August 26, 2003

2003 August 26 PM [1:38 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.”

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2003 August 26 [6:42 am]

(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.

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