August 27, 2003

2003 August 27 AM [9:10 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]

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2003 August 27 - A look at Bunner [7:08 am]

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

Basics

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.

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