January 31, 2004

MATRIX IN the News [8:43 pm]

Looks like the MATRIX got a set of participants that didn’t know about it — the residents of Utah: Dossier program alarms Utahns.

It sounds like a sci-fi thriller: a super computer program that gathers dossiers on every single man, woman and child — everything from birth and marriage and divorce history to hunting licenses and car license plates. Even every address you have lived at down to the color of your hair.

It sounds surreal, but former Gov. Mike Leavitt signed Utah’s 2.4 million residents up for a pilot program — ironically called MATRIX — that does just that. And he never bothered to reveal details of the program to Utah citizens or to state lawmakers who, upon learning of the program on Capitol Hill this week, are now worried the state could be involved in a program that jeopardizes basic civil liberties.

[...] “Do I want the government compiling all these records on me through a super database to come up with a dossier?” queried one legislative staffer who should have known about MATRIX but didn’t. “Not only no, but hell no.”

The Matrix site lists the following states: Connecticut, Florida, Georgia, Michigan, New York, Ohio, Pennsylvania and Utah. Did you know about this?

Slashdot discussion: MATRIX - A Dossier for Every Person in Utah

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More DRM on the Horizon [8:16 pm]

From News.Com: Tech giants lock down wireless content — a new set of acronyms to make sure your new hardware does NOT implement.

Formerly known as “Project Hudson,” the effort will kick off publicly Monday, with the announcement of new digital rights management (DRM) specification from industry group the Open Mobile Alliance (OMA), as well as the formation of a new licensing body led by Intel, Nokia, Panasonic and Samsung that will promote the technology, according to sources. Toshiba was originally a member of the licensing group but has since backed out.

[...] CMLA aims to ease piracy concerns among movie studios and record labels over a growing number of devices, including cell phones, capable of connecting to wireless networks. According to one source familiar with the plan, the DRM scheme will be built into mobile handsets, allowing encrypted files to be streamed onto compliant devices. Known as OMA DRM 2.0 Enabler Release, the specification could also potentially support devices connected in wireless networks based on the 802.11 standards, or Wi-Fi.

[...] Software makers hope to cash in on the media industry’s demand for DRM by supplying security standards that could ultimately give them a slice of the profits every time a song or movie is bought or played online. They also stand to reap substantial fees from hardware companies that would be required to license their technology in order to legally play back most copyrighted music and videos.

A wave of competing and incompatible DRM products has hit the market from Microsoft, Apple Computer, Sony, IBM, RealNetworks and others, creating interoperability headaches for consumers.

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The Economist on the EU Antitrust Investigation [6:59 pm]

Sir Bill and his dragons—past, present and future

The latest document bolsters these claims. It uses new evidence from updated market shares to illustrate how Microsoft’s server and media-player have advanced at the expense of rivals. Compared with the drama of the American antitrust action, which included an infamous videotaped deposition from Mr Gates and evidence culled from internal Microsoft e-mails, this is dull stuff. But it does confirm that Microsoft is exploiting its desktop dominance in workgroup server software; and that, by “tying” WMP to Windows, it has overtaken its chief rival in the media-player market, RealNetworks.

Particularly damning are the comments from providers of media content. They say that the cost of supporting different media formats (when providing video clips on a website, for example) leads to a “winner takes all” market which it is difficult for a new media-player, no matter how innovative, to enter. The argument that the efficiencies derived from incorporating WMP into Windows outweigh the anti-competitive effects is dismissed. The commission tellingly observes that the incorporation of WMP in Windows “sends signals which deter innovation” in any technologies which Microsoft could conceivably tie with Windows in the future.

[...] If no agreement is reached, however, and the expected negative ruling is issued, probably in March, Microsoft will appeal. The case will go first to the Court of First Instance in Luxembourg and then (assuming Microsoft loses again) it would move to the European Court of Justice. But all that would take years. Microsoft’s enthusiasm for some kind of early settlement to insulate it from further antitrust action is influenced by the appearance of a third dragon on its horizon. For the firm is currently gearing up for a battle with a new and vigorous competitor: Google.

Slashdot discussion: A Look at Microsoft’s Regulatory Problems

See also: The Coming Search Wars

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SuperBowl IP [1:34 pm]

From Slashdot: Broadcasts and Promotions Related to Super Bowl XXXVIII

Summary of Use of Trademarks [In Marketing & Promotions]

You cannot say or print: You can say or print:
* “Super Bowl” * “The Big Game in Houston”
* “Super Sunday”

* The Super Bowl logo

* “The Professional Football Championship Game in Houston”
* “NFL”, “AFC”, or “NFC” * The date of the game (February 1, 2004)
* “National Football League”

* “American Football Conference”

* ‘National Football Conference”

* The names of the cities of the competing teams in the Super Bowl (e.g., Indianapolis vs. Tampa Bay), but not the team names
* Any team name (e.g., “Buccaneers”) or nickname (”Bucs”)

* You can make fun of the fact that you cannot say the phrase “Super Bowl” (e.g., by beeping it out)


[...] News Reporting on the Super Bowl Events

As you are likely aware, the NFL has a property right in the accounts and descriptions of the Super Bowl and sells the television and radio rights thereto. By reason of its creation of the Super Bowl, its control of the venues, and its restriction of the dissemination of the news therefrom, the NFL has the right to control the use of information relating to the athletic event for a reasonable time following the event. In addition, tickets to the Super Bowl are likely to include a restriction that prohibits persons located within the stadium from disseminating accounts of the sports event to the media without press credentials. Therefore, unless your station has obtained press credentials already, you will not be permitted to report on the Super Bowl from the venue while the event is on- going. When the event has concluded, it is permissible to report the “news” of the event, such as the winner and score of the game.

Courts have held that the copyright owner of a telecast — in this case the NFL and its licensees — has a right to charge a fee for the use of highlights. Therefore, stations should obtain consent from the rights holder prior to the use of highlights of athletic events and the half-time show in station newscasts. The limited case law in this area indicates that although the First Amendment may allow the media to report news on athletic events shortly after the event to a certain extent, the First Amendment is not likely to protect a station which broadcasts footage or accounts of an event in violation of licensed rights to the event and, in particular, prior to its conclusion.

Update: See this Yahoo! News bit: Vegas Hotels Canceling Super Bowl Parties

Some of Las Vegas’ biggest hotel-casinos are canceling Super Bowl parties and handing out refunds to thousands of guests after the NFL threatened legal action against those who broadcast the big game on big-screen TVs.

Several hotels received letters last week informing them that their parties were “unauthorized use of NFL intellectual property.”

[...] A Super Bowl party inside a movie theater at the Palms was scrapped after the hotel received a letter from the football league on Jan. 23. The gathering usually attracts several hundred people, who enjoy hot dogs and beer and compete in games and raffle drawings for $39.99.

[...] The Aladdin hotel-casino had to cancel its bash planned at the hotel’s 7,000-seat Theatre of Performing Arts after receiving an NFL letter Friday. Officials scrambled to find small TVs that they could place throughout the casino for guests wanting to watch the Super Bowl.

“The city has had events like this for years,” said Tyri Squyres, an Aladdin spokeswoman.

[...] Professional gambler Tom Burton said the hotels were providing a community service by televising the game.

“You can’t go to the Super Bowl because all the seats are taken,” he said. “The NFL just wants to dig deeper and deeper and wants to get as much money as they can. When is it going to end?”

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Pending Story [12:48 pm]

Getting the Sunday Times can be frsutrating sometime — we get parts of the Sunday Times today, including the magazine section and, most notably in this case, the Arts & Leisure section, whose story above the fold is Lip-Synching Gets Real, a discussion of canned sound and public performances. An interesting article all around, but I loved this part:

Oddly, lip-synching got its big break because of union regulations, according to Marc Weingarten, author of "Station to Station: The History of Rock ‘n’ Roll on Television." No one could quite figure out what sort of royalties singers deserved for a live TV performance, so in the early days they just faked it.

(I’ll try to add the link once it goes live at nytimes.com)

Update: Posted 11:15PM - I’ll get the USERLAND link tomorrow from my RSS aggregator.

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January 30, 2004

And, on the Culture Front….. [8:10 am]

Americans Think Downloading Music for Personal Use Is an Innocent Act

While the news media have been filled with stories about what some are calling “Internet music piracy,” a large majority of the American public views downloading music for personal use as an innocent act, and thinks the high price of CDs leads to a lot of downloading. These are the results of a Harris Interactive survey of 2,306 adult Americans conducted online between September 16 and 23, 2003.

Fully three in four adult Americans (75%) agree that “downloading and then selling the music is piracy and should be prohibited, downloading for personal use is an innocent act and should not be prohibited.”

This is consistent with a Harris Interactive survey of teens released in October 2003 which showed that roughly three in four teens feel that downloading music files without paying (74%) and letting others download files from them (78%) should be legal.

An almost equal 70% say, “If the price of CDs was a lot lower, there would be a lot less downloading of music off the Internet.”

There are a couple of good tables, but I like this one best:



“There has been a lot of news lately about what some are calling ‘Internet music piracy.’ Please tell me if you agree or disagree with the following statement: Downloading music off the Internet is no different from buying a used CD or recording music borrowed from a friend.”

Base: All Adults


































Not sure








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January 29, 2004

Hmmm — Are Some Pigs Are More Equal Than Others? [6:59 pm]

Or should I hope this means the beginnning of a more careful rethinking: Microsoft Says U.S. Govt May Cancel Eolas Patent

Microsoft Corp. (Nasdaq:MSFT - news) said on Thursday that the U.S. Patent and Trademark Office may come to its rescue and cancel a patent that could force the world’s biggest software company to rejig its most popular product.

[...] “The action by the Patent Office may result in the cancellation of the Eolas patent,” Microsoft said in a statement issued on Thursday to explain its latest move.

“Given these circumstances, and after consulting industry colleagues and developers, Microsoft, for now, will not be releasing an update to Internet Explorer,” it said, adding that Microsoft also would not release a planned update to its latest Windows operating system known as Windows XP (news - web sites) Service Pack 2.

Microsoft said it has been working with rival makers of Internet programs, including Apple Quicktime. Macromedia Flash and Real Networks, on how best to respond to the challenge.

In the words of Theodoric of York — "Naaaaaaaaaaaaaahhhhhhhhh!" (although we can always wish!) (.WAV from Leslie’s Audio Trivia Answers 2002 — even better, the transcript of his first appearance!)

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January 28, 2004

Something to read tomorrow [10:44 pm]

I’ve got to go to bed, but this LawMeme piece points to something that’s bound to generate some discussion: Is Copyright Property? A Comment on Richard Epstein’s Liberty vs. Property


This short essay is derived from commentary on Richard Epstein’s article, Liberty vs. Property, which were delivered at the 2003 conference on Promoting Markets in Creativity: Copyright in the Internet Age, co-sponsored by The Progress & Freedom Foundation and the George Mason University’s Tech Center. The essay suggests that the opponents of Epstein’s position that copyright entitlements are derived from similar policy concerns as tangible property rights would reject his thesis at the conceptual level, maintaining that copyright is not property, especially in the context of digital media. By assuming their rallying cry that “copyright is policy, not property,” this essay reveals that opponents of digital copyright are caught in a dilemma of their own making. In one sense, their claim that “copyright is policy, not property,” is an uninformative truism about all legal entitlements, and in another sense, represents a fundamental misconception of the history and concept of copyright. The concept and historical development of copyright are more substantial than its representation today as merely a monopoly privilege issued to authors according to the government’s utility calculus. The essay concludes with the observation that those who wish to see copyright eliminated or largely restricted in digital media are in fact driven by an impoverished concept of property that has dominated twentieth-century discourse on property generally. As a doctrine in transition - we are still in the midst of the digital revolution-copyright may be criticized for various fits and starts in its application to new areas, but the transition itself does not change copyright’s status as a property entitlement.

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Interesting Slate Essay [10:34 pm]

See You on the Darknet touches on a number of current topics online, with the following conclusion:

Wondering how the security vs. privacy struggle might play out, I e-mailed Steven Levy, the respected tech journalist who penned the Newsweek article. “I’m currently at CES,” he replied, “which is shaping up as a celebration of the stuff that gives Hollywood chills—distribution, ripping, burning, of all sorts of content (for personal use, of course).” Exhibitors avoided discussing security systems that might get in the way of all that fun, Levy noted. “If it’s onerous out of the box”—i.e., if it requires a digital driver’s license that keeps users from enjoying the full benefits of the darknet—”people won’t use it, and won’t want to buy computers that have it.”

[John] Walker’s manifesto [The Digital Imprimatur] spells out the ugly truth: As the Net gets more powerful, other powers will feel increasingly threatened by it and try to take it under control. But to do so, they’ll need the complicity of those who build the hardware and software. If the Consumer Electronics Show is any clue, the gadget makers have figured out that if the powers that be get their digital imprimatur and their secure Internet, the real money will be in darknets.

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Donna on the Anti-Feist [3:32 pm]

(Great title, Donna!!) in "The Coming of the Anti-Feist, Part II", Donna points us to the current EFF action alert on H.R. 3261, as well as PublicKnowledge alert: Your Right to Get the Facts is at Stake (something weird going on with eff.org - but I’m sure the main server will be back soon - action.eff.org works fine….).

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In Case You’ve Missed The DeCSS Gallery [2:35 pm]

See this Slashdot article for background and pointers in the wake of the recent decision not to pursue Bunner: Seth Shoen Reveals Himself Author of DeCSS Haiku

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Slashdot on Patent #6,671,714 [2:32 pm]

USPTO Grants CA Lawyer Domain-Naming Patent (See Furdlog Jan 16 posting: A Business Method Patent In The News)

All of us here can see how asinine this is. Will our legal system?”

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Fair Use and Copyright [1:11 pm]

[via Legal Theory Blog] Et Tu, Fair Use? The Triumph of Natural Law Copyright


Since its advent in 1841, the fair use doctrine has been hailed as a powerful check on the limited monopoly granted by copyright. Fair use, we are told, protects public access to the building blocks of creation and advances research and criticism. This Article challenges the conventional wisdom about fair use.

Far from protecting the public domain, the fair use doctrine has played a central role in the triumph of a natural law vision of copyright that privileges the inherent property interests of authors in the fruits of their labor over the utilitarian goal of progress in the arts. Thus, the fair use doctrine has actually enabled the expansion of the copyright monopoly well beyond its original bounds and has undermined the goals of the copyright system as envisioned by the Framers.

Specifically, this the Article first analyzes the anti-monopolistic impetus for federal copyright protection and reflects on the original understanding of copyright as epitomized by a series of early cases on the rights of translation and abridgement. The Article then examines the impact of the fair use doctrine on the copyright monopoly and progress in the arts. All told, the Article calls for a serious reassessment of the role of fair use in the infringement calculus, especially in an age where networked computers and malleable digital content has enabled new forms of artistic and post-modern experimentation.

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IP Protection and Competition [10:36 am]

From Wired: The Eagle Is Grounded: While America works to protect intellectual property, everyone else is innovating. A very clear articulation of the threat that the current trends in US IP thinking represents to many of our industries.

n the face of new technologies and competition, the US is toughening patent and copyright protections. It’s leaning on other countries - and its own citizens - to play by ever tighter rules. But if it’s not careful, the US will drive its intellectual property offshore into a shadow world that, like shipping, is replete with piracy and rogue states.

[...] This conflict sets the stage for a trade war on an unprecedented scale. Last fall’s World Trade Organization talks at Cancún failed in part because poor countries walked out in protest over US and EU intransigence on agriculture and drug patent issues. That’s just a sign of the strife ahead; those poorer nations could become the next flags of convenience for a more liberal conception of intellectual property.

There’s still time to avoid the shipping industry’s fate: American IP owners can stop demanding maximum and extreme protections. The US Patent and Trademark Office can stop taking a head-in-the-sand approach - last summer it strong-armed the World Intellectual Property Organization into canceling a discussion on open source projects - and instead use the WIPO to forge a global policy that works for all nations.

By taking a flexible approach to IP, companies could capitalize on the next wave of innovation rather than shirk from it. But wait too long and this ship will have sailed.

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January 27, 2004

Hear, hear!! [7:35 pm]

You need to read Cory Doctorow on the market and DRM — NOW: Protect your investment: buy open

There’s no excerpting it, but here’s something that I hope will entice you to go read the whole thing:

And this is the problem with Scoble’s reasoning. We have a world today where we can buy CDs, we can download DRM-music, we can download non-DRM music from legit services, we can download “pirate” music from various services, and we can sometimes defeat DRM using off-the-shelf apps for Linux (which has a CD recovery tool that handily defeats CD DRM), the Mac (with tools like AudioHijack that make it easy to convert DRM music to MP3s or other open formats) and Windows (I assume, since I don’t use Windows, but as Scoble points out, there’s lots of Windows software out there.).

In this world where we have consumer choices to make, Scoble argues that our best buy is to pick the lock-in company that will have the largest number of licensees.

That’s just about the worst choice you can make.

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Missed This [7:27 pm]

Well, not exactly. I mean, a little James DeLong goes a long way — what I really mean is I missed Donna’s take on his TCS (of course!) article: Bait and Tackle.

Of course, DeLong does point me to yet another resource in my own backyard with which I was not familiar: Free/Open Source Research Community

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Thanks to my "Online Friends" [7:22 pm]

Mary and Derek: thanks — it really was a pretty terrible week, wasn’t it?

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Some More Comments on Declan’s Look At Dean [7:09 pm]

As followup to this morning’s posting, see Donna’s and especially Larry’s comments.

Ed Felten has even more to say, even if he doesn’t want to get political, and jumps directly into an explanation of why "technology & policy" is such a crucial perspective to develop: Dean’s Smart-Card Speech

The fact is that there is a deep disconnect between the different sections of Dean’s speech. It’s hard to reconcile the privacy-is-paramount part of the speech with the smartcards-everywhere part. At least, it’s hard to reconcile them if you really understand the technology. Dean makes a compelling argument that computer security is important, and he makes an equally compelling argument in favor of preserving privacy. But how can we have both? Enter the smartcard as deus ex machina. It sounds good, but unfortunately it’s not a technically sound argument.

Now, nobody expects state governors to understand technology well enough to spot the technical flaws in Dean’s speech. Probably, nobody advising Dean at the time had the knowledge to notice the problem. That’s not good; but it hardly makes Dean unique.

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Something Funny From Findlaw [7:02 pm]

Not funny "ha-ha;" funny odd. Today’s Entertainment Law summary from FindLaw included a reference to this somewhat old Marci Hamilton column: Why Suing College Students for Illegal Music Downloading Is the Right Thing To Do.

What makes it funny is to read it in parallel with the BusinessWeek article cited below (BW’s Take on the RIAA’s Latest). Of course, Marci wrote the column six months ago, and it may still be that, as she puts it:

Some have criticized the RIAA and others in the music industry for going after students. But I will argue that it is entirely right - both legally and morally - for them to do so.

It’s just that, as BusinessWeek suggests, it’s not working out to be the most effective strategy.

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Blogging, Politics and the "Echo Chamber" [3:58 pm]

Ernest comments on Jack Balkin’s discussion of blogging, politics, etc. in Balkin on Sunstein, Blogging and Democracy.

I read Jack’s piece yesterday and saw it as a counterpoint to the discussion in the NYTimes on Sunday, as well as the Findlaw commentary of last week, both linked through this entry: Some Provocative Questions

Ernest agrees with Prof. Balkin’s optimism, and I agree that there are many reasons to hope for the best. But I do understand the notion of the "echo chamber" cited in the NYTimes article, and I would argue that there may very well be a need for something to keep from engendering the kind of isolation that can be experienced on the net.

I have some more that I want to say about this, but I am late for a meeting — let’s just say that there’s probably a need to distinguish between those who impart meaning through argument/conversation and those who do so through speech-making. While the Internet tools support both, I would guess that one leads to insularity and one to less of a conversational monoculture……..

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January 2004
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