrality.” Proponents of the neutrality rules describe them as simple and straightforward: if the proposals are enacted, broadband providers would essentially be prohibited from “discriminating” between the various types of content that come into your home. Under the rules, your cable company could not force you to visit Barnes and Noble instead of Amazon, or prevent you from using Microsoft’s online game system while allowing you to use AOL’s games, or exact a surcharge when you download videos that aren’t in the QuickTime format — the kinds of seemingly arbitrary practices that the Coalition says cable firms are itching to put into place.

    [...] Faced with a unified assault from some of the leading lights of the tech industry, the cable firms have also been privately suggesting that members of the Coalition harbor base ulterior motives for regulating cable. Certainly, cable companies say, the neutrality rules will benefit members of the Coalition. Microsoft, for instance, might want the rule to prevent cable systems from signing special deals with competitors to its X-Box Live online gaming system (such as Sony’s Playstation). The same goes for Amazon, Disney, and others — they could all stanch the power of rivals by preventing the sort of contracts that cable companies say will lead to faster adoption of broadband services. Moreover, cable firms complain that it’s hypocritical for Microsoft — which, during its long battle with the Justice Department, made clear its antipathy to government-imposed strictures on business — to be calling for regulations on potential rivals now.

  • Audible Magic in the news: Labels to take fingerprints

    The new arrangement, expected to be announced Tuesday, will see Universal give Audible Magic a “fingerprint,” or digital identification tool, for each song it releases, before albums are shipped to retailers. The company uses those fingerprints to identify copyrighted songs online or in other venues such as CD-manufacturing plants to help guard against unauthorized copying.

  • CNet News: ISP group challenges RIAA subpoenas

    NetCoalition, a Washington, D.C.-based policy group that represents companies ranging from small Internet service providers to Yahoo and DoubleClick, on Monday said it is worried that ISPs are getting drawn too deeply into the RIAA’s online enforcement efforts–an issue that has kept relations between copyright holders and Net service providers tense for years.

    The text of the letter sent to the RIAA; NetCoalition’s press release; NYTimes article: Internet Providers Question Subpoenas to Stop File Swapping [pdf]

  • From the There’s A Sucker Born Every Minute Department: The SCO Group Announces Signing of Intellectual Property Compliance License for SCO UNIX Rights; Slashdot discussion - SCO: Fortune 500 Company Buys License, IBM Retort; Cnet News - SCO Group wins Linux licensee

  • Andrew Orlowski, generally a premier screed writer for The Register, pens a surprisingly thoughtful piece about the hazards of leaving important decisions up to the court system: GPL goes to court (read the whole thing — it’s worth the effort!)

    The greatest strength of the GPL is that it’s a social contract, one that makes the most powerful, who can buy the legal system, think twice before going to law. And that’s pretty powerful.

    But with IBM’s counter suit against SCO explicitly defending its rights in terms of the GPL, it looks like The One Thing we Didn’t Want To Happen will happen. We’ll have a random judge poking holes in the GPL, on some perfectly defensible grounds that bear little relevance to the social obligations these imply. As if he’s supposed to know the difference.

    [...]

    It’s almost redundant to point out that resisting the setbacks that might result from a ruling involve civil disobedience on quite a wide scale - every sysadmin will fiind himself a potential criminal, and this is a horrifying concept for such a young nation as the United States. But maybe the US can catch a clue from the rest of us, and conclude that not only is the law an ass, but that selective civil disobedience is a walk in the park.

    Slashdot discussion: GPL in Court - Good or Bad?

    Odd Variants: This CNet opinion piece can be read too many ways, but it adds a little spice to this discussion: Can you stop a movement with a subpoena? - with the assertion that what’s going on here is an effort by IBM to use this fight to co-opt open source.

  • Penalties have been set in the MS patent infringement trial: Microsoft fined $520m for infringing patents; Slashdot - Microsoft Nailed by Software Patent; CNet News: Microsoft ordered to pay $521 million

  • Here come the Dutch: Dutch anti-piracy group targets file swappers

    Dutch anti-piracy organisation Protection Rights Entertainment Industry Netherlands (BREIN) is going after individual music files swappers and will bill or prosecute people who offer large amount of files through services as KaZaA, Gnutella and Grokster.

    [...] Some believe the threat is only intended as a deterrent. In recent months anti-piracy groups in Germany, Switzerland, Denmark and Italy have already attempted to bill file traders, but they are faced with strong opposition from ISPs who are worried they are being forced to police the Internet for illegal song copying. BREIN also largely depends on voluntary notice and take down procedures.

  • Yes, I know it’s really trademark law, but this is too good to pass on: Fox sues humorist Al Franken over ‘fair and balanced’ slogan

    Fox News Channel has sued liberal humorist Al Franken and the Penguin Group to stop them from using the phrase “fair and balanced” in the title of his upcoming book.

    Filed Monday in Manhattan, the trademark infringement lawsuit seeks a court order forcing Penguin to rename the book, “Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right.” It also asks for unspecified damages.

    Fox News registered “Fair & Balanced” as a trademark in 1995, the suit says. [Note, the USPTO listing says 1997, but who's counting?]

    Franken’s “intent is clear — to exploit Fox News’ trademark, confuse the public as to the origins of the book and, accordingly, boost sales of the book,” the suit said.

    Calls to Penguin and Franken’s publicist were not immediately returned. The book is due out next month.

    IANAL, but the USPTO listing describes this as a "typed drawing" trademark, and the ampersand (rather than the conjunction in the Franken title) is used.

    Note also that Fox has more recently also trademarked Fair. Balanced. Unafraid. I don’t want to think about what they have planned for that.

  • Last night, I saw the first of the MPAA ads that have been commented upon variously. Maybe I’m just not that connected (or too fixed in my way of doing things), but it’s a little hard to figure out what the MPAA is trying to accomplish. On the face of it, the ads are directed at telling everyone that movies are not just the product and province of industry fat cats, so downloading movies takes money out of the mouths of all sorts of worthy toilers in the movie business. Yet, my first reaction was "isn’t this a little bit of an overkill?" Aside from the claims of Jack Valenti, does anyone really think that internet downloading of movies is having a real impact on the industry’s bottom line — particularly given (1) the recent studies showing broadband use leveling off in favor of dial up and (2) the fact that the industry is having a record year?

    On the other hand, the MPAA has shown themselves to be terribly shrewd in this arena in the past. If we assume that’s the case, then there must be a deeper/subtler thing going on with this ad campaign. I can imagine some possibilities:

    • Preempting the eventual growth of broadband sharing by using these ads to change the culture of P2P file sharing (without looking like the ogre the RIAA is rapidly being seen as);

    • Softening up the legislature by making "slippery slope/domino theory" arguments so that the political appeal of now-unpalatable laws like the CBDTPA, the super-DMCA or Conyers-Berman will improve;

    • Rallying/educating their own troops, who very possibly are as enamored of music file sharing are the rest of the populace (after all, it is likely that Michael Jackson’s decision to go off-script on Conyers-Berman has stymied the RIAA); or

    • Speaking to a set of regulators, investors and/or consumer electronics companies, pointing out that further efforts to make file sharing easier (better hardware, compression algorithms, competing business plans) will be met with the full fury of the MPAA

    It’s going to be interesting to see where it goes, but I hope I’ll get to review the ad again soon, to see what the hidden messages in the ad might be.

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August 11, 2003

2003 August 11 PM [5:38 pm]

(entry last updated: 2003-08-11 17:38:13)

  • From Wired News: Streaming Video, Cheap and Easy

    As if the recording industry didn’t already have its hands full suing music file traders, pretty soon anyone will be able to wirelessly stream high-quality, uninterrupted video and audio from their PCs to their TVs.

    All they need is a pair of dongles, and voila — the movie they’ve downloaded from the Internet appears on their TV screen.

    [...] All of this will be possible thanks to WiMedia, or, technically speaking, 802.15.3, a new wireless standard developed by the Institute of Electrical and Electronics Engineers. The new standard, which shares the same chunk of airwaves as cordless phones, microwave ovens and other popular wireless protocols such as Wi-Fi and Bluetooth, would ensure fast, uninterrupted streaming media. Once a connection is made between WiMedia devices, the network automatically switches channels if it detects any interference from other technologies, said Robert Heile, chairman of the IEEE 802.15 working group and chief technology officer for wireless radio and software maker Appairent Technologies.

    802.15.3-compliant devices, which could be TV sets, stereo systems, computers, camcorders or any other consumer electronics devices, would connect wirelessly without the user doing anything, Heile said.

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2003 August 11 AM [8:19 am]

(entry last updated: 2003-08-11 11:43:55)

  • For a tragic debasing of the digital copyright debate, see this cycle of Politech postings, both as lead-in and fallout to Annalee Newtiz’ Alternet op-ed (cited in multiple locations already) Why I Infringe

    Here’s an example of just how muddle-headed this whole debate can get - consider this paragraph from her editorial:

    I’ve never been one for pussyfooting around when it comes to liberating what some corporation or mogul calls “private property.” I don’t really give a shit about capitalism. I think it’s a scam. Rich guys who own everything trade stocks, and the rest of us, who own the vast majority of nothing, watch welfare wither away. If we make something beautiful and try to make a living by selling it, we can’t own it. My beautiful thing will be the property of some company that has slapped a cover on it.

    Does this make sense to anybody? No wonder she’s tried to back off. Too bad she didn’t think as hard about this op-ed piece as she did about her latest posting to Politech - she might have done the cause a little good, instead of perpetuating the perception that those who combat the current copyright regime are a bunch of bomb-throwing anarcho-communists.

  • Cory also tosses this temptation my way, since it seems that my luggage has some kind of invisible tag telling the TSA that this bag needs inspecting: Printable felony sarcasm

  • BoingBoing picks up this Slashdot posting from Ian Clarke, the inventor of Freenet - Ian has decided that he can no longer live in the United States, given the current climate. Read Cory’s writeup before seeing Ian’s comment.

  • Benny Evangelista describes elements of the upcoming freshman orientation at UC Berkeley: Download warning 101:

    Freshman orientation this fall to include record industry warnings against file sharing

    Specifically they’ll be warned they can lose their Internet access or get slapped with a costly copyright infringement lawsuit if they aren’t careful about uploading and downloading files using programs like Kazaa.

    “It’s a chance for us to educate (dorm) residents about the new threats coming from the entertainment industry,” said Dedra Chamberlin, UC Berkeley’s manager for residential computing.

    [...] At UC Berkeley, orientation week starting next Monday will include a mandatory session called Cal Connect. Incoming dorm residents will not only learn how to connect their computers to the university’s high-speed network, but they will be warned that access could be terminated if they transfer 6 gigabytes worth of files per week, Chamberlin said.

    Students will be briefed on some of the latest developments in copyright law, including recording industry lawsuits in April that cost four students at colleges in New York, New Jersey and Michigan between $12,000 and $17,000 each in fines.

    The orientation session will also warn students about plans by the RIAA to start filing civil lawsuits against individual file sharers by late August or early September.

    [...] Today the university has streamlined the process, giving students only 24 hours to respond to an e-mail warning before cutting Internet access to get their attention.

    While supporting the idea of protecting copyrights, Chamberlin was critical of the record industry’s strategies, especially since it has cost her department about $15,000 to enforce the DMCA notices.

    Plus, the Penn State initiative (also see this) in this area are cited, albeit in little detail:

    Spanier said the music services could be provided the the same way colleges now provide cable TV connections to students, with discount fees included as part of tuition or student activities fees. He said he hopes to start pilot projects at several universities during the coming school year.

    Related link: The threats keep coming - Parents liable for kids’ P2P downloads

  • I missed this ZDNet column on the EU IP Directive; Proposed Euro law–everyone’s a crook. It discusses Ross Anderson’s critique of the proposal: The Draft IPR Enforcement Directive — A Threat to Competition and to Liberty

  • The SCO beat goes on. A User Friendly cartoon, and a surprisingly clear column from Hiawatha Bray in today’s Boston Globe: sadly, with their &auot;new look" I cannot find today’s Upgrade column…..

    Here’s the link - eventually, it might even be possible to find it on the Globe WWW page!: Linux users have IBM on their side [pdf]

    [The EFF's Eben] Moglen argues that even if IBM misappropriated SCO software, that’s a matter between IBM and SCO, not the users of Linux. Suppose you buy a book containing plagiarized material. The victim of the plagiarism could sue the publisher and the author, but he’d never get a dime from you or anyone else who’d merely bought the book. Moglen believes the same principle should apply to software.

    But apart from this, Moglen believes that SCO cut its own throat when it demanded licensing fees from Linux users. To understand why, you’ve got to know a little about the license that governs the use of Linux software.

    It’s called the General Public License, or GPL, and it was born at the Free Software Foundation, a Cambridge-based outfit with a theological commitment to the unfettered exchange of computer code. Most computer software licenses set strict limits on copying and modification of the code. But code licensed under the GPL can be copied and modified freely. And nobody can levy additional licensing fees on software distributed under the GPL.

    Which raises a problem for SCO Group. Up until May, SCO was itself a Linux distributor, and Linux can only be legally distributed under the terms of the GPL. Under that license, SCO cannot demand additional licensing fees on the software. The moment SCO did so, it violated the license.

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August 10, 2003

2003 August 10 [9:46 am]

(entry last updated: 2003-08-10 10:56:18)

  • From Slate: Steal This Book:

    The latest Harry Potter was digitally pirated. What’s next?.

    Bibliophiles find absurd the idea that people will ever abandon the sensuous pleasures of reading–the smell of the paper, the heft of the book–for dematerialized text on a screen. But record collectors said the exact same thing about the compact disc, complaining about the sterile perfection of digital sound and the disappearance of lavish album sleeves. Since then, a new generation has emerged that is totally comfortable with the idea of music as disembodied, digitally encoded information. Instead of records, the new fetish objects are the sleekly futuristic-looking MP3 players and iPods, which are prized more for their portability, ease of use, and ability to amass vast quantities of sound files than for the actual music coming out of them.

    The Slashdot discussion, Are We About To Enter The Age of Book Piracy?, points out that book piracy (copyright infringement) has been around for centuries, and it may well be that the economic incentives are dramatically different (not to mention that this industry has already mastered certain price discrimination models already (hardcover v paperbacks, v libraries).

  • Issues around the first sale doctrine aren’t limited to books and CDs: The hidden cost of hardware

    Michael Tague couldn’t believe his luck. As president of Win.Net, a Louisville, Ky.-based ISP, he had purchased several Network Appliances (NetApp) data storage systems in the past and was pleased with their performance. So, when he found a used but serviceable NetApp model on eBay for a mere $4,000 - a fraction of its original cost - he was delighted.

    But his delight turned to anger when he contacted NetApp to purchase a maintenance agreement for the used system. “They weren’t interested in negotiating the maintenance agreement until we paid $15,000 to relicense the operating system that came with the unit,” Tague says. “No way we were going to pay that. They got paid for the software when they originally sold the system. Why should they get paid again? So, that NetApp box is sitting in a corner - we’re not using it except for spare parts.”

    Tague’s experience is increasingly common for those purchasing dedicated hardware systems secondhand. Manufacturers of systems with proprietary operating systems such as high-end routers, data storage devices, and a variety of telecommunications equipment, now generally say their software license agreements prohibit transfer of the software when the hardware is resold.

    Slashdot discussion: Hardware Manufacturers Gouging Customers

  • This NYTimes article on the advent of CinemaScope and other wide-screen movie formats raises the obvious question - why aren’t these industries innovating their way out of the digital dilemma that they have created for themselves? Why It’s a Wide Wide Wide Wide Screen [pdf]

    The gravest threat came not from newly liberated actors or aggressive federal trust-busters (nor from Hollywood reds or Washington red-hunters), but rather from television. The cathode ray box, with its diminutive screen, had already begun its conquest of America’s living rooms, and its exploding popularity seemed to prophesy the obsolescence of movie-going as a central mode of pop culture consumption.

    [...] With the 1953 New York premiere of a Biblical sandal-and-toga epic called “The Robe,” Twentieth Century Fox introduced CinemaScope, a proprietary name for a process developed by a French engineer named Henri Chrétien in the 1920’s, to which Fox had acquired the rights. Chrétien’s “hypergonar” adapters made use of an optical trick called anamorphosis, whereby a curved lens placed in front of an ordinary camera could squeeze a large field of vision into the frame. Another lens, affixed to the projector, would reverse the process, spreading out the image onto an extended screen.

    The anamorphic effect had been explored by 19th-century scientists and Renaissance painters, including Holbein, who famously used it to embed secret symbols in “The Ambassadors” (1533). But as far as Hollywood was concerned, Chrétien had found the killer app.

  • Mash-ups discussed in Salon: The mash-up revolution

    Mash-ups might be the ultimate expression of remix culture, which has grown out of a confluence of influences: widespread sampling, DJs as performers, and the proliferation of digital technology, as well as a tangle of diverse musical styles from jungle to house to garage and techno.

    [...] From Vanilla Ice to the Verve, the controversy over sampling rights and the prohibitive costs of clearance payments, potentially due to publisher, label and artist, keep mash-up bootlegs underground, perhaps contributing to their allure. Ironically, artists who sampled aplenty in the ’90s, such as the Beastie Boys and the Chemical Brothers, aren’t necessarily eager to grant permissions. Touting the “buy it don’t burn it” philosophy, Missy Elliot, whose “Get UR Freak On” has been mashed 50-plus times, tells consumers to turn their backs on bootleggers.

    After radio stations received cease-and-desist letters for playing mash-ups, “Freak Like Me,” mashed by Girls on Top (aka Richard X) with Adina Howard backed by a Gary Numan track, was re-recorded with The Sugarbabes’ vocals to circumvent legal difficulties — and hit No. 1 on the U.K. charts.

    [...] There are potential violations galore in the world of sampling, [Prof E. Michael] Harrington explains, but the law is tricky. In some cases the lack of qualitative similarity between different songs has led judges to conclude that sampling is not copyright infringement, as with the U.S. Supreme Court’s 1994 decision that 2 Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman” was acceptable under the fair-use doctrine. “At its best, the law reflects our values,” says Harrington. “When it’s not, it just regulates them.”

    As far back as Mozart, he adds, “There’s an age-old tradition of fooling around with music everyone knows and casting it in a new light, giving it new meaning.” It’s a murky business when ideas of authorship and artistic control come into question. When is it filching, when is it flattery and when is it just funny?

    Related Salon article: A love song to bastard pop

  • Microsoft faces some new hurdles as it tries to make Windows Media a global standard/tollbooth: Microsoft media strategy at risk?

    Although the outcome is uncertain, and some analysts said a settlement that protected the status quo was likely, the [EU antitrust] regulators’ stern warning raised the possibility of new hurdles for Microsoft’s media strategy. The company has relied in large part on the omnipresence of its software to promote its proprietary Windows Media audio and video format to everyone from record companies to movie theaters. A forced unbundling could diminish that appeal, analysts said.

  • MIT wins a round: Court blocks some file-trading subpoenas. The Globe’s Business in Brief for yesterday put it this way:

    A federal judge in Boston ruled late Thursday that Boston College and MIT do not have to honor subpoenas issued this summer by the Recording Industry Association of America, which is demanding the names of students it accuses of sharing copyrighted music files on the Internet. US District Court Judge Joseph L. Tauro said the schools are not obligated to release the information because the subpoenas were issued from a court in Washington, D.C., and not from the US District Court in Massachusetts. (James Collins)

    Find the order here (EFF). Lawmeme article: Boston Judge Quashes RIAA Subpoenas

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August 8, 2003

2003 August 8 PM [3:44 pm]

(entry last updated: 2003-08-08 18:56:30)

  • Here’s Mary Hodder’s posting on the compulsory licensing discussion I mentioned this morning: Compulsory Licensing Cont’d: Ernie Miller on Pho, In Response to Derek Slater. And she’s already put together her thoughts on that nonsensical New Scientist piece about fine art and digital copying: Digital Photos on the Internet Ripe for Copyright Infringement - check out the comment, which suggests that there is caselaw already out there asserting that copying a public domain artwork is not copyright infringement.

  • The Tech has posted their RIAA article: RIAA Sues MIT, Seeks Name of Music Sharer. I note that Jeff Schiller’s quotes are quite carefully worded:

    “MIT believes in protecting the privacy of students, and we don’t yield information willy-nilly, but the bottom line is … we can’t necessarily protect the identities of our students when they engage in illegal file sharing,” [Jeff] Schiller said.

    “Nobody is above the law, whether they’re a student or a grandparent,” Weiss, the RIAA spokeswoman, said. “If they’re breaking the law, they’re breaking the law.”

    “My advice to people who are using KaZaA for sharing copyrighted files is, ‘Now would be a good time to stop,’” Schiller said.

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2003 August 8 AM [7:25 am]

(entry last updated: 2003-08-08 09:55:11)

  • And, as I leave for my next meeting of the day, let’s all enjoy Steve Martin’s contribution to the NYTimes Op-Ed: It All Depends on What You Mean by ‘Have’ [pdf]

    Let me try and clear it up for you. I think what you were trying to say was, “At any time, did anyone in Iraq think about, wish for, dream of, or search the Internet for weapons of mass destruction?”

    Of course they did have. Come on, Iraq is just one big salt flat and no dictator can look out on his vast desert and not imagine an A-test going on. And let’s face it, it really doesn’t matter if they had them or not, because they hate us like a lassoed shorthorn heifer hates bovine spongiform encephalopathy.

  • New Scientist raises a nonsensical spectre - more interesting will be to think more formally about why this whole thing is foolish - the whole question of ‘original’ gets to be quite interesting when you think about paintings: Piracy warning over digitised fine art

    A scheme to digitise famous paintings that was unveiled last week by the National Gallery in London, UK, may be placing the collection at risk of digital piracy. Now music and movie makers are warning the world of fine arts to act quickly if it wants to prevent the same kind of high-tech piracy that is crippling their industries.

  • A Wired news article on the normative complexities of supplying useful tools - they get used in ways you didn’t expect: 101 Uses for Apple IChat

  • Derek’s tracking a discussion of what it would take to make Terry Fisher’s music distribution plan operational; see Fisher’s Plan and Other Interesting Proposals; Gaming Fisher’s System and Compulsory Licenses Discussion on Pho

    What I can say is that there’s a lot here to digest; and I haven’t had the time to do so yet. But I think the hardest part of the whole problem will be convincing the music industry that the economic gains they have received from converting their product into a digital object should more than offset their perceived losses they will certainly associate with a compulsory licensing scheme. Until that argument gets made in a fashion that convinces the rest of the world (the industry will never be convinced, IMHO), there will never be the political traction necessary to get this approach through Congress.

  • MI2N is also carrying this threatening press release: MP3 Liability: Are You Responsible For Your Children’s Downloads?

  • The PAN Network is promoting Nabster - a tool that purports to inserts a fingerprint into digital media files as they are requested over HTTP. How exactly this is supposed to prevent piracy is a little more obscure, especially since there have been plenty of demonstrations of how one might remove watermarks.

  • An ironic note from The Register: RIAA ignores court battles, picks Verizon to host site

    In its endless quest to keep the RIAA’s Web site up, hosting company TST manages to set new records not in uptime but in third-party service blunders. The latest gaffe has TST moving the RIAA’s servers onto Verizon’s network - an ISP the music labels have fought in court.

  • Reported many places, but missed by me due to a day of meetings: IBM sues SCO for selling Linux. A good example of the anger out there is in this kuro5hin article: Let’s Put SCO Behind Bars

    Slashdot has as good a rundown of the press as any: IBM Countersues SCO, And More! - but read GrokLaw’s preliminary analysis: SCO, Meet the GPL –

    IBM’s Legal Calvary Charges

    It also means that while Darl was shooting his mouth off, IBM was taking notes, and the majority of the other counterclaims are based on SCO spokespeople saying things to the press that IBM says were deceitful and damaging and derogatory, harming IBM’s business and reputation, harming the reputation of Linux, and interfering with its potential customers, and they say their tortious conduct was and is willful and deliberate, hence they should be fined treble damages, because, they tell the court, this is an exceptional case, meriting such sanctions. They also ask the court to stop them from any further infringement of their four patents by ordering SCO to quit manufacturing or selling or distributing the infringing products listed above. So, if the court says yes, that’s pretty much the end of SCO’s business, both software and the licensing plan.

    [...]

    And finally, a song of praise to the GPL. It’s [sic] shining hour has arrived. And it is shining manfully. If you were longing for the GPL to have its day in court, you just got it. It is leading the charge.

  • The Register: Wanadoo is not caching your KaZaA

    Wanadoo Netherlands has suddenly dropped Joltid’s PeerCache, software designed to reduce costs of network traffic by caching frequently traded files within file-swapping system such as KaZaA, saying “it was only an experiment”.

    It seems that Wanadoo’s parent company in Paris became a little too anxious about copyright liability. In a corporate statement describing the experiment a couple of weeks ago, Wanadoo underlined that it didn’t want to encourage “infringements on copyrights”.

    Peercache is built to work for FastTrack, one of the most widely used P2P protocols. Wanadoo’s Dutch subsidiary was one of the first ISPs to work with the software. It cached 0.8 terabyte of frequently asked files (albeit not in any recognisable form) on local servers, thereby reducing the volume of international traffic by 25 per cent or more, according to Wanadoo business development manager Lammert van Raan.

  • Today’s Boston Globe indicates that the RIAA is responding to the MIT objections to their subpoena: RIAA steps up bid to force BC, MIT to name students [pdf].

    This article from the Globe and Mail describes differences in the Canadian situation: Can it happen here? [pdf]

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August 7, 2003

2003 August 7 AM [7:50 am]

(entry last updated: 2003-08-07 12:05:44)

  • Mary points to this guardian article on viral marketing featuring the spoof Metallica copyright infringement lawsuit: Word of mouse

  • From the NYTimes: Oyez! The Supreme Court, Now on MP3

  • I missed this yesterday: Congress, the new copyright bully on ACCOPS:

    Rather than making a seemingly endless number of ad hoc proposals, Congress needs to develop an integrated policy about criminal copyright infringement. To do so, Congress needs to realize two things. First, it is not acceptable to put average Americans at the peril of going to jail for doing everyday activities. Second, if the existing laws are not yielding the desired results, perhaps they were bad policy, in which case making them tougher only compounds the initial policy failure.

    [...] If the record industry thinks that its problems warrant litigation, they should use the laws that are already on the books. Of course, those lawsuits come at some risk, as they require the industry to sue its customers. But the record industry, much more so than government prosecutors, can determine the cost benefit of suing customers to reduce infringement. If the record industry decides that lawsuits are not worth it, what does that say about the need for criminal enforcement?

    Thus, Congress’ anger at the American public for continuing to infringe is misdirected. Instead, Congress should be angry with copyright owners for failing to use the many powerful tools that Congress has already given them. If Congress wants a sensible policy to stem infringement, try this: Before giving industry advocates new laws, make them prove that they took full advantage of the laws that Congress gave them the last time they asked.

  • Slashdot chronicles the ever-more-bizarre SCO claims: SCO Targets US Government, TiVo, citing several articles. A particularly incisive comment:

    [...] I think this isn’t only a last desperate gasp by SCO for some money, I think its a desperate gambit by proprietary software interests to kill OSS before it kills them. The stock manipulation thing is too transparent to be the only goal of the SCO attacks.

    Or maybe I’m just giving too much credit and being too conspiracy theory. What the heck, it’s interesting to consider.

    As an aside, how bitter is the cup of vindication Stallman must be sipping from right now? And those who thought he was a bit too evangelical in his stance must at least be taking a moment to reflect that what he has been warning and working against is now beginning to happen right in front of us. Additionally, had people been more willing to acquiesce to the idea of using GNU/Linux as the name of the package used, it may have been more readily appearant to even laymen that even were SCO’s claims valid their “contributions” still represent a ridiculously small amount of the overall package and thus their claim would have been more obviously worthless. I’ll leave that for others to debate.

    In related news, CNet has an interview with Red Hat CEO

    Matthew Szulic on the Red Hat suit.

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August 6, 2003

2003 August 6 PM [1:52 pm]

(entry last updated: 2003-08-06 15:18:42)

  • Speaking of revisionist historians, Ed Felten jumps into to correct some misconceptions, as well as demonstrating what the phrase "chilling effects" means: Revisionism

  • Via The Shifted Librarian (who also points to Z’s Legal Affairs article of a couple weeks ago) links to a BBC article, Stopping the pop-swappers, wherein the BBC’s interpretation of CD sales statistics leads to a different conclusion:

    In America and the rest of the world the biggest culprit in falling music sales is large-scale CD piracy by organised crime.

  • Anita Ramasastry discusses privacy here: Why the ACLU Is Right To Challenge The FBI’s Access to Library, Bookstore, and Business Records Under the USA PATRIOT Act.

    And, if you missed it before, I highly recommend reading this provocative Andrew Odlyzko paper (something I got to do on this trip): Privacy, Economics, and Price Discrimination on the Internet. A recapitulation of a lot of Hal Varian’s economics, but very well put together with the problem of privacy on the Internet (and with an excellent bibliography).

  • From Benny Evangelista at SFGate: Kazaa use down after threats:

    Crackdown’s impact on file sharing unclear, which includes the following Neilsen/Netratings statistics:

    Here are

    the number of times each file sharing program was used over a seven-day period:

    File sharing programs 7-day period beginning

    6/29/03

    7-day period beginning
    7/13/03
    7-day period beginning
    7/27/03
    Kazaa 6,526,000 5,409,000 4,912,000

    Morpheus 272,000 244,000 NA
    iMesh 255,000 227,000 271,000
    BearShare 192,000 308,000 234,000

    As well as this very important observation that I see here for the first time in print:

    The latest Neilsen data were challenged by the Australian firm that distributes Kazaa. A spokesman for Sharman Networks Limited said its data since June 25 show only normal seasonal fluctuations in Kazaa usage since June 25, when the RIAA announced plans to sue individuals who offered copyright protected songs for others to download.

    In addition, Kevin Bermeister, chief executive officer of Altnet, a Woodland Hills (Los Angeles County) firm that sells songs legally using Kazaa, said there’s been a consistent 15 percent drop in downloading each of the last three years during the summer, when some of the biggest users, college students, are on vacation.

  • Today’s copy (August 6; V 123,No 30) of The Tech has a pretty thorough rundown of the RIAA suit against MIT, but it’s not online yet. If it doesn’t come up soon, I’ll have to transcribe and post it myself

    A few key (disquieting) quotes:

    "The conversation we had with TDC [a fraternity] was, ‘If you provide us the logs, then …. once we get a legitimate subpoena, then we can act legitimately,’" [Prof James] Bruce said.

    "’If you do not provide us the [DHCP] logs, then … once we get a legitimate subpoena the only recourse we have it to point to you,’" Bruce recalled MIT saying to TDC.

    [...]

    As a result of the matter, MIT will revise its agreement with fraternities, sororities, and independent living groups — for whom MIT provides free high-speed Internet access — "to say that they will need to provide us the logs on a reasonable basis."

    [...]

    "I believe that the decision of whether we should change the fundamental architecture of our network so we can always know who’s using it, which may, by the way, add significant burden, … that’s a decision the community has to make," said Jeffrey I. Schiller ‘79, MIT’s network manager. "I think that’s a community decision and should be made that way."

  • In re; Fritz Hollings’ retirement announcement - here’s the transcript from his WWW site: TRANSCRIPT: Hollings Not to Seek Re-Election in 2004.

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2003 August 6 AM [8:39 am]

(entry last updated: 2003-08-06 10:04:05)

I have a lot of catching up to do, both online and in the real world. The SCO stink is particularly notable, but I need to get two off-topic thoughts off my chest:


  • Joe Lieberman is a weasel: Lieberman Denounces Tilt to the Left [pdf] So, revoking the foolish Bush tax cuts is now a tax increase?

  • Fritz Hollings may not understand the relationship between copyright and innovation, but he certainly does understand the role of the president: Hollings Plans to End Half-Century in Politics [pdf]

    “We’ve got the weakest president and weakest governor in the history of my 50 years of public service,” he said. “I say weak president, in that the poor boy campaigns all the time and pays no attention to what’s going on in the Congress. Karl Rove tells him to do this or do that or whatever it is. But he’s out campaigning.”

    “He’s a nice fellow,” Mr. Hollings said of President Bush. “You can’t find a better fraternity brother.”

    OK - I just needed to do that - I saw Sen Hollings’ comments once on CNN while I was away, and it was immediately sanitized out of all subsequent coverage that I saw anywhere else.


  • Kevin Miller points to, and comments on, this Marci Hamilton column: Why Suing College Students for Illegal Music Downloading Is the Right Thing To Do

    While Prof. Hamilton makes some good points, such as

    In a culture without copyright, only the rich, or the government-sponsored, could be this culture’s full-time creators. Poor artists like Loretta Lynn would have to flip burgers long into their music careers - and might even give up on music entirely.

    she seems to have missed a key dimension of the issue - the fact that copyright and technology have necessarily adjusted in concert with one another. She seems to feel that all that technology has done is make it easy for people to forget that copyright is relevant (see next item), without noting that the availability of these technologies has also lowered the barriers that the putative next Loretta Lynn will have to overcome in order to (a) get her music out there and (b) develop mechanisms to exploit her creation economically.

    Overall, I think Prof. Hamilton’s article conflates the concept of copyright with the incarnation that we have today. As others have noted, the argument is not generally about whether there should be copyright - rather, it’s about what sort of copyright is able to compensate creators without inhibiting innovation in both the artistic and technological spheres. This is a balance that is going to have to be struck - I just wish that Prof. Hamilton had done a better job showing that it has always been there.

  • A New Pew report on music downloading: Music Downloading, File-sharing and Copyright: A Pew Internet Project Data Memo From the Introduction:

    The struggle to enforce copyright laws in the digital age continues to be an uphill battle for content owners. Data gathered from Pew Internet & American Life Project surveys fielded during March - May of 2003 show that a striking 67% of Internet users who download music say they do not care about whether the music they have downloaded is copyrighted. A little over a quarter of these music downloaders - 27% - say they do care, and 6% said they don’t have a position or know enough about the issue.

    The number of downloaders who say they don’t care about copyright has increased since July-August 2000, when 61% of a smaller number of downloaders said they didn’t care about the copyright status of their music files.

    Of those Internet users who share files online (such as music or video) with others, 65% say they do not care whether the files they share are copyrighted or not. Thirty percent say they do care about the copyright status of the files they share, and 5% said they don’t know or don’t have a position.

  • Slashdot also has a story about one of ILaw’s favorite jurisdiction cases, HavenCo: HavenCo In Trouble?, based on this CNet News story, Has ‘haven’ for questionable sites sunk?

  • The Register has an article that dredges up a few bits of copyright history that I’d not seen before: ‘Golden Age of Free Music’ vs ‘Copying is Stealing’

  • And we have a number of comments on the SCO "licensince" blackmail

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August 3, 2003

2003 August 3 [10:33 pm]

(entry last updated: 2003-08-03 22:39:49)

  • Hey, I’m on the road, and I don’t have time for much, but I’ll certainly make time for this - from today’s NYTimes wedding announcements (thanks to Karen for alerting me!): Melissa Henriksen, Siva Viadhyanathan [the pdf will have to wait until I get back to the office] Congratulations!!

    I now know two people whose weddings were listed in NYTimes - my mom and now Siva

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