June 29, 2004

Fair Use Takes A Point [10:49 am]

Sadly, though, chilling effects still seem to have the upper hand….. Judge Says Artist Can Make Fun of Barbie (see also Mattel v. Walking Mountain

Seven years ago when Tom Forsythe, an artist and photographer, was searching for a subject for a new project, he settled on Barbie, ultimately producing a series of 78 photographic images of the wildly famous doll showing her nude, and sometimes posed provocatively, in or around various household appliances.

[...] Mr. Forsythe developed a theme that he called “Barbie’s power as a beauty myth.” He displayed his photographs at art fairs in Utah and Kansas City, generating a few thousand dollars in sales but otherwise attracting little notice.

But his work drew the attention of Mattel Inc., which has manufactured the Barbie doll since 1959. In the summer of 1999, Mattel sued Mr. Forsythe for copyright and trademark infringement.

After a lengthy legal tussle, which included a series of appeals, a federal judge late last week instructed Mattel to pay Mr. Forsythe legal fees of more than $1.8 million.

Copyright: Mattel Spanked for Bringing Objectively Meritless Suit Against Artist and More on Barbie’s battles…

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June 28, 2004

The Father of the DVD [1:08 pm]

A Newsweek profile: One Man’s Flight of Fancy (Slashdot)

In the future, will there be a place for a “hard” medium that you can touch and store on your shelves? Lieberfarb believes that answer is no. “The future will see video on demand delivered over the Internet, and movies will be just one of the offerings,” he says. Already, services like RealNetworks can offer “Finding Nemo” online, and TiVo offers connections to Internet movie sites. Digital video “will transform what, where, when and how we get our entertainment,” he says.

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June 26, 2004

Further Beastie Boys on Slashdot [7:43 pm]

I doubt there’ll be a Slashdot echo, but it’s interesting to see just how sensitive the Beastie Boys (or their fans) seem to be to the attribution of DRM-crippled CD releases to them. Should make for some interesting times when the record companies start rolling them out in earnest soon: Beastie Boys Respond to DRM Claims

Note: I’ll be away for a couple days, and thus posting somewhat less (possibly not at all!) until I get back. Check the blogroll to the right for updates. And try Findory’s Blogory — it’s been an interesting way to get a look at more of the blog world than I usually have time to do.

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PIRATE Act Passes Senate [8:19 am]

So much for all the whistling past the graveyard, claiming that Congress had too much real work (like passing a budget) to mess with the copyright fights. Now my tax dollars will go to helping maintain the RIAA/MPAA business model, unless the House shows more sense — good use for the Department of Justice with a summer of “high alert” coming my way: Senate OKs antipiracy plan (S.2237 status)

Senate leaders scheduled Friday’s vote under a procedure that required the unanimous consent of all members present. Now the Pirate Act, along with a related bill that criminalizes using camcorders in movie theaters, will be forwarded to the House of Representatives for approval.

“These acts will provide federal prosecutors with the flexibility and discretion to bring copyright infringement cases that best correspond to the nature of the crime and will assure that valuable works that are pirated before their public release date are protected,” said Mitch Bainwol, chairman of the Recording Industry Association of America. Counting a new round of lawsuits filed this week, the RIAA has sued 3,429 people so far.

[...] One influential backer of the Pirate Act has been urging an avalanche of civil suits. “Tens of thousands of continuing civil enforcement actions might be needed to generate the necessary deterrence,” Sen. Orrin Hatch, a Utah Republican, said when announcing his support for the bill. “I doubt that any nongovernmental organization has the resources or moral authority to pursue such a campaign.”

“This turns the Department of Justice into a civil law firm for the industry’s benefit,” said Adam Eisgrau, the executive director of P2P United. Its members include BearShare, Blubster, Grokster, Morpehus and eDonkey.

Slashdot, oddly enough, only focuses on the camcorder bill: Senate Unanimously Passes Anti-Camcorder Bill

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June 25, 2004

It’s Friday: Pending George W. Bush Singers Release [9:58 am]

The George W Bush Singers WWW site announces the pending release of An All-New — FCC Friendly — CD Release Packed With Memorable Words of InspirationSongs in the Key of W [via MI2N]

There’s a site with song samples

It’s election time. In joyous celebration, a group of talented musical balladeers joined together to celebrate our President. Austin, Texas based Choir Director Steve McAllister decided it was time to start singing the right songs. Drawing inspiration from the memorable words spoken by our President, McAllister and a cast of patriots opened the door of musical oppression. It was easy — they had the key…

In the tradition of The First Family, The Capitol Steps and A Mighty Wind, Songs In the Key of W contains no bad or questionable words, but may contain some questionable grammar.

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A Big Day for the FCC [9:29 am]

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NYTimes Op-Ed on Music Biz & Compulsory Licensing [9:08 am]

Two op-ed pieces in the NYTimes today on the music business and the push for compulsory licensing (Terry’s book must be coming out soon!):

  • Harvard Law School’s Terry Fisher: Don’t Beat Them, Join Them

    History may give us some guidance. After all, file sharing isn’t the first new technology to have destabilized the entertainment industry. The way in which the industry responded to the introduction of three earlier inventions — radio, the VCR and Webcasting — offers important clues for music executives today.

    [...] If the pattern holds, then the record industry’s response to file sharing — trying to block the technology altogether — would generate the worst of all possible results. To its credit, the industry has started to participate in paid music download services like iTunes, but a better solution would be to institute a monthly licensing fee paid by Internet users. History suggests that the record industry, and society at large, would be better off in the long run if it approached this new challenge with more open minds.

  • University of Iowa’s Kimbrew McLeod: Share the Music

    With its new round of lawsuits, the recording industry association is once again demonstrating its failure to recognize the obvious: file sharing isn’t going away. Consumers have grown attached to it, and more and more musicians believe file sharing can help promote their music in an age of limited play lists at radio stations. Given its hold in our culture, downloading, in some form, must be part of any solution to this impasse.

    A blanket license model, like that legalizing the use of copyrighted material by cable television and radio, can point us to a future system that might work for file sharing. There would be differences, of course, but there’s no need to reinvent the wheel. Various lawyers, professors and organizations, including the Electronic Frontier Foundation, a nonprofit group dedicated to protecting individual freedoms in the digital age, have offered workable solutions.

    [...] Some critics call these plans unrealistic, but a legally sanctioned cable television system also seemed like a pipe dream in the 1960’s because of the television industry’s resistance.

    It would be dishonest, and foolish, to suggest that hammering out a compromise palatable to all sides is going to be easy. But the alternative — to do nothing, or to pass new industry-backed legislation — would continue to criminalize the everyday behavior of millions. And it would continue to stifle an innovative way to distribute artistic works.

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You Say Cannibalism, I Say Fair Use [9:01 am]

Tasteless? Inept? Perhaps. But, with language like this, don’t be surprised when Sen. Hatch decides to extend copyright terms based on the critique given here: Critic’s Notebook: Stop! Thief! An Author’s Mind Is Being Stolen!

You don’t have to be personally involved or angry to notice how often dead writers’ words are lifted and put in the mouths of their novelized selves today. Their lives and ideas have been borrowed, even more insidiously than they are on screen, in three novels about Henry James, one about his brother William and two about Plath. Reach back a few more years and there’s Michael Cunningham’s Virginia Woolf-inspired fiction, “The Hours.” These contemporary novelists go inside other writers’ minds, pilfering their language — a phrase here, a whole diary passage there — feeding off their bodies of work in acts of literary cannibalism.

Colm Toibin’s beautiful, subtle illumination of Henry James’s inner life in “The Master” is surprising. But it’s the book’s artistic success that is startling, not its attempt to invade a dead writer’s thoughts. The extravagant attention to “The Master,” in fact, highlights how prevalent the concept is, how cheap and easy it is to botch things up.

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“DRMing” Public Domain Texts [8:54 am]

BoingBoing points out that you can buy your own DRM-protected copy of the US Constitution from Amazon: DRM’ed Constitution: more primitive than the original [via IPNewsBlog]

This DRM’ed ebook version of the US Constitution costs $3, and can only be printed twice per year. As John notes, “It would only take 7 years to get copies out to the 13 colonies. Even with the primitive means the colonists had, it only took a few months to distribute the constitution.”

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Call for Licensing [8:25 am]

From EFF’ Deep Links: If Not INDUCE, then What?

While we at EFF have been critical of the overbreadth of the INDUCE Act, some have asked “what would you suggest that would target P2P while leaving things like the iPod intact?”

Answer: It’s not a question of more laws, it’s a question of new business models.

Related: Taking the INDUCE Act to its Illogical Conclusion

What would the world look like under Senator Orrin Hatch’s (R-UT) INDUCE Act (PDF)? To give you a glimpse, we drafted a mock legal complaint (PDF) against Apple for “inducing” copyright infringement by manufacturing the iPod, against CNET for reviewing the iPod, and against Toshiba for providing hard drives for iPod files.

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June 24, 2004

Ernest Is [Bothered], Too [10:28 am]

The Obsessively Annotated Introduction to the INDUCE Act

In introducing the bill, Hatch provided extensive justifications and arguments on behalf of the bill. Eight pages worth: Before the United States Senate on Introduction of the “Inducing Infringement of Copyrights Act of 2004” S. 2560 [PDF]. Since it looks like this bill will move quickly in Congress, opponents will have to get up to speed quickly. Thankfully, Hatch provided an excellent guide to the talking points proponents will use. Consequently, I’ve decided to go through Hatch’s introduction and extensively annotate it. However, this is just a response piece and many arguments against the bill won’t be here. The annotation is long, but I think there are definitely some valuable nuggets of information, such as, towards the end, Hatch makes clear he wants criminal enforcement of the Act.

My comments are in brackets, bold and italics. I’ve added hyperlinks to Hatch’s text as I thought useful.

My recommendation: Read it. All of it. Now. Then suggest it to someone else.

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Derek’s Bothered….. [10:22 am]

And he explains why in two good postings: Things That Bother Me, Vol. 1 and Things That Bother Me, Vol. 2. The first is about Sen Hatch’s misuse of some Berkman Center materials in support of his IICA; the second is about why keeping Betamax as doctrine in this area is so important

[T]he point makes some sense: it is silly that we let Morpheus get a free ride while Napster had to be shut down. Unlike Hatch, however, I certainly don’t think that this inconsistency demands a rule such that that Morpheus is also liable. Indeed, I think we can still leave Napster liable while avoiding the “tech mandate”/tech ban problem. To create a more consistent and beneficial doctrine, we should tweak - but not eviscerate - the Napster decision.

Interpreted broadly, Sony stands for the principle that we should let new technology develop completely unconstrained from secondary liability. As I have discussed elsewhere, I think Sony rule should actually be interpreted a little narrower. Sony stands for not using secondary liability to force tool-makers to modify how their tools operate, but secondary liabilty could apply to the tool-maker’s conduct in relation to the tool-user.

[...] [W]hat change would not affect non-infringing uses, definitively? We don’t know, and no weighing can properly take into account these undefined and thus indeterminately impacted uses. Sony understood this point - that by constraining the way a tool functioned, we risked impairing legitimate uses. The VCR ushered in “time-shifting,” a use that most people probably did not conceive of prior; it, and other technologies, could also usher in other untold uses, which would have been impacted by any change to the tools themselves. Telling Napster to respond to notices of infringement is consistent with this rule as well as with a rule that forces Morpheus to do nothing. One could sever Napster’s infringing uses from the non-infringing uses, known or not; by addressing their conduct only, new uses of the technology could continue to evolve. In so doing, we could get rid of the de facto “tech mandate” that effectively bans centralized P2P and thus no longer “reward inefficiency.”

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Network Taxation Under Consideration In Florida [9:07 am]

It’s going to be interesting to see how they expect to collect this tax: Florida to Tax Home Networks

Florida state officials are considering taxing home networks that have more than one computer, under a modified 1985 state law that was intended to tax the few businesses that used internal communication networks instead of the local telephone company.

[...] “According to my accountant, the way the law is written, if my tax filing includes deductions for the repair or maintenance of my two computer and one printer network, those costs will be subject to state communication taxes,” said graphic artist Linda Kellman, who works from home. “Self-employed people get slammed with insane taxes everywhere, and I’ve sadly but grudgingly accepted that. But this tax, if they ever try to collect it, would be the last straw. Can I outsource my network to a more sensible state, do you think?”

[...] “All my life, I’ve willingly paid my fair share of taxes in exchange for community services,” said 73-year-old George Fedoro, a retired engineer who now lives in Boca Raton. “But this tax is not fair and could turn senior citizens into criminals, because no one that I know can or will pay it.”

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Transparent Ploy, Or Change At Microsoft? [8:53 am]

Microsoft Tells Court It Won’t Be a Rival to Oracle

A top executive of the Microsoft Corporation testified on Wednesday that the company has no plans to compete in the enterprise software market, bolstering the government’s case that the market is far less competitive than Oracle contends.

Amazing how often I get to mention Theodoric of York in this weblog!

Update: I just got an email pointing out that this search on "enterprise" and "solutions" within the microsoft.com domain yields over 30,000 hits. ("enterprise solutions" yields about 2000) Seems like lots of people at Microsoft are wasting their time putting together website information on a market niche within which they have no plans to compete — maybe someone should tell the board?

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Harmonic Convergence [8:46 am]

The day after Sen Hatch’s effort to wipe out Grokster hit the Senate floor, there was a hearing before the US Senate Committee on Commerce, Science, & Transportation, The Future of Peer-to-Peer (P2P) Technology. The testimony is now online. There also is a webcast. The participants:

In the face of the IICA/INDUCE Aet, the FTC testimony is particularly notable,

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OT: Maybe It’s The Moonies [8:23 am]

Glad to see this story getting ink outside of Salon. What is this about, anyway? A Crowning at the Capital Creates a Stir

[N]ews that the Rev. Sun Myung Moon, the eccentric and exceedingly wealthy Korean-born businessman, donned a crown in a Senate office building and declared himself the Messiah while members of Congress watched is causing a bit of a stir.

[...] To hold the event in the Dirksen building, the organization was required to find a senator to act as a sponsor. But the identity of the sponsor remained a secret on Wednesday; the Senate Rules and Administration Committee, which approved the request, would not release the name.

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ClearPlay Also On House JudComm’s Mind [8:18 am]

Push to Allow DVDs to Be ‘Sanitized’ Alarms Studios

A House bill now gaining momentum would make it so that sanitizing films do not violate federal copyright law as long as the edited copies are restricted to home use, as opposed to being shown in theaters. DVDs are sanitized through filters that can remove any kind of material regarded as offensive — profanity, nudity or violence, for example.

[...] The legislation was introduced in response to a fight being waged in federal court in Colorado by the studios, the Directors Guild of America and 16 prominent directors against ClearPlay Inc., a Utah company that sells filtering software and DVD players with special filtering features built in.

Jack Valenti, president of the Motion Picture Assn. of America, told a congressional committee last week that such editing without the input of the directors and studios “disfigures the original vision of the creator.”

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IICA (née INDUCE) Act Coverage [8:06 am]

  • New York Times: Bill to Curb Online Piracy Is Challenged as Too Broad

    A copyright bill introduced in the Senate this week is facing criticism from groups including representatives of the telecommunications and electronics industries, who contend it could make computer companies, Internet providers and other technology businesses liable for online piracy.

    But supporters of the bill, including its bipartisan sponsors, say it would provide a powerful tool to curb illegal copying of music files and other media, and would protect children from the lure of a technology that is intended to help them break the law.

    [...] But Mitch Bainwol, chief executive of the Recording Industry Association of America, a recording industry lobbying group, said the legislation was meant to be narrowly tailored to address companies that build technology focused on illegal file sharing.

    He said he did not envision the legislation’s enabling lawsuits against “neutral” technologies, like computer makers.

    “This is not about going after the device makers,” Mr. Bainwol said, though he stopped short of guaranteeing that the recording industry would never use the measure to sue them.

  • Washington Post: Expanded Copyright Law Proposed

    But some legal experts argue that the bill is worded so broadly that it threatens numerous electronic devices and software products that enable copying of digital entertainment. And opponents worry that the bill is being hustled through the Senate without sufficient hearings and debate.

    [...] “I find it sort of scary,” said Jessica D. Litman, a law professor at Wayne State University. “It is worded so broadly that it . . . threatens to sweep within it all of the other activities, devices and technologies that have infringing as well as non-infringing uses.” These might include, for example, machines that “burn” compact discs or digital video discs (DVDs).

    [...] Susan P. Crawford, a professor of Internet law at the Benjamin N. Cardozo School of Law in New York, said that any lawyer advising makers of devices, software or even Internet service providers would be compelled to warn them that they could face secondary liability if they know their products might get used for illegal purposes.

    “The VCR would not be a legal product; TiVo would not be a legal product,” said Gary Shapiro, president of the Consumer Electronics Association. “I’m surprised the leadership would jump on this bill without hearing from the other side.”

  • The Boston Globe: US Senate bill targets Net media-swapping

    Movie and recording industry groups praised the bill, while a trade group representing several peer-to-peer networks said it would hurt innovation.

    Separately, one peer-to-peer executive said movie and music companies were pressuring other companies not to do business with them and asked the government to investigate.

    Under a recent US court ruling, peer-to-peer networks cannot be held liable if consumers use them to distribute copyrighted works. While that case is being appealed, the recording industry has sued 3,429 individual peer-to-peer users, many of them underage.

  • CNet News: Senate bill bans P2P networks

    An early version of the IICA seen by CNET News.com was called the Inducement Devolves into Unlawful Child Exploitation Act, or Induce Act. The final version appears to be identical.

    [...] Under existing law, companies are not liable for “vicarious copyright infringement” performed by their users, said Mike Godwin, a lawyer at the advocacy group Public Knowledge. That legal doctrine permits Sony to sell VCRs, TiVo to sell digital TV recorders and Apple Computer to sell iPods, even though some fraction of their customers use them for copyright infringement.

    If the IICA were to become law, “let’s say that you’re selling an MP3 player and it turns out that the MP3 player can be used to move copyrighted material around really easily,” Godwin said. “People start buying your MP3 player. Do you want a world where courts can say, ‘Hey buddy, you’re liable for copyright infringement?’”

  • Wired News: File-Trading Bill Stokes Fury

    Adam Eisgrau, executive director of P2P United, a group representing the file-trading industry, believes the Induce Act is an attempt by the recording industry to mute the unpleasant ramifications of a likely appeals court loss.

    “It’s a stealth maneuver intended to circumvent a line of cases emerging that peer-to-peer software is indeed legal to design, to make available and to use, on a case-by-case basis, depending on what you use it for,” Eisgrau said. He characterized the Induce Act as an example of “big entertainment pulling big strings.”

    [...] Another problem with the bill, said Will Rodger, director of public policy at the Computer and Communications Industry Association, which is pressing to block its passage, is that its authors do not provide a clear definition of what constitutes inducement.

    “As we read it, reporters who wrote about peer-to-peer file-trading networks could well be charged with inducing infringement,” he said. “Their definition of inducement seems to cover almost anything.”

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June 23, 2004

OT: Something To Think About [4:47 pm]

From Eschaton: Clinton on the Press

From his book:

I was genuinely confused by the mainstream press coverage of Whitewater…One day, after one of our budget meetings in October, I asked Senator Alan Simpson of Wyoming to stay a moment to talk. Simpson was a conservative Republican, but we had a pretty good relationship because of the friendship we had in common with his governor, Mike Sullivan. I asked Alan if he thought Hillary and I had done anything wrong in Whitewater. ‘Of course not,’ he said. ‘That’s not what this is about. This is about making the public think you did something wrong. Anybody who looked at the evidence would see that you didn’t.’ Simpson laughed at how willing the ‘elitist’ press was to swallow anything negative about small, rural places like Wyoming or Arkansas and made an interesting observation: ‘You know, before you were elected, we Republicans believed the press was liberal. Now we have a more sophisticated view. They are liberal in a way. Most of them voted for you, but they think more like your right-wing critics do, and that’s much more important.’ When I asked him to explain, he said, ‘Democrats like you and Sullivan get into government to help people. The right-wing extremists don’t think government can do much to improve on human nature, but they like power. So does the press. And since you’re President, they both get power the same way, by hurting you.’ I appreciated Simpson’s candor and I thought about what he said for months. For a long time, whenever I was angry about the Whitewater press coverage I would tell people about Simpson’s analysis. When I finally just accepted his insight as accurate, it was liberating, and it cleared my head for the fight.

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Problems in Sen Frist’s Home State? [4:29 pm]

From the Congressional Record: Sen. Frist’s statement on the introduction of S.2560

from S7193, Congressional Record

Mr. FRIST. Mr. President, I rise in support of the Inducing Infringement of Copyrights Act of 2004 introduced today by Senators HATCH and LEAHY. I am proud to be an original cosponsor. The Inducement Act addresses the growing problem of online piracy–the illegal downloading of copyrighted music. Piracy is devastating the music community and threatening other forms of copyrighted work. This commonsense, bipartisan legislation takes important steps in protecting our Nation’s intellectual property.

When I return home to Nashville and drive down Music Row, my heart sinks as I see the “For Sale” and “For Rent” signs everywhere. The once vibrant music community is being decimated by online piracy. No one is spared. It is hitting artists, writers, record companies, performing rights organizations, and publishers.

Hmmm — so now P2P-based copyright infringement is responsible for the state of the real estate market in Nashville’s Music Row? Really?

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