April 19, 2004

Jack Balkin on the 2nd Amendment [7:30 pm]

Somewhat apropriate on Patriot’s Day: The Republican Theory of The Second Amendment and Its Ironies

Of course, the civic republican theory is premised on a romantic notion of militias made of sturdy yeoman farmers determined to protect their families and their homeland in the name of liberty. Civic republican theory assumed that in the face of oppression the People as a whole would rise up– that is, that when militias exercised their right of revolution, they would succeed only to the extent that they more or less represented a broad spectrum of popular discontent with a tyrannical government. But in practice, militias do not always consist of the whole people, but rather of particularly angry and aroused segments and factions of the population. And, perhaps more to the point, often the militias that arise to contest a hated government are not always composed of people with particularly admirable aims. Think of Honduras and El Salvador in the 1980’s. Indeed, you might say, at the risk of hyperbole, one person’s militia is another person’s death squad.

In any case, before our very eyes, we are witnessing a demonstration of the republican theory of the Second Amendment, and the role of firearms in contesting a hated government in Iraq. That government, unfortunately, happens to the the provisional authority run by the United States. It is not clear whether the various Sunni and Shiite factions that are momentarily making common cause against the government in place– that is, the United States of America– truly represent the People of Iraq. There may, in fact, be no such thing as the People of Iraq. But there are people in Iraq, and many of them seem to hate the provisional authority (and the United States) very much, to the point that they are willing to take up arms against it. Or to put the point more piquantly, one person’s minuteman is another person’s mujahideen.

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Broadcast Flag for Digital Radio [6:45 pm]

Ernie and Donna both raise important questions about the provenance of the FCC’s initiative to explore regulation digital radio. The FCC press release points to the Notice of Inquiry, where we we will (supposedly) find the following:

Subjects raised for comment in the Notice of Inquiry include digital audio content control and international issues.

The FCC’s IBOC site just carries the press releases and commissioner statements. Donna notes that PublicKnowledge is exploring the extent to which the RIAA participated in the generation of this inquiry.

Public Knowledge’s request, filed electronically, asked for “all communications, letters and records of meetings between Jan. 1, 2004 and April 15, 2004 in docket MM 99-325 between Federal Communications Commission members, their staffs and Commission staff with (1) the Recording Industry Association of America (RIAA); (2) RIAA member companies; (3) representatives of the law firm of Arnold and Porter (4) representatives of the National Music Publishers Association or the Harry Fox agency.”

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Taking on the FCC Profanity Ruling [6:06 pm]

Broadcasters Fight Back Against Profanity Ruling

A coalition of more than 20 broadcasters, artists’ groups and media organizations filed a petition on Monday asking the Federal Communications Commission (news - web sites) (FCC (news - web sites)) to reconsider a profanity ruling that is part of what some commentators have called a new sexual McCarthyism.

The petition, signed by broadcast network owners Viacom Inc. and Fox Entertainment Group as well as the Screen Actors’ Guild and other groups, charges the FCC has expanded its authority beyond constitutional limits and that broadcasters are being forced into self-censorship.

[...] An NBC spokeswoman said the network would file a separate petition challenging the FCC ruling on Monday. NBC is a unit of General Electric . An ABC spokeswoman said The Walt Disney Co.-owned network would not weigh in on the matter.

Update: See also the NYTimes article, Media Groups Ask F.C.C. to Reconsider NBC Ruling

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Ubiquity of Music Filesharing [2:50 pm]

Piracy no stranger to Christian tunes (registration req’d) [pdf]

Christian teens are stealing Jesus music.

They’re doing it through Internet downloads and CD burnings at nearly the same rate as secular music is being pirated by non-Christians, according to a new study done for the Gospel Music Association.

The findings were a jolt to many in the evangelical music industry, who expected churchgoing teens to be mindful of the Commandment, “Thou shalt not steal.”

“I’m surprised and disappointed that the behavior isn’t that ardently different between Christians and non-Christians,” said John Styll, president of the Gospel Music Association, the leading trade group for evangelical music.

But not everybody thinks the pirating is a bad thing. After all, some church leaders say, isn’t getting the Gospel out more important than getting paid? How can it be wrong if it saves souls?

“That’s convoluted logic,” said Barry Landis, president of Word Records, a major Christian label. “You would never steal Bibles to give them away. You shouldn’t steal Christian music to give away either.”

I needed to break this quote out separately:

Musicians say the piracy issue is particularly thorny for them to broach. Many fear being seen as greedy, the backlash faced by the heavy metal band Metallica when it sued Napster, once the most popular file-sharing software system.

We can’t be like Christina Aguilera and get all attitudy,” said Jaci Velasquez, a platinum-selling singer originally from Texas. “We’re supposed to be like Christ and turn the other cheek.” [emphasis added]

Note that the whole article is worth reading, in that much of the rhetoric is directed at things that are wholly consistent with fair use, e.g., burning a copy of a purchased CD for a friend — rather than anonymous internet filesharing.

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HP’s Payoff For Embracing DRM? [12:15 pm]

Hewlett Packard Goes Hollywood

On Monday, Hewlett-Packard will announce sweeping partnerships with Warner Bros. and DreamWorks. The company is aiming an array of software and services at Hollywood content creators, hoping they will choose HP for every step of the production process — from rendering animated characters on workstations to lifting dirt specks from classic films like Singin’ in the Rain.

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ClearPlayer DVD Player Coming [12:11 pm]

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The Need For Speed [11:57 am]

Not everyone feels it: In a Fast-Moving Web World, Some Prefer the Dial-Up Lane

“I don’t do gaming. I don’t download a lot of graphics,” she said. “For the money I would spend, I don’t need it.”

Those are words that can give high-technology industry executives chills. They have proclaimed the spread of high-speed, or broadband, connections to be integral to the industry’s growth, essential to American competitiveness and indispensable to consumers. Even President Bush jumped into the fray last month, calling for affordable, universal high-speed access by 2007.

Up to now, the market for high-speed connections has been dominated by the young, educated, affluent and tech-savvy. In some circles, it is considered not just functional, but an essential bit of modernity, like knowing what happened on “The Sopranos” or that Diesel refers to jeans, not fuel. Some users of dial-up sheepishly acknowledge that they avoid admitting their low network speeds when they are with their better-connected friends.

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Infringe Copyright: Refill a Toner Cartridge [11:54 am]

A look at the start of the business — Ink Cartridge Hobby Becomes Franchise

Another problem for the refillers is keeping up with innovations in cartridge design while facing new legal challenges from printer makers. Lexmark filed a copyright infringement suit in 2002 against Static Control Components, a North Carolina company that makes components used in remanufactured cartridges. The suit also contended that Static Control had violated the Digital Millennium Copyright Act.

Static Control’s Smartek chip reproduced the digital code that some Lexmark printers required to recognize a cartridge as authorized. In February 2003, Lexmark won an injunction against Static Control Components, which appealed to the United States Court of Appeals for the Sixth Circuit. The parties are awaiting a ruling. In late February, Static Control released a new set of Smartek chips; Lexmark has since filed claims against Static Control Components and remanufacturers using the new chip, said Seth D. Greenstein, a lawyer for Static Control.

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BloggerCon Coverage in the NYTimes [11:51 am]

Probably not of the sort that was expected: Many Started Web Logs for Fun, but Bloggers Need Money, Too

“I didn’t get into this to make money,” said Mr. Batchelder, a blogger from Brookline, Mass., whose business card cube is posted at www.nedbatchelder.com/text/cardcube.html.

That was a refrain of most of the bloggers at Bloggercon II, a conference sponsored on Saturday by Harvard Law School’s Berkman Center for Internet and Society. But a hot topic was whether blogging would ever become a major source of income for large numbers of people.

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Media Consolidation: A Different Venue, Same Problems [11:49 am]

No Shots of a Cheap Shot, and Some Wonder Why

When Todd Bertuzzi of the Vancouver Canucks sucker-punched Steve Moore of the Colorado Avalanche last month and drove him face-first into the ice, he ended two seasons - Mr. Moore’s with two broken vertebrae and his own with an indefinite suspension. He also inadvertently fueled a controversy about ethics in the rink of photojournalism.

Getty Images markets itself as an unbiased source of news photos with ethical standards that compare favorably to competitors like Reuters or The Associated Press. But even though a Getty photographer was at the game, no photos of Mr. Bertuzzi’s cheap shot made it to Getty’s wire service, raising questions about whether Getty’s deal for exclusive marketing rights with the National Hockey League had anything to do with the image blackout.

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Sony Working on its Schizophrenia [11:47 am]

Teaching an Old Walkman Some New Steps

Jay Samit, a longtime music industry executive, was appointed general manager of Sony Connect, a new subsidiary that will sell songs online and allow consumers to play them on their Sony gadgets.

His appointment was largely overlooked outside the company, but inside, the move was immediately understood as a way to unite the sometimes conflicting electronics and content divisions.

That internal battle was seen by many as the reason Sony, the inventor of the Walkman and the biggest player in the portable audio market, was being trounced by Apple Computer and its hit, the iPod music player, in the emerging digital segment. Something had to be done.

How Sony got outflanked is as much about Sony’s inflexibility as Apple’s initiative. With its ownership of premier music labels and its foundation in electronics, Sony had all the tools to create its own version of iPod long before Apple’s product came to market in 2001. But Sony has long wrestled with how to build devices that let consumers download and copy music without undermining sales in the music labels or agreements with its artists.

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ACNS [11:34 am]

More evidence that the copyright power is being extended to control is being extended to control all digital communication — Hollywood’s new lesson for campus file swappers

Known as the Automated Copyright Notice System (ACNS), the technology promises to make copyright enforcement easier on peer-to-peer networks, saving schools and Internet service providers (ISPs) time and money. ACNS allows them to automatically restrict or cut off Internet access for alleged infringers on notice from a record label or movie studio. For example, universities using ACNS could instantly send notices of copyright infringement to students by e-mail and restrict their network access until they have removed the file.

[...] Universities have an incentive to cooperate with the technological solutions because they can be held liable in lawsuits charging their students with digital theft.

[...] Although universities are interested in tools that can help them reduce campus piracy, some are reluctant to use ACNS because of concerns that it might not give students a chance to contest the charges against them.

UCLA’s new piracy prevention program, for example, is based on principles used in ACNS but ensures that students will always get a fair shake, according to the school’s director of IT policy, Ken Wada. The policy affects 7,500 students who live on campus.

The story claims that the program is open source, but I can’t find it. At least UCLA is still giving accused students a process to appeal this (since I cannot imagine how this system protects fair use), but this is a chilling article — particularly since the writer’s thrust is all in favor of this kind of system.

Here’s how it works:

Several studios and record labels, including Universal Music Group, have begun to standardize the tags at the bottom of their takedown notices into XML, code that allows data to be used seamlessly in various contexts.

The digital tags contain the name of the copyrighted material that’s been comprised, the copyright holder’s name, date and time stamp, and the Internet Protocol address of the infringer. Receipt of this tag triggers the internal notification process at a university or ISP using the system.

Typically, it can take days or weeks for a university to act on a copyright violation request. When a request reaches the IT administrators, they must investigate who used the IP address in violation of its file-sharing copyright policies. Then they send a note to the residential housing adviser where the student lives. The adviser then sends a note to the dean’s office about the student’s activity. And the dean will act on the school’s policy for such behavior, notifying the student and potentially disconnecting Internet access to the student’s machine.

ACNS would trigger such e-mail notifications and could automatically choke off the student’s access to a peer-to-peer network, while leaving his Internet or e-mail connection untouched. Depending on the school’s policy, it could put the student into a 30-minute penalty box, without access, on the first offense. The second offense could warrant a week without peer-to-peer privileges, and so forth.

So, essentially what is happening is that an ACNS-capable network is run by copyright holders instead of the ISP — ownership of the instruments of digital communication through the threat of a copyright infringement lawsuit.

"Promote the progress of science and the useful arts" indeed!

Fred von Lohmann points out the likely student response:

“Whether it’s an opening gambit for the recording industry to try to tell universities how to design their computer systems, we’ll have to wait and see,” von Lohmann said. “The trouble I have with this, there will be countermeasures, and who is going to absorb costs to constantly modify this system to make it work? Do universities really want to be drawn into the arms race?”

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OSRM Starts Up Its Pitch [11:01 am]

Start-Up Says Linux Copyright Abuse-Free

The new company, Open Source Risk Management (OSRM), set up by lawyer and venture capitalist Daniel Egger, plans to offer standard product liability insurance to major Linux vendors, big corporate users and individual developers of Linux.

“After a rigorous six-month process of examining the individual software files in the Linux kernel and tracing their origins, OSRM found no copyright infringement in kernel versions 2.4 and 2.6,” Egger, OSRM’s chairman, said in an interview. He was referring to the two most commonly used versions of the Linux operating system.

GrokLaw’s posting: OSRM Certifies Linux Kernel Free of Copyright Infringement

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