Solum From Atlanta

Derek points to Lawrence Solum’s notes from the Association of American Law Schools, Section on Constitutional Law, Copyright and the First Amendment. All sorts of luminaries present:

The program is being moderated by Randy Barnett (Boston University). Randy opens the program by introducing the speakers, Ed Baker (Penn), Tom Bell (Chapman), Neil Netanel (Texas), and Jessica Litman (Wayne State).

Prof. Solum’s closing discussion centers on some interesting points to consider in the face of the apparent conflict between the freedom of speech and copyright — the idea that the fact that today’s copyright conflicts with the First Amendment might be an indication that the law has been over-extended:

[T]he first question we ought to ask is how the copyright power could be construed so as to provide internal limits on that power that avoid any collision with freedom of speech and press. With this point in mind, it is interesting to consider the first copyright act which is dramatically narrower than current law. The term was much shorter—a maximum of 28 years. More importantly, the scope of copyright itself was narrower—for example, no derivative works were covered. Given this narrower understanding of the copyright power, the kinds of examples that Netanel discusses simply would not arise.

On the original understanding of the copyright power, it is not clear that there was any possibility of collision between copyright and freedom of speech. Perhaps the key to understanding the copyright power is to construe that power so as to avoid collision with free speech values.

This parallels some thinking I’ve been doing about the other exceptional feature of copyright — that it creates a monopoly, something that is also problematic from the perspective of liberty in the American political experience. Granted, the concern about economic concentration and political power is more Jacksonian than a part of the Founder’s arguments, but it’s clearly part of what made Jefferson so uncomfortable with copyrights and patents.

And with the kind of technological capabilities available today to enforce that monopoly, I think that there’s room to explore the question of just how strong a monopoly was intended, just as Solum wonders just how strong an effect on speech was intended — or is good for us.

Update: (2003-01-07 – 12:18) See also this Scrivener’s Error entry

EFF on Intel’s LaGrande

Brief Note with links to the Intel proposal and the EFF comments: EFF Comments on Intel’s LaGrande Technology Policy [text of comments, pdf]


Trusted Computing technologies like LaGrande Technology have the potential to be abused to diminish computer owners’ choice and control even when deployed on an opt-in basis. They may also be used to diminish privacy by disclosing both PII and non-PII information. The present Intel policy sets forth useful best practices, but cannot prevent abuses of LT.

And, from the conclusion:

We have previously suggested the inclusion of an “Owner Override” feature in trusted computing systems, to make sure that platforms are not used against their owners’ interests. Intel and other trusted computing developers should make explicit how their technologies will be used in case of conflicts of interest between computer owners and third parties. As long as TC platforms are capable of enforcing policies against their owners, they are susceptible to abuse to subvert owners’ and users’ privacy, choice, and control.

The Policy in its present form is conspicuously lacking an enforcement mechanism. Since third parties have much to gain by abusing LT, Intel’s disapproval alone is not enough to deter their abuses.

MoveOn’s Response To The Furor

[In re: this post] An interesting one, via Politech: Politics as usual: Demopublicans trade jabs over Hitler-Bush ad

Yesterday we announced the 15 finalists — all good, hard-hitting and fair appraisals of the Bush record, in the judgment of the members and others who rated them. The two offending ads can only be found one place now — on the RNC website!

When we’ve explained this to journalists, most have understood that this is a game of gotcha politics, not news. But even our statement for the press below, which goes through the entire process in detail, hasn’t stopped the right wing from working this angle as hard as they can.

That’s why we’re asking you to please watch for stories on this as they appear, and let us know. Call the news outlet yourself and give them hell for falling victim to such political baloney. I’ve attached our statement, which fully explains the situation, below. Then please let us know so we can contact the outlets directly.

You can help us track inaccurate reporting on this story at: [Note: Edited so you get a blank form, instead of one already started.]

Britney’s Latest As Element of Gay Marriage Debate

(Part of what must be a cold-influenced continuation of off-topic articles today….) Who’d-a-thunk-it: I Do. Oops! I Don’t.

To the Editor:

Britney Spears can get married in Las Vegas on a whim and have it annulled within days (“Las Vegas: Bridal Britney?,” Arts Briefing, Jan. 5), but gay people like me, who have been in a loving, faithful, monogamous relationship with one partner for more than a dozen years, are not allowed to marry because some say we would damage the institution of marriage.

Is something wrong with this picture?


Iowa City, Jan. 5, 2004

Even worse, here’s what she gets for her P.R. dollar: Britney Spears, After a Dip Into Marriage, Is Free for Whatever Future May Hold

“I think this is a classic Britney move,” said an MTV News correspondent, Su Chin Pak. “She’s always walked the line between good girl and bad girl. The craziest thing she allows herself is to get married to a perfectly sweet guy from Kentwood, La., that she’s known all her life. It’s not like we’re pulling her out of rehab.” Ms. Spears, she said, is not taking her sundered nuptials too seriously.

“She has a 10-minute video of the wedding that she’s been showing to friends,” Ms. Pak said. “She thinks it’s a big joke.”

OTOH, It’s Not Hard To Understand The Frustration…

… That led to the reported excess(es) in the Bush in 30 Seconds contest. See, for example, this SFGate piece on just how "free" speech is these days: Quarantining dissent: How the Secret Service protects Bush from free speech . Of course, the title isn’t quite accurate — it’s not about protecting Bush from hearing free speech; rather, it’s about keeping the press from easily juxtaposing protestors with the President — limiting access (frightening how that concept keeps turning up on this WWW site, irrespective of context, isn’t it?) to protect the Administration from the effects of free speech.

I can see how some protestors might get obstreporous, but you really need to read this article to see just how far things have gone — time to re-up your ACLU memberships, everyone!

The Justice Department is now prosecuting Brett Bursey, who was arrested for holding a “No War for Oil” sign at a Bush visit to Columbia, S.C. Local police, acting under Secret Service orders, established a “free-speech zone” half a mile from where Bush would speak. Bursey was standing amid hundreds of people carrying signs praising the president. Police told Bursey to remove himself to the “free-speech zone.”

Bursey refused and was arrested. Bursey said that he asked the police officer if “it was the content of my sign, and he said, ‘Yes, sir, it’s the content of your sign that’s the problem.’ ” Bursey stated that he had already moved 200 yards from where Bush was supposed to speak. Bursey later complained, “The problem was, the restricted area kept moving. It was wherever I happened to be standing.”

Bursey was charged with trespassing. Five months later, the charge was dropped because South Carolina law prohibits arresting people for trespassing on public property. But the Justice Department — in the person of U.S. Attorney Strom Thurmond Jr. — quickly jumped in, charging Bursey with violating a rarely enforced federal law regarding “entering a restricted area around the president of the United States.”

If convicted, Bursey faces a six-month trip up the river and a $5,000 fine. Federal Magistrate Bristow Marchant denied Bursey’s request for a jury trial because his violation is categorized as a petty offense. Some observers believe that the feds are seeking to set a precedent in a conservative state such as South Carolina that could then be used against protesters nationwide.

[…] When Bush visited Australia in October, Sydney Morning Herald columnist Mark Riley observed, “The basic right of freedom of speech will adopt a new interpretation during the Canberra visits this week by George Bush and his Chinese counterpart, Hu Jintao. Protesters will be free to speak as much as they like just as long as they can’t be heard.”

[…] Such aggressive tactics become more ominous in the light of the Bush administration’s advocacy, in its Patriot II draft legislation, of nullifying all judicial consent decrees restricting state and local police from spying on those groups who may oppose government policies.

Another explanation? The S factor explains Bush’s popularity

More on Digital Cinema

A discussion of the difficulty in finding an economic incentive for theatres to pony up the cash to buy the hardware that will reduce the movie companies’ distribution costs: Digital Cinema’s Costs Divide the Film World

A number of questions demand to be answered. Is D-cinema of equivalent quality to 35mm film? Who will benefit from its introduction? And what reasons are there for believing D-cinema would improve film-going for the public?

The quality question is complex. D-cinema enthusiasts argue that digital projection can be superior to 35mm. Images are sharper, colours are brighter and more intense and digital images do not suffer from the flaws, scratches and dirt that affect film prints after a few showings.

There is some evidence that, subjected to both, audiences prefer the digital experience to film. But a lot depends on projection. A 35mm print from a big studio has a resolution equivalent to 4,000 lines (4K) and these studios argue they will accept nothing less if quality is to be maintained.

Digital projectors today provide a resolution of about 1,300 lines and the first 2,000 line systems are becoming available. 4K projectors do not exist except as experiments and are unlikely to become commercially viable for years. Nevertheless, as the NFT audience saw, Finding Nemo screened using a 1.3K projector is still visually stunning. […]

Fine: except that a 2k digital projector costs $150,000 or more against $50,000 for a conventional projector and lasts only one third as long. This is the heart of the matter. Exhibitors are faced with the huge expense of moving to digital projection, but have no guarantee their investment will be repaid in larger customer numbers or in being able to charge premium prices.

Creators and distributors, on the other hand, anticipate huge savings. D-cinema can be distributed by satellite, over the internet or as disks through the post without the need to make and distribute prints at £1000 and more a time. The savings have been calculated at some $800m annually across the industry. So until the two sides can come to an agreement over how the cost burden should be spread, it is unlikely there will be any change in the status quo.

A Parent and A Buccaneer

From the Jan 1 NYTimes — weaning one’s offspring from P2P: For the Ex-Buccaneer, a Pillage-Free Playlist

IT was time for the Schwartzes to go legit. No more pirated music for us.

[…] Here’s the shocker: more than ever, he began asking us to buy CD’s for him. He wanted discs from artists he had come to know online, with the liner notes and lyrics. His less copyright-friendly buddies send him the stuff they like, and if he likes a song, he listens to a better-quality version on Rhapsody or buys the track.

Amazing but true: music downloading spurs music sales, at least in our house. (Sam’s 16-year-old sister, Elizabeth, has proven resistant to digital music’s allure, content to lug around a case full of CD’s.)

[…] Did I mention the cost? The $20 per month for iTunes will add up, as will the $10 per month for Rhapsody, once our free trial period is over. If you’re keeping score, that’s $360 a year, a significant new line item in the family budget. On the other hand, we already spend a fair amount on media: music, books and movies are important to us. We save money elsewhere: we don’t have cable TV, for example. I assume that after a while we will figure out which music service best suits Sam’s needs, and we’ll drop the other one.

Not everything is perfect in legal-download land. Sam gripes about the selection: no White Stripes on Rhapsody, and he can’t always find the songs he’s interested in on iTunes, either. “They had no Moxy Fruvous!” he said with disgust. We’re still waiting for a truly eclectic online store, something like, the mail-order Web site that sells truly odd, eclectic and wonderful CD’s like “Prozak for Lovers,” with its lounge-act renditions of rock classics like Elvis Costello’s “Pump It Up” and the Ramones’ “I Wanna Be Sedated.” There’s still no replacement for the grand jukebox in the ether.