March 17, 2004

Comic Relief (We Hope!) [9:31 pm]

Slate’s Dahlia Lithwick describes HR 3920 — Title: To allow Congress to reverse the judgments of the United States Supreme Court. Introduced by Rep Ron Lewis of Kentucky - plus, according to Thomas, there were 11 co-sponsors:

  • Rep Coble, Howard - 3/9/2004 [NC-6]

  • Rep Collins, Mac - 3/9/2004 [GA-8]

  • Rep DeMint, Jim - 3/9/2004 [SC-4]

  • Rep Doolittle, John T. - 3/9/2004 [CA-4]

  • Rep Everett, Terry - 3/9/2004 [AL-2]

  • Rep Franks, Trent - 3/9/2004 [AZ-2]

  • Rep Goode, Virgil H., Jr. - 3/9/2004 [VA-5]

  • Rep Hefley, Joel - 3/9/2004 [CO-5]

  • Rep Kingston, Jack - 3/9/2004 [GA-1]

  • Rep Pitts, Joseph R. - 3/9/2004 [PA-16]

  • Rep Pombo, Richard W. - 3/9/2004 [CA-11]

Congressman Lewis’ bill shouldn’t be made into more than it is: a silly little piece of shucking and jiving to polarize voters and get his name in print. I hereby kick myself for putting it in print. But this legislation represents the crossing over of a line–from contempt for any judge who doesn’t see things Lewis’ way–to contempt for the bench as a whole. And that shouldn’t go unnoted.

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Waxman on the Attack [9:18 pm]

Take a look at this database: Iraq On The Record Database, based on his Iraq On The Record report.

The Database

This database identifies 237 specific misleading statements about the threat posed by Iraq made by these five officials in 125 public appearances in the time leading up to and after the commencement of hostilities in Iraq. The search options on the left can be used to find statements by any combination of speaker, subject, keyword, or date.

See also this LawGeek posting: Rumsfeld Caught On Tape With “Immediate Threat” Lie

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NewsForge Coverage of Lessig’s Talk [8:58 pm]

(See below) Lessig: IP protection a business, not cultural, battleground

“These laws have become an insane and unintended burden on creators, because nobody had conceived of the Internet at the time, which has changed everything,” he said. “Nobody had any idea of the new business opportunities and new businesses that were to be created by the Internet. This is why we need real reform now in intellectual property protection. Unfortunately, I don’t see anybody taking the lead in Washington to do anything about this.”

Growth in creative industries such as radio, television, movies, publishing, music — and, yes, software — is threatened when “a few powerful interests control how culture develops. Growth must occur in creative businesses when they protect themselves from these controlling interests,” Lessig said.

[...] “Let the commercial interests compete on execution of the ideas; that’s the free enterprise system,” Lessig said. “But the creators need to maintain the freedom to distribute their ideas any way they want. They shouldn’t be bogged down by 20-year copyrights and other old restrictions that bottle up good ideas” on keep them on the shelf, Lessig said.

[...] Silicon Valley as a whole has been “pathetic” in defending the rights of its creative people. “We believe in competition between business models and within business models,” Lessig said, “and monopolies tend to weaken this competition. Support for open platforms is also support for business in general. Support for competition is also cupport for culture. We have another ‘Kodak opportunity.’ We need to eliminate the debate between capitalism and communism and reframe it to between creators and business.”

The Slashdot story starts out with a discussion that mirrors discussions that my students will recognize:

A threat to “developed nations” (Score:5, Interesting)

by bizcoach (640439) on Wednesday March 17, @08:16PM (#8594517)


According to Lessig,

Growth in creative industries such as radio, television, movies, publishing, music — and, yes, software — is threatened when “a few powerful interests control how culture develops.”

Hence, if we in the so-called “developed nations” don’t fix our legal systems, third-world countries, where “intellectual property law” cannot be enforced for lack of a functional legal system, will become the leaders in creative industries, including IT, right?

Re:A threat to “developed nations” (Score:4, Insightful)

by kfg (145172) on Wednesday March 17, @08:24PM (#8594568)


Some of us have been trying to open people’s eyes to that for decades.

China and Brazil have already had their eyes opened on this score. They are both large, resource rich countries.

They might even have an ax or two to grind.


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Salon’s Manjoo on Media Consolidation [4:19 pm]

(With a great graphic) The Media Borg series: One cable company to rule them all

Since the summer, Comcast has warned hundreds, possibly thousands, of customers of potential service termination due to high Internet use. The customers who receive these letters, people who’d always been told that their Internet service was “unlimited,” find themselves in a Kafkaesque comedy of errors: The customers say that Comcast tells them they’re using the service too much, but it won’t give them any meaningful measure of how much is too much.

[...] Comcast is the largest cable television operator in the United States, a firm whose lines reach more than 21 million homes, almost twice as many as its closest rival. With more than 5 million high-speed Internet customers, it is also the nation’s largest broadband service. If it succeeds in its attempt to buy Disney, it would be the largest media company in the world. Comcast also spends millions of dollars a year on a sophisticated lobbying operation in Washington. [...]

To [...] customers who have been caught up in the company’s Byzantine policies, this power makes the company something to be feared. And the customers worry that if Comcast is successful in its hostile bid for Disney, a deal that would make it the largest media firm in the world, Comcast will become even less responsive to customers. Consumer groups are bracing for the possibility; they suggest that if Comcast gets Disney, the media — especially the Internet — will never be the same again.

[...] Such restrictions have prompted people to wonder what the company might do when it owns a vast stash of content. Will Disney’s content — its Web sites, its streaming movies and music and TV shows — get pushed through at quicker rates to Comcast’s broadband customers? Will other content, whether from a rival media giant or from your friends and family, get pushed through at all? And will the underlying architecture of the Internet subtly shift, over time, to accommodate the kinds of applications that media giants like Comcast want us to use, rather than the ones that come from the bubbling innovation of the Internet itself — like the Web, or e-mail, or peer-to-peer file trading?

[...] “If Comcast thinks the merger is going to pay off because there’s a natural synergy between content and distribution, the only way for them to make it pay is by using their distribution platform to give an unfair advantage to the content,” says Dave Burstein, the editor of DSL Prime, an influential broadband industry newsletter. “Comcast will have incredible incentive to keep content that’s not from Disney away from the consumer.”

Currently, there are no federal regulations prohibiting Comcast from doing something like that, which is why Comcast’s critics are demanding such restrictions. Unless the Federal Communications Commission imposes rules to prevent distribution companies like Comcast from favoring the content of one media firm over others’, says Lawrence Lessig, a professor at Stanford Law School, “if Comcast and Disney are together, the incentive to play the game will be irresistible.”

And here’s an argument to keep you up late at night:

So what’s better — a smart pipe or a dumb pipe? It’s completely up to the customer, [the Cato Institute's Adam] Thierer says. Many people will want a restriction-free dumb pipe. But “my poor mother, when she gets online she’s utterly helpless. Some people need integrated intelligence. When they sign a contract they’re going to expect a little more than a new big fast pipe.” So if some people want dumb pipes and some people want smart pipes, why not let the market choose?

Comcast offers a variation on this position. It should be free, it says, to favor some content on its network over other content — but whether it does so or not will be circumscribed by market forces, and in the end consumers won’t be harmed.

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So, How’s the RIAA Lawsuit Strategy Going? [2:12 pm]

New Survey Indicates Parents Unaware Of Or Indifferent To Risks Of Illegal File Swapping Of course, I can’t find the study itself, but the instant analysis given in this press release is so typical of these sorts of discussions — the "shop-lift" analogy really seems to have a life of its own, despite its obvious weaknesses. "Repetition, repetition" is clearly the rhetorical strategy.

A new survey conducted by Nielson NRG for the Motion Picture Association of America, Inc. (MPAA) revealed that despite increasing media attention, nearly 40% of parents are unaware that file swapping of copyrighted materials is illegal. More than 40% of parents who participated in the survey know that their kids download music and movies over the Internet, and 55% of them know their kids did not pay for the content, while another 15% is unsure. In addition, one-third of those parents who have downloaded movies and music learned how to do so from their kids.

Technology expert and former editor-in-chief of FamilyPC magazine Robin Raskin says the survey indicates that parents are either unaware of the serious consequences of illegally swapping files or they’re just taking the ‘ostrich’ approach and burying their heads in the sand.

Ms. Raskin said, “Parents have a lot on their plates these days, but if they realized the severity and consequences surrounding the issue of irresponsible downloading, they’d understand why addressing it with their kids is as important as teaching them not to shoplift. The same caring and conscientious parents who dedicate themselves to making sure that their kids are safe and conduct themselves lawfully and ethically in the real world abandon that role in cyberspace.

Shame on all you parents! Don’t you know that the MPAA is the source of all ethical Western thought? After all, there’s this great movie out; and we have all sorts of new ideas in the pipeline!

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Ernest Takes on Kristof’s Nonsense [2:03 pm]

Nicholas Kristof raises the ugly spectre of book banning and national ID cards — all to ensure our safety in the face of terrorist threats — in a pretty sloppily thought-out op-ed piece in today’s New York Times: May I See Your ID?. Ernest Miller takes the first of what I expect will be many shots at the holes in his writeup: Security Know-Nothingism

I am surprised that the New York Times is the source for this perfunctory argument in favor of censorship.

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Microsoft Settlement Talks With The EU [1:57 pm]

A couple of articles. It will be interesting to see if this gets resolved before Monday

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Historical Lessons in Legal Marriage Definitions [1:54 pm]

Bans on Interracial Unions Offer Perspective on Gay Ones

What is notable about the 1967 [Supreme Court] decision for the gay marriage debate, then, is that it did not mention the full faith and credit clause. Although the case involved a Virginia couple prosecuted for violating that state’s ban on interracial marriage by visiting the District of Columbia, which allowed such marriages, the Supreme Court did not suggest that Virginia was obligated to recognize the marriage.

To the contrary, the decision affirmed that marriages are generally a matter to be left to the individual states. That is consistent with hundreds of decisions over centuries, based on state rather than federal law, that allowed states to decline to recognize marriages that violated their own strong public policies.

Indeed, in the context of interracial marriages, courts in states that banned such unions routinely declined to recognize those performed in states where they were legal.

But the decisions were not uniform. Indeed, the way courts treated interracial marriages illuminates how gay marriages are likely to be treated.

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Lessig Coverage in InfoWorld [1:50 pm]

Lessig: Be wary of ‘IP extremists’

Silicon Valley needs to step up and protect the open traditions that have helped build the high-technology industry or run the risk of being dominated by “IP extremists” whose restrictions on the use of intellectual property (IP) would stifle innovation, Stanford Law School Professor Lawrence Lessig told an audience of Silicon Valley entrepreneurs, lawyers, and venture capitalists at the Open Source Business Conference here Tuesday.

[...] Silicon Valley has not been mindful of the role that open standards and the free exchange of intellectual property have played in creating the high-technology industry and has allowed others to portray the call for balanced IP laws as an extreme position. “It’s totally wrong that the extremists can define this debate in a way that makes the obvious seem extreme itself,” he said. “We in the Valley have been totally pathetic in defending this totally obvious claim.”

Update: The Slashdot coverage (Lessig On IP Protection, Conflict) points to some NewsForge coverage: Lessig: IP protection a business, not cultural, battleground.

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Time-Warner and a Wire-tappable Network [1:41 pm]

Cable taps into wiretap law (Slashdot: Time Warner To Comply With Wiretap Law)

Time Warner Cable is the first cable company to begin trying to adhere to the Communications Assistance For Law Enforcement Act, the source said. Cable companies are not yet required to comply with the 1994 wiretap law, but they see the writing on the wall.

Vernon Irvin, executive vice president at security vendor VeriSign, said during a recent interview that his company had signed a deal with a “major cable operator” in the United States to help it follow CALEA. He did not identify the provider, but the source tagged Time Warner as the company. A Time Warner representative did not have an immediate comment.

Irvin, however, did assert that other cable companies are sure to follow. That’s because the FBI has made public a far-reaching proposal to require all broadband Internet providers–including cable modem and digital subscriber line (DSL) companies–to restructure their networks to support easy wiretapping by police.

“The cable guys aren’t waiting,” Irvin said.

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KaZaA Contract Dispute [1:38 pm]

With a past programmer: Kazaa coder sues Sharman Networks

And the programmer, one Fabian Toader, wants the US court to grant him $25m in damages, AP reports.

Toader says he wrote portions of the Kazaa Media Desktop application while working as a freelance in 2000. He was hired by Dutch firm Kazaa BV, which sold the rights to the software to Sharman Networks in 2002.

The programmer says he never signed a contract with Kazaa BV. The result, he claims, is that he owns the copyright to the KMD code, not Sharman.

[...] Toader now no longer works in his native Romania as a freelance, but is a Microsoft employee living in Redmond.

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Sony’s eMusic Strategy [1:35 pm]

Looks pretty high-risk to me — Sony music download service to launch in June

Sony today confirmed that it will launch its European digital music download service, Sony Connect, in June.

[...] Each song will be offered in Sony’s ATRAC 3 format, the compressed digital music technology that’s the basis of the company’s MiniDisc products. While tracks will be initially downloaded to a PC, they can only be transferred to “secure Sony portable audio products”. Indeed, Sony is using the service to tout its Hi-MD high-capacity MiniDisc players.

Prices will start at 79 pence in the UK and 99 cents in Europe, Sony said. Tracks are copy-protected using Sony’s own Open Magic Gate (OpenMG) DRM system, and users will need to download songs through the company’s SonicStage jukebox and CD burning app. A new version, 2.0, will be required to use Connect. At this stage, it’s not clear how many times songs will be allowed to be burned, copied to Sony MD players or shared with other, local PCs. Sony bundles SonicStage with its Vaio PCs. We somehow doubt it will offer a Mac version.

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Not Everything’s Going Apple’s Way [1:33 pm]

Jobs: Apple will not meet 100m song download goal

Apple has admitted that it will fall rather short of its first-year iTunes Music Store 100 million song sales target.

“We’re not going to make that number,” CEO Steve Jobs told The Wall Street Journal this week. “At the rate we’re at right now we’ll probably have sold 70-75 million songs by the end of April.”

[...] While the 50 million [sales] figure does not include the tracks given away through the Pepsi-Apple joint promotion, it’s clear from Jobs’ speech that he hoped the giveaway would encourage folks claiming their free song to download some more and pay for the privilege. He also banked on the company’s partnership with AOL helping ramp up the number of paid-for downloads to 100 million.

It’s interesting that a number of well-known news sites were harangued by Mac fans for initially stating that Apple would miss its 100 million. Indeed, both Cnet and BBC News both modified their headlines apparently after being flamed by the Mac community for their apparent error.

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Korean MP3 Phone Fight [1:28 pm]

From Prof. Geist’s BNA News - MP3 Phone Patent Dispute Deepens

LG Electronics, the world’s fifth-largest cell phone maker, last week started selling its LP3000 model, an MP3 phone that can save 16 music files at a time.

The local music industry, which has suffered setbacks of late due to piracy mainly in the form of song swapping over the Internet, responded by expressing strong concerns at free music files being played on the phones.

The Korea Association of Phonogram Producers (KAPP) claimed the rollout is against copyright law and said it will seek to block sales of the LP3000.

[...] Following LG, the world’s third-biggest cell phone maker Samsung Electronics also plans to release a similar phone within this month.

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