September 29, 2003

A Stroll through Patent History [12:57 pm]

And a look at how the other side of IP, disclosure to the public, doesn’t always seem to make economic sense — the unexplored question, of course, is whether the actions of these subjects led to a deceleration or acceleration in overall innovation and technological development (a very tough research question in this context, although an examination of trade secret protected domains might be a worthwhile parallel): A Stroll Through Patent History [pdf]

The conventional wisdom among economists has been that a robust patent system helped transform the United States into an economic powerhouse. And this may be true. But, Professor Moser concludes, what was good for America and Britain in the 19th century is not necessarily good for emerging, largely rural economies in countries like Denmark, the Netherlands and Switzerland.

“In economics, we are taught that patent laws are what create incentives for innovation,” she said. “But many of the best innovators in what was the high technology of the day came from some of the smallest countries in Europe, and these nations did not have patent laws.”

Professor Moser found, for example, that Swiss inventors tended to concentrate their efforts in watch making and specialized steel making for scientific and optical instruments. Their innovations were exceedingly difficult to reverse-engineer and thus were successfully guarded as trade secrets.

“There were competitions in England to reproduce some Swiss innovations in steel,” Professor Moser said. “But the English just couldn’t figure out how to do it. The Swiss would have been silly to patent these innovations.”

That is because the purpose of patents is twofold: to protect the inventor and to speed technological progress. Thus, patent laws require that an inventor, in a quid pro quo exchange for the limited monopoly that a patent provides, disclose his methods to others. “Countries without patent laws have much larger shares of their innovations where patenting would have been a bad idea,” Professor Moser said.

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Downhill Battle WWW Site Launch [12:39 pm] launches their legal defense fund today:

Downhill Battle is very proud to announce the Peer-to-Peer Legal Defense Fund. The fund was created to support the families and individuals that have been sued by the record companies and to help fight the RIAA suits. The Defense Fund’s contribution system runs on a peer-to-peer model: rather than collecting contributions centrally and later distributing them, donors give directly to a family or individual that’s been sued. Our open source software tracks donations and rotates the name that appears in the contribution box so that the person with the lowest contributions so far is presented to potential donors. Over time, contributions are distributed evenly without the need for a middleman.

We hope you’ll join the fight against the RIAA lawsuits by making a contribution to one of the people who’s been sued:

See the flyers

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ACLU Helps BC RIAA Target [12:37 pm]

NYTimes — A.C.L.U. Challenges Music Industry in Court [pdf]

Stepping up its involvement in the legal conflict over file sharing, the American Civil Liberties Union has filed a motion to stop attempts by the music industry to get the name of a Boston College student who is accused of being a large-scale file trader.

[...] The civil liberties group argues that the constitutional rights of its client, referred to as Jane Doe, would be violated if her college, which is also her Internet service provider, were forced to reveal her name. The industry subpoena “seeks to strip Jane Doe of her fundamental right to anonymity,” according to the group’s court filings.

[...] “We’re not saying that they can’t ever get her identity,” said Christopher A. Hansen, a lawyer with the American Civil Liberties Union. “We’re only saying if the industry wants her identity, then they have to do it in a fair way.”

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Donna Channels Charlie Nesson [12:30 pm]

Donna’s Copyfight post over the weekend raises a question that Charlie Nesson has posted to the Pho list: can artists just use standard net hacktivist tools to impede infringement of their copyrights without resorting to changes in the structure of the internet? Or have such methods already been outlawed by other efforts? Donna tracks the discussion here: Let the Music Pay III

Update: Derek points out the obvious problem — at what point are we really ready to give anyone the presumptive right to undertake a DoS? See Raise Your Hand If You Think DoS Attacks Are Good

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Jenny Rises To OCLC’s Defense [11:24 am]

Jenny Levine unhappily defends OCLC’s suit of The Library Hotel in Make Sure You Hear OCLC’s Side of the Story. Earlier coverage is here (A new trademark suit) and here (NYTimes on the Library Hotel/Dewey Lawsuit).

Although Jenny’s cites of the OCLC press release seem to make a good point, Infringing Actions points out (the Blogger link may not get you there) that a search at the PTO site of the trademarks “Dewey” or “Dewey Decimal Classification” show that the registration is for publications - "periodical publication; namely, an index relating to a system of classifying the field of human knowledge," for example. One registration, "promoting public awareness of a library classification system ," may be pertinent to the Library Hotel, but the others are not close.

Infringing Actions concludes:

But, the OCLC lawsuit does not claim that the Library Hotel has misappropriated the system itself; indeed, while refinements of the Dewey Decimal System are apparently ongoing, the basic system itself has been in existence for more than 100 years. The question appears to be whether, when viewed in the context of hotel services, the references to the DEWEY marks would cause a consumer to believe that the hotel services are somehow sponsored, approved, or sourced by the OCLC. This appears to be a question of fact that may very well preclude a quick resolution of the allegations.

[...] In the end, the Library Hotel may have decided that it made more sense to fight this publicly, enduring the free exposure that news of the lawsuit would bring, than it would have been to settle it quietly by taking a license.

Yes, it may be that the OCLC has to defend the trademark, but I think it’s easy to see that there might be very good reasons why the hotel’s management elected to let the dispute end up in a courtroom.

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Fallout: @Stake Firing [8:53 am]

A small strike back at the firing of Daniel E. Geer, the @Stake employee whose report was contrary to company interests — a link to the report in question in PDF form: CyberInsecurity: The Cost of Monopoly — How the Dominance of Microsoft’s Products Poses a Risk to Security [via BoingBoing]

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Incomplete NYTimes Article [8:06 am]

The title is suggestive, but the posting is incomplete: Guarding Privacy vs. Enforcing Copyrights [pdf]. I’ll have to look at the dead tree version to see what’s missing.

The issues came into sharp focus recently in two data firestorms. In one, Internet denizens expressed outrage over the lawsuits the recording industry filed against 261 people accused of being large-scale swappers of pirated music. At the same time, equally fierce outrage met news that JetBlue Airways had handed over customer records to a military contractor for a test program to blend the data with personal financial information from another company to spot likely terrorists.

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RFID in the NYTimes [8:04 am]

How to Find That Needle Hopelessly Lost in the Haystack [pdf] is the NYTimes’ look at RFID in products and the privacy issues. Slashdot discussion: NYT on RFID

But as business’s interest in the technology grows, so do efforts by privacy advocates to place strict limits on its use.

“Very few people grasp the enormity of this,” said Katherine Albrecht, director of Citizens Against Supermarket Privacy Invasion and Numbering, a group that was founded in 1999 to protest the use of frequent shopper cards and credit cards to collect data on individual consumers’ purchasing habits.

Ms. Albrecht and other critics say that companies and government agencies will be able to monitor what people read or where they assemble from radio tags embedded in their books or woven into clothing. Unlike bar codes, which cannot be scanned unless a laser has a direct line of sight to them, the radio tags can be read through walls, and multiple tags can be read in an instant.

“R.F.I.D. certainly has value in the supply chain and in inventory management,” said Beth Given, director of the Privacy Rights Clearinghouse in San Diego. But she added that “there are so many potential issues once it gets beyond the point of sale that consumer protections need to be written into law.”

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The CD Price Cuts — Fallout [7:55 am]

Today’s NYTimes suggests that Universal’s CD price cuts are going to be felt in unheralded, but unsurprising, places: CD Price Cuts Could Mean New Artists Will Suffer [pdf] The agonies of industry change, or something more sinister?

Initially delighted by the promise of lower CD prices, Mr. Groeger and other independent retailers quickly soured on the details of the plan, which he says will hurt independent music stores and developing artists. The plan squeezes stores’ profit margins on each CD and ends promotional subsidies to retailers to push new albums like Thursday’s.

“I care about that band a lot, and I care about developing artists more than anyone,” Mr. Groeger said Saturday in a telephone interview. “But I told him it is a two-way relationship. They are hurting me with these new policies. I don’t see why I should help them out.”

[...] In addition to ending various promotional subsidies, these critics say, Universal’s new pricing system further squeezes the profits of the hard-pressed independent music stores and specialized chains like Music- land or Tower — the places that typically give artists their start. Such stores have already been closing in droves, with hundreds more expected to shut down this year.

“Emerging artists are going to be shut out because of the fewer dollars flowing to independent retailers,” said Robert Haber, founder of CMJ Network, which tracks new performers and college radio playlists. “Things that are not good for independent retailers are not good for emerging artists.”

If the policy thwarts the development of new talent, it could boomerang to hurt the major labels as well. Building audiences for the new acts that might become next year’s blockbusters is a growing problem, label executives say. The swift consolidation of the commercial radio business and its use of more scientific market research is making it harder to get air time for unfamiliar artists. Meanwhile, mass merchandisers like Wal-Mart Stores and other chains like the electronics giant Best Buy, which seldom stock any unproven artists, increasingly dominate music sales. Mass merchandisers and chains together now make up more than 80 percent of the market.

[...] But Universal also faces a market dominated by the mass merchandisers, said Michael Nathanson, an analyst with Sanford C. Bernstein. “It is going to be ugly for the independent stores,” he said, “but the music companies are in a no-win position right now.”

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Salon Reports The IEEE’s Not Doing Much Better on E-Votes [7:43 am]

From Salon: Another case of electronic vote-tampering?

Advocates of the audit-trail requirement claim that the IEEE standards group has been hijacked by a “cabal” representing the voting equipment industry; this industry coalition has systematically attempted to “disenfranchise” its critics by abusing technicalities in the meeting bylaws, these activists charge.

“I think they do want to prevent stronger security methods from going into the standard,” says David Dill, a computer scientist at Stanford who is one of the leading advocates of verifiable ballots in electronic systems. “I feel that we are being deliberately shut out of the process.”

Rebecca Mercuri, a computer scientist and a research fellow at Harvard who has long questioned the security in electronic voting systems, says that the entire standards process has been shrouded in secrecy. “It’s not just the fact that they have all these rules,” she says. “We could live with the rules. But when someone asks for a clarification of the rules, they change the rules to suit their purposes.”

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Another DMCA Claim — Voting Technologies [7:30 am]

Within the emerging set of issues around electronic voting. Siva has posted a number of stories/links to the dispute between Diebold and

Slashdot’s several articles

Wired News reports that Alameda Country, California, does not plan to reconsider use of Diebold electronic voting machines, despite reported problems cited by the state of Maryland: California County Keeps E-Vote

Among the problems cited in the report were issues that security professionals consider basic to secure computing, such as the use of strong encryption for the transfer of voting data and the use of strong passwords and smartcard authentication for officials and workers accessing the systems. Diebold, it was found, had not designed these features adequately to meet security standards.

The audit, conducted by Science Applications International, or SAIC, in San Diego, stated that if the flaws were exploited, “significant impact could occur on the accuracy, integrity and availability of election results.”

The report included an “action list” of 23 items that needed to be completed to “reduce the risk to the system” but did not indicate how much the machines would still be at risk after these changes were made. Changes were recommended for policies and procedures for the use of the machines by election officials.

The NYTimes’ coverage: Report Raises Electronic Vote Security Issues [pdf]

Yesterday’s report, by the Science Applications International Corporation, said that Mr. Rubin’s conclusions about the company’s software were “technically correct,” but that the researchers “did not have a complete understanding” of Maryland’s use of the system.

In an interview yesterday, Mr. Rubin said he was mystified to see that the state planned to use Diebold machines despite the report.

“It almost seems as though the people writing the Maryland action plan either did not read or did not understand the S.A.I.C. report,” he said. “What they should say is, `We’re going to put these systems on hold until they say that these things are safe to use.’ ”

The EFF points out that the IEEE proposal did fail, after all. And the site is worth a look.

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Jack Valenti Never Sleeps [7:14 am]

See, for example, this press release [from MI2N] on the sucessful passage of California SB 1032 out of the Assembly committee:

SB 1032, introduced by Senator Kevin Murray passed the Assembly Public Safety Committee today. This bill makes it a misdemeanor to record a movie in a theater without the consent of the theater owner.

“We are gratified that Senator Murray is championing this critical legislation that will be an extremely important weapon in our arsenal to combat camcording of movies in theatres,” said Jack Valenti, President & CEO of the Motion Picture Association of America. “We salute Senator Murray’s energy and vision in our efforts to curtail the primary source of the unauthorized uploading of movies on P2P networks for free on the Internet.” [emphasis added]

Piracy is a significant problem with estimated loss of $3 billion annually from motion picture piracy alone. “This bill gets to the real problem by going after the individuals who record the movies,” said Murray. The bill now moves to Assembly Appropriations Committee.

The “primary source,” huh? Guess that’s news to these guys: Piracy as an inside job

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iRate Radio [7:01 am]

One approach to the “how do I find music I like among the sea of material available” — iRate, a Java application that seeks out and downloads MP3s to your machine. You vote/rate what you hear, and it tries to adapt its searches to meet your criteria. kuro5hin has a interview with the creator: Interview with iRATE radio Creator

What inspired/motivated you to do iRATE Radio?

When I used Napster and Gnutella I noticed that if someone had one track that I liked then they usually had several. Often I would download other tracks a user had even if I hadn’t heard them. I discovered good bands this way. Also most “file sharing” systems have a search facility, but they’re useless for introducing you to new music. My original idea was to use iRATE and peer-to-peer technology together. However I thought I’d test it with legal music first. I found so much good music freely available that I’ve never looked back. There are a lot of advantages to co-operating with musicians who want to see change than trying to get music from those who are entrenched in the current system.

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Slashdot on Magnatune - “We Are Not Evil” [6:52 am]

Slashdot has a discussion around Magnatune, a recod company with a different business model: Magnatune - a Non-Evil Record Label?

From the Magnatune WWW site:

We call it “try before you buy.” It’s the shareware model applied to music.

Listen to hundreds of MP3′d albums from our artists. Or try our genre-based radio stations.

If you like what you hear, buy our music online for as little as $5 an album or license our music for commercial use.

Artists get a full 50% of the purchase price. And unlike most record labels, our artists keep their rights to their music.

Founded by musicians, for musicians.

No major label connections.

We are not evil.

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September 28, 2003

India Acting To Protect Whom? [7:00 pm]

James Grimmelmann posts India to Forbid Song Covers? over at LawMeme.

An amendment to the Indian Copyright Act has been proposed, and will likely be passed in Parliament in a couple of months, after sustained pressure and lobbying by the music industry in India. The effort has been led by Universal Music India (among others) with some prominent composers and musicians acting as the figureheads and personally lobbying important Cabinet ministers.

Currently, the Copyright Act, in S.52(1)(j) explicitly allows the making of cover versions of songs (called “version recordings” - the provision is actually broader than just cover versions and encompasses things like remixes and so on), two years after the original recording is released, on a compulsory licensing+royalty basis. However, the music industry wants to delete the entire section so that “version recordings” are banned completely (barring permission at the discretion of the copyright holder of course, and we know how likely that is).

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More on the Blues [6:28 pm]

This upcoming PBS special on The Blues is inspiring all sorts of interesting commentary on the history of the record business. See, for example, this piece from the NYTimes: First the Birth of the Blues, Then the Fight Over Who Owns the Baby [pdf] It’s interesting to note that even the first season of The Sopranos has an episode (#10) that touches on this issue. It’s stunning that, if true, this PBS special doesn’t even give it that much attention.

The alchemy that transformed the blues music into jazz, then rock ‘n’ roll — and later on into rock music and rap — did its work in the speakeasies, brothels, juke joints and churches that sat cheek by jowl on the South Side of Chicago in the early 20th century. Among the millions of black people who fled the South in the Great Migration, hundreds of thousands came to Chicago, including the talismanic blues stars Howlin’ Wolf and Muddy Waters, and the bass man and songwriter Willie Dixon, all of whom recorded for Chess Records. Depending on who tells the story, Phil and Leonard Chess, the founders, were either benevolent patrons or rip-off artists who created the paradigm for how to fleece musicians.

[...] But the series scarcely mentions the bitter controversy over how much the Chess brothers and the music publishing company they partly owned exploited these artists. The segment that should tell this story — the one on Chess itself — dismisses the exploitation as a figment of the bluesmen’s imagination.

[...] The real money came into play when British rock bands — like the Rolling Stones and Cream — began to rerecord blues standards, paying out millions in royalties that should have gone to the blues artists who wrote the songs. Many bluesmen found that the rights to their work belonged to publishers associated with their record companies.

The lawsuits flew hot and heavy in Chicago, where the big artists associated with Chess Records filed nasty claims charging that the publishing firm owned partly by the Chess brothers had swindled them. Muddy Waters and Willie Dixon received undisclosed settlements and eventually regained ownership of the disputed songs. Howlin’ Wolf died while his case was still tied up in litigation — a lesson to other musicians to settle while they could.

[...] Even rappers fresh off the street who couldn’t name a blues song if you paid them know that many of the musicians who came before them were cheated. These rappers show up at the record company door demanding deals that allow them to own their works, which allows them to get rich — and to sing about getting rich. These songs, too, are a legacy of the blues.

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What Ownership of Culture Gets You [2:28 pm]

Placement on the Vegas strip, apparently: I Dream of Royalties [pdf]

A CLUTCH of suited dignitaries, standing beneath a makeshift thatched roof of dried palm fronds, don floppy white sailor caps on cue as a band blares the “Gilligan’s Island” theme song. One of them, Kenny C. Guinn, the governor of Nevada, is struggling to retain his dignity as he shares a spotlight with Gilligan, the Professor and Mary Ann — the actors Bob Denver, Russell Johnson and Dawn Wells — during the opening ceremony of the gambling industry’s big annual trade show, held here earlier this month.

The three castaways were among a cavalcade of celebrities — some faded or forgotten — who turned out at the cavernous Las Vegas Convention Center to help sell slot machines created in their images.

[...] Slot machines account for more than 70 percent of casino revenue in the United States, according to William Eadington, an economist at the University of Nevada at Reno. And the most profitable machines, slot makers have discovered in recent years, are those that tap into the recognizable and nostalgic. The manufacturers are spilling tens of millions of dollars licensing such brands, hoping that they will help their machines stand out in the crowd of games clamoring for gamblers’ attention.

[...] “Before the `Wheel of Fortune,’ the theming of slot machines was generic — cherries, lemons, pots of gold, four-leaf clovers,” Mr. Christiansen said. “Stuff in the public domain that didn’t cost any money to use. But that changed as soon as `Wheel of Fortune’ hit. Consumers suddenly were demanding something more than cherries and lemons.”

That meant greater development costs for slot makers, but also greater profits. A slot machine typically sells for around $10,000, adding maybe $4,000 in profit to the company’s bottom line, I.G.T. executives said. By contrast, a successful revenue-sharing machine can provide a steady stream of cash, adding as much as $16,000 a year to the bottom line.

A highly entertaining article — with much more than I have posted here.

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PowerPoint Poison [2:17 pm]

This NYTimes article, The Level of Discourse Continues to Slide [pdf], made me think of one of my favorite cartoons from this week’s (with its great RIAA commentary cover) New Yorker: I need someone well versed in the art of torture–do you know PowerPoint?

The Tufte analysis described in the article cwn be found here: ET on Columbia Evidence–Analysis of Key Slide

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Ed Foster’s Latest: Insidious Rights Management [1:43 pm]

Ed Foster’s Gripe Line this week is about the integration of DRM into Office and beyond: Insidious Restrictions Management

But beyond the fact it’s from Microsoft, the real problem is that IRM is just DRM (Digital Rights - or Restrictions - Management) with a slightly different name. That it’s DRM partially in the control of users won’t make it any easier to tolerate the limitations, complexity, bugs, misapplications and outright disasters IRM will inevitably cause. Like DRM, IRM will just make it a little harder to deal with the digital world we live in.

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Tasteless (Isn’t that the Point?) Humor from BBSpot [1:35 pm]

But indicative:

RIAA Reanimating Dead Musicians To Eat Brains of File Sharers

The RIAA can expect a legal fight from the Electronic Frontier Foundation (EFF). “We realize that the DMCA gives the RIAA the power to eat the brains of file sharers without the issue of a warrant or subpoena, but we think the law is wrong and we’re lobbying to have it repealed,” said EFF spokesperson Francine Parker. “We could end up with a case where an innocent person is swarmed by the undead members of Lynyrd Skynyrd if this law isn’t changed.”

[...] However, not everyone outside the RIAA was disgusted by the news. Many fans were excited by the possibility of a zombie Elvis or John Lennon visiting their home even if it meant that they would be killed. “Do you think this means that The Dead could get back together and tour again?” gushed one fan.

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