October 27, 2004

First Peter Pan, Now Scarlett O’Hara [7:14 pm]

Gone With the Wind heirs threaten Project Gutenberg [via CopyFight's Copyright Balance Gone With the Wind?]

The Stephens Mitchell Trusts wants Australian Gutenberg volunteers either to remove Gone With the Wind from their servers or else take steps to prevent downloads in countries where copyright law bans unauthorized distribution of the 1936 classic.

Otherwise, a lawyer for the heirs says in email and a certified letter, “we will take all appropriate steps to protect and enforce our clients’ rights.”

[...] [T]he Gutenberg volunteers face a possible legal trap–in fact, two. If the Australian Gutenberg takes down the novel without a request from the American PG [Project Gutenberg] even though Australian law does not require this, Margaret Mitchell’s estate may just say the two groups are in cahoots with each other. The estate might claim that the Australians were trying to protect the Americans. If the U.S. Gutenberg asks for a take-down, the estate might also claim a close relationship.

A related argument might be trademark. The estate lawyers may use this as further evidence of an actual tie.

[...] Significantly, Margaret Mitchell died in on August 16, 1949. Without the Bono Act, the book’s copyright would have expired in 1999. Now, however, in the States, the book apparently won’t enter the public domain until 2019. With this situation in mind, it is high time that Congress either repealed Bono or at least mitigated it–lest greedy heirs and Doberman lawyers shut down worthwhile efforts like Gutenberg.

Meanwhile Australia, which appears on the cusp of increasing copyright terms past the 50-year mark, would do well to consider the repercussions before letting wealthy American heirs and donation-crazed U.S. politicians dictate law to them. The expected changes in Australian copyright law would not have come out without U.S. pressure by way of a trade agreement.

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Stallman on Intellectual Property [7:08 pm]

Why the term ‘intellectual property’ is a seductive mirage [via IPNewsBlog]

If you want to think clearly about the issues raised by patents, or copyrights, or trademarks, or even learn what these laws say, the first step is to forget the idea of lumping them together, and treat them as separate topics. If you want to write articles that inform the public and encourage clear thinking, treat each of these laws separately; don’t suggest generalizing about them.

And when it comes to reforming WIPO, among other things, let’s call for changing its name.

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“Jane, You Ignorant Slut” [6:42 pm]

A point-counterpoint on broadband policy:

  • High-Speed Internet Policy Failure: U.S. Slips to 13th in Broadband Service Worldwide and Digital Divide Grows Under Bush Administration

    The report, Expanding the Digital Divide and Falling Behind in Broadband, documents the advantages that Internet households, particularly those with high-speed access, have in conducting economic, social and political activities, and concludes that it is critical to aggressively close the digital divide by promoting universal service at affordable prices for all.

    The report notes that in 2001, Chairman Michael Powell and the National Telecommunications Information Administration declared the digital divide a non-problem and proceeded to ignore it, adopting policies to eliminate all public interest obligations for the advanced telecommunications networks used to provide high-speed and voice over Internet service.

  • Broadband by 2007: A Look at the President’s Internet Initiative

    The news on broadband isn’t all bad. We are 10th or 11th, depending on the different data points you look at. Yet broadband take-up has been very rapid in this country. By some measures, broadband pick-up has been faster than color TV, the Internet, mobile phones, VCRs, or PCs–it is moving along pretty well. From 7 million broadband subscribers in 2000, we had 24 million in June 2003. That represents a 230 percent increase. There was an independent research report in the news just the other day. The Department of Commerce is going to be coming out with their numbers soon, which will be harder data points that say, “That’s the number.”

    Just as the President will not be satisfied until every American who wants a job has a job, he is similarly not satisfied with the rate of the broadband penetration. That is why he set this aggressive target.

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A Natural Evolution, I Guess [6:37 pm]

From gold records to gold MP3s

It might not be the same as having a big gold record on the wall, but the Recording Industry Association of America has issued its first gold, platinum, and multiplatinum certifications for digital downloads.

The first obvious winner? Outkast’s “Hey Ya!” is the only multiplatinum single so far, with more than 400,000 downloads. Six songs qualified for platinum, or sales of 200,000 singles, and 45 titles got gold status, for selling 100,000 songs.

These awards “are a reflection of both the commitment of the entire music community to consumer-friendly legitimate digital services and fan appetite for high-quality music,” RIAA Chief Executive Officer Mitch Bainwol said in a statement.

Hmmm, I thought these awards have always been a celebration of a record’s sales volume….

Later: Jenny Levine makes an excellent point: And There Isn’t a Single Library that Can Circulate Any of Them; BBC News: Digital sales honour for OutKast

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Unexpected Problems: DVDs On The Road [2:00 pm]

Speech, safety, decency — who’d a thunk it? When the Car Beside You Is an XXX Theater [pdf]

On-board video has become widely popular with drivers, especially those with children. But while many motorists entertain back-seat passengers with DVD’s like “Willy Wonka and the Chocolate Factory,” a surprising number choose racier fare.

Andre Gainey, for example, was playing a pornographic video on three screens in his Mercedes last February as he drove past a police station in Schenectady, N.Y. Mr. Gainey, 35, was arrested and later convicted of a misdemeanor charge of public display of sexual material and other violations. Last August he was sentenced to three weekends in jail.

Few cars are equipped with as many screens as Mr. Gainey’s. But complaints from people who have spotted explicit images on screens inside cars are growing nearly as fast as on-board DVD sales.

[...] Sightings of adult videos by passengers — including children — in other cars “is a vexing new phenomenon,” said Jan LaRue, chief counsel for Concerned Women for America, a conservative advocacy group in Washington. Ms. LaRue, who wrote an essay titled “Four-Wheel Indecency” for the group’s Web site (cwfa.org), said new laws were necessary as monitors inside cars had gotten bigger (up to 17 inches, measured diagonally) and more visible from outside.

“It’s pretty incredible to have to write laws for people who lack the common sense and civility to think it’s O.K. to play such DVD’s in full view of other people, and especially children,” Ms. LaRue said.

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Speaking of Lexmark… [1:46 pm]

There’s this article from today’s NYTime special Car section on a related issue that could easily end up in the same set of DMCA-related problems: Small Repair Shops Say Carmakers Won’t Share [pdf]

A group of mom and pop repair shops across the country is arguing that such scenes are happening too often in the last few years, jeopardizing their bottom line and sometimes even their survival. They contend that auto manufacturers are deliberately withholding information or charging high prices for repair data that used to be readily available at a reasonable cost.

Some stand-alone mechanic shops — which number more than 256,000 nationwide and make an estimated 75 percent of the country’s vehicle repairs — are pushing Congress to pass a law, called the Motor Vehicle Owners’ Right to Repair Act, to guarantee access to the technical and training data and specialized tools that are required for the shops to make repairs.

Organized by the Coalition for Auto Repair Equality, which represents repair shops and auto parts retailers and franchisees, a group testified at a Congressional hearing last month that manufacturers hold back information that consumers have the right to know about once they have bought a vehicle.

The Alliance of Auto Manufacturers, a trade association of nine car and light-truck manufacturers, including Ford, General Motors and Toyota, denies that it is doing so, and contends that the bill would require relinquishing proprietary information and cut into revenues that are necessary to pay for the more than $20 billion auto manufacturers spend yearly on research and design.

The car companies also say that disclosing such trade secrets could enable modifications of crucial vehicle operating systems, including emissions and safety. This, in turn, could create issues surrounding the validity of a warranty, and perhaps even the performance of such control systems, they maintain.

[...] But Sandy Bass-Cors, executive director for the Coalition for Auto Repair Equality, disputes the success rate, citing the coalition’s national survey of mechanic shops this summer that found that 59 percent of those questioned had problems getting information,r training or tools needed to repair or service cars.

The car industry, Ms. Bass-Cors said, is “trying to monopolize the repair industry.”

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Terry Fisher’s Continuing Dialog on ACS [9:18 am]

As noted earlier, Terry is discussing his alternative compensation scheme for digital distribution of music over at Lessig Blog. The posts so far:

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OT: More Weirdness For Photographers [8:57 am]

Snap photo first, answer questions later (see earlier Once Tripods Are Illegal….)

A physician who says he photographed an AT&T office as part of a research project to develop assistive technologies for the blind is now being targeted for questioning by the FBI.

Stefanos Pantagis, a geriatric specialist at the Hackensack University Medical Center in New Jersey, said he took the photos while driving in Manhattan on Sept. 4 and was surprised to learn Monday that counterterrorism agents wanted to interview him about them.

“My brother called me, hysterical, saying, ‘The FBI has been looking for you,’” said Pantagis, who had borrowed a family member’s car that day. “They researched who had been driving the car.”

Pantagis said he and a friend “were conducting eyetap research for the visually impaired. The idea was to develop a filming system for the visually impaired.”

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The Beastie Boys on Remixing [8:34 am]

The first of what should be several interesting article from the current “dead tree” Wired on digital content and music culture: The Remix Masters

Sampling litigation was rare back in 1989, so you guys got by without much trouble on Paul’s Boutique. But the album is still sold today - have you had to license all those samples retroactively?

YAUCH: Well, I think there’s a statute of limitations on that stuff. If 10 years have gone by or whatever it is and there hasn’t been a problem, then it’s not an issue.

HOROVITZ: At least that’s what we’re hoping. [Laughs.] You know, I’m pretty sure we were actually the first court case that used the word sampling in it. It was in a lawsuit involving a sample of Jimmy Castor’s “The Return of Leroy (Part One)” on our first album.

How is it different to make sample-based music in 2004?

DIAMOND: We can’t just go crazy and sample everything and anything like we did on Paul’s Boutique. It’s limiting in the sense that if we’re going to grab a two-bar section of something now, we’re going to have to think about how much we really need it. But then the flip side is that it pushes us to be creative. We have to look for stuff to sample that is maybe more low-profile. And take what we find and manipulate and recontextualize it in a way that makes it sound totally new. If we tweak it enough and make it our own, then it might not even be an issue.

How do you clear the samples?

DIAMOND: It’s very tedious. We have to sit there and basically break out every single component of every track that we do and make a list of the sources for everything. We go through every little blip of sound and decide what’s significant enough that we need to contact the owner. From there, it’s a whole bunch of lawyer craziness.

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New Hearing in Lexmark v. Static Control [8:30 am]

Lexmark Injunction Overturned

In a blow to printer company Lexmark International, a federal appeals court overturned an order Tuesday that barred a North Carolina company from making computer chips for ink cartridge replacements.

The ruling by a three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati ordered a new round of hearings in the case pitting Lexmark against Static Control Components, a privately held company based in Sanford, North Carolina.

Lexington, Kentucky-based Lexmark filed a lawsuit seeking to stop Static Control from competing for its remanufactured cartridge business. Lexmark accused Static Control of violating copyright law along with the Digital Millennium Copyright Act.

U.S. District Judge Karl Forester issued a preliminary injunction in March blocking Static Control from selling computer chips that match remanufactured toner cartridges for Lexmark printers.

Jason Schultz has all the vital bits from the opinion (including a link to it) over at CopyFight: Sixth Circuit reverses Lexmark DMCA Ruling, Lexmark ruling: Chock Full O’ Nuggets and More good Lexmark quotes.

CNet: Ruling on refilled printer cartridges touches DMCA

Later: Donna’s got links to most of the commenters; sadly, I still haven’t even had time to finish reading the opinion. Ed Felten’s post: Pro-Competition Ruling in Lexmark Case

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OT: Don’t Expect Bush v. Kerry This Time Around [8:22 am]

In Supreme Silence - Why the Supremes will not decide this year’s presidential election, Dahlia Lithwick makes some excellent and cogent points, with some great links, too. [pdf]

But don’t be so quick to assume that the high court would hear another election appeal. There’s little doubt in my mind that each of the 20,000 lawyers poised to jet around the country next week like a small air force of flying monkeys in ties expects to take their appeals all the way to the Supreme Court. But there’s also little doubt in my mind that the court will refuse to take them. Let’s recall, first of all, that the court has absolute and ultimate control over its own docket. But more profoundly, let’s recall that the court has absolute and ultimate control over its own reputation and legitimacy. No one was more shocked than the justices by the angry blowback from Bush v. Gore. And no one is less interested than the justices in replaying that psychodrama again this year, and every four years hereafter.

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More FCC-Related News [8:01 am]

Xeni Jardin has a bunch of links relating to the Howard Stern-Michael Powell “discussion” that took place on the Bay Area radio station KGO. The transcript is here.

Powell: Just two quick things. I don’t think we’ve been inconsistent. He says we do Janet Jackson but we let people say the F word. One of the most controversial decisions this year was we let Bono say the F word … I think we have been consisten[t] across that line. Second what the order found on Viacom: Viacom is a big media conglomerate and it includes MTV and MTV produced the programming and it was our conclusion after investigating that it was not just a sort of passive…

Stern: Michael I know I’m going to get cut off. I absolutely don’t take this personally. I don’t think you personally hate me. I think that what you are doing is dangerous to free speech. I don’t think just against me. I think things have gotten way out of control. I am not personally vindictive. I’m happy to be going to satellite radio. I welcome the move. I think it’s a sad day, though, when the markeplace no longer determines what is indecent. I think that there’s tremendous hypocrisy that you allow late at night with teenagers calling into Love Line talking about blatant sexual acts. There’s a complete double standard here when it comes to me and morning radio when it’s probably the only time of day that parents listen with their children, 6 to 10 in the morning. I think there’s a lot of inconsistencies and I’m going to ask you while you’re still in office and, who knows, Bush’ll probably win and you’ll be there a while….

CNN’s article: Stern challenges FCC chairman on air

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Pushing The Envelope [7:50 am]

Perhaps a little too far? While, as an amateur photographer making the transition to digital, I can see the need for something like this, I’m wondering just how much demand there will be — but that’s what they probably said to Sony’s Morita when he floated the Walkman concept, too.

Interestingly, I can easily see how this would have real corporate, rather than personal, uses — think about a salesman carrying a multimedia presentation. Now, all he needs is one of these things instead of lugging a laptop around. Should be quite interesting to see if this ends up being another Apple homerun. Apple unveils photo-display iPod

Apple has unveiled an iPod with a photo display function aimed at maintaining the company’s lead in the market for digital music players.

The new iPod comes in two versions, including a 60-gigabyte model capable of storing 25,000 colour photographs, which retails at $599 (£335) in the US.

The device is intended to meet demand for convenient ways of storing pictures in the age of digital photography.

Apple’s announcement: The iPod Photo; NYTimes’ Newest iPod From Apple Holds Photos and Music. Paul Boutin over at Slate thinks that there’s another threat that Apple should be worrying about: XM vs. the IPod

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A “Dissent in Part” of the Cingular Purchase of AT&T Wireless [7:43 am]

When Dinosaur telcos ruled the Earth

The Federal Communications Commission’s Michael Copps, ruminating on the merger of Cingular and AT&T Wireless, seems to have felt this icy chill too. The FCC gave its formal blessing to the union this week, resulting in the creation of the largest mobile phone network in the US, and one of the most powerful in the world.

In a typically thoughtful, but unusually pessimistic warning that goes far beyond today’s concerns, the former Clinton administration trade official points out that for the first time Bell companies will control over the half of the wireless market. Earlier this month Copps warned that the internet was dying, under pressure from vested interests who want a closed network, but his words were almost completely unreported. Now, he points out, both Cingular and the erstwhile No.1 carrier Verizon were formed from amalgamations of local Baby Bells. SBC is owned by SBC and Bell South AT&T Wireless, meanwhile, has Ma Bell in the DNA: it’s a spin off from the mothership itself.

“The chance that wireless will compete effectively with wireless incumbents is diminished,” he warns. Regulators call this “intermodal” competition, and it’s a reality, with mobile operators in more saturated markets, such as Europe, vowing to make the landline redundant. But Copps thinks this less likely to happen now, and cites the majority FCC judgement in his support.

Copp’s statement can be accessed online as a Word document or as a PDF. From the opening paragraph:

I support the Order as it relates to intramodal competition within the wireless market. With the divestitures achieved in this order, I believe that an acceptable level of competition will continue to characterize the wireless market. I must dissent to those parts of the Order relating to the intermodal aspects of the merger, however, because of the increased potential for discrimination by the merged entities’ wireline parent companies and also because I find the lack of rigorous competitive analysis troubling.

Note: Nothing about Copp’s dissent in the NYTimes’ piece - With F.C.C. Consent, Cingular Buys AT&T Wireless. The Washington Post at least quotes Consumers Union’s Gene Kimmelman in Cellular Merger Approved

“They’re allowing Cingular to control so much of the spectrum that it could only sustain two or three major players around the country,” said Gene Kimmelman, director of Consumers Union in Washington. “But what’s of greater concern is that two of the three biggest wireless firms are virtual monopolies in local telephone companies,” and that concentrates too much market power, he said. “This is an enormous retreat from past antitrust policies that promoted competition in the wireless market.”

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Weird Political News [7:36 am]

This is a spooky indication of too many things - can anyone out there confirm this for me? (See BoingBoing) Bush website adopts isolationist stance

International access to the official re-election website of Us President George W. Bush (www.georgewbush.com) has been blocked. Surfers from outside the US trying to reach the site receive an “access denied” message.

Netcraft reports that the site, hosted at SmarTech Corporation, began using the Akamai content distribution network to manage traffic on 21 October. The move followed a six hour outage on 19 October, which also the official site of the Republican National Committee. Neither organisation gave reasons for the outage.

Since Monday morning (25 October) GeorgeWBush.com began rejecting web requests from outside the United States, Netcraft reports. Those outside America can only reach the site through US based proxies (such as proxify.com) but not through European proxies, Reg readers report.

As a security measure this doesn’t make an awful lot of sense but the move does mean soldiers and other Americans abroad can’t reach the re-election website. A number of reports (such as this by news agency AFP) suggest the site was inaccessible yesterday because of an attack by hackers but this would seem to be a misinterpretation of the site’s newly-instigated isolationist policy. GeorgeWBush.com is built on Microsoft’s Internet Information Server web server platform.

The BBC News article, Bush website blocked outside US, cites the BoingBoing article. Later: Bush Web Site Bars Overseas Visitors

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Disposable DVDs Getting Another Push [7:13 am]

Entrepreneur thinks disposable DVD technology a keeper [pdf]

The 34-year-old multimillionaire [Jeffrey Arnold] recently purchased the patents for the disposable DVD and the Los Angeles-based company, Flexplay, that manufactures them. Now, in a gambit to overcome consumer resistance to the new technology, Arnold is turning to the kind of mass-marketing approach that he has already used successfully within the music and video-game industries through a company he launched last year called LidRock.

[...] The strategy flies in the face of the Hollywood business model, which gives each medium — theatrical, television, and DVD — its own window in which to release a film and maximize profits. But the Convex Group is trying to market the 4-year-old technology more than the film.

Arnold says he isn’t trying to thumb his nose at the studios — in fact, they are exactly the ones he hopes to persuade to supply the content for the technology. He says he intends to prove that the disposable DVD won’t cut into the lucrative sales of regular DVDs and may in fact offer studios a new revenue stream.

Response to the technology has been mixed, mostly because consumers remain highly suspect of discs that can be used for only 48 hours after opening. And some wonder whether consumers will want to buy something that’s disposable when they can spend a few more dollars for the real thing.

But Arnold says he’s convinced there’s money to be made by targeting the new technology at the video rental market, which has been flat for the past six years as DVD sales have boomed. There are consumers, he says, who want a movie but don’t want the hassle of returns or late fees or the $20 price tag.

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Culture and Copyright [7:07 am]

In today’s Globe, Getting ‘Lost’ [pdf] discusses the “mythology” TV show and its grasp upon the “collective unconsciousness” of a subset of the viewing public. And yet, as a piece of that culture, there’s a problem along its pathway to a larger role:

It would be quite an exaggeration to suggest that mythology shows, which include “Angel” and “Farscape,” are as enduring as the myths we’ve inherited from the ancients. In thousands of years, Sydney on “Alias” will be electronic dust, while the goddess Diana may still be alive in our cultural memory — the name of a moon shuttle company, perhaps. Television is a medium of transience — less so, as it stretches its shelf life on cable, DVD, and Internet fan sites, but still fleeting. And while myths are told and retold and kept alive by interpreters, TV’s mythology shows are told only once. Attempts to duplicate them and expound upon them can lead to copyright problems. Even fanfic is discouraged by studios; disclaimers must appear on stories, and no profits may be collected for them. But still these shows have ancient archetypes at their root, as they update and perpetuate them.

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