Reconciling Lexmark and Corley

Zagar’s Brain suggests it can’t be done in his post, Universal City Studios, Inc. v. Corley

This is the exact quote from the [Lexmark] ruling:

We disagree. It is not Lexmark’s authentication sequence that “controls access” to the Printer Engine Program. See 17 U.S.C. § 1201(a)(2). It is the purchase of a Lexmark printer that allows “access” to the program. Anyone who buys a Lexmark printer may read the literal code of the Printer Engine Program directly from the printer memory, with or without the benefit of the authentication sequence, and the data from the program may be translated into readable source code after which copies may be freely distributed. Maggs Hr g Test., JA 928. No security device, in other words, protects access to the Printer Engine Program Code and no security device accordingly must be circumvented to obtain access to that program code.

This is how I would paraphrase the above paragraph for the Corley DeCSS case:

We disagree. It is not DVD CCA’s “css data”, or even the purchase of a licensed DVD player that authorizes access to the protected work. It is the legitimate purchase of the DVD product itself that authorizes “access” to the protected work. Anyone who buys a DVD reader/player may read the literal content of the DVD directly from the media itself, with or without the benefit of the “css data”, and copies of that literal content (encrypted binary data) may be freely distributed. No security device, in other words, protects access to the literal content of the DVD and no security device accordingly must be circumvented to obtain access to it.

Reminder: Cable Is *NOT* A Common Carrier in the US, Either

BoingBoing describes exactly why, yet again, I won’t do cable — it’s DSL for “high speed” internet in the Field housedhold: Shaw is censoring Internet feeds and lying about it, based on this DSL Reports thread

It might have been a fake, but not long after, DSL Reports got a letter from Shaw’s lawyers telling them that this was confidential info from a Shaw employee and that they’d be sued if they didn’t take it offline, so it looks like its true (says DSL Reports, “Needless to say, we’ve never bent over for an ISP upset at bad publicity, or forked over anyones identity, and we’re not about to start.”)

Here’s the facts, then:

  1. Shaw is indiscriminately censoring its customers’ Internet feeds. It’s not blocking infringing files (hell, Shaw can’t even know for certain what files are and aren’t infringing for each customer), it’s blocking protocols, applications used to transmit and receive tens, hundreds of millions of public-domain, copylefted and non-copyrightable works.

  2. Shaw is lying about censoring its customers’ Internet feeds.

  3. Shaw is threatening to sue people who tell the world about its lies.

9th Circuit Upholds Beastie’s Sampling

U.S. Court Upholds Beastie Boys’ Musical Sampling [pdf] [via Jurist’s Paper Chase] From the opinion:

This appeal raises the difficult and important issue of whether the incorporation of a short segment of a musical recording into a new musical recording, i.e., the practice of “sampling,” requires a license to use both the performance and the composition of the original recording. The particular sample in this case consists of a six-second, three-note segment of a performance of one of his own compositions by plaintiff, and accomplished jazz flutist, James W. Newton. The defendants, the performers who did the sampling, are the members of the musical group Beastie Boys. They obtained a license to sample the sound recording of Newton’s copyrighted performance, but they did not obtain a license to use Newton’s underlying composition, which is also copyrighted.

The district court granted summary judgment to the defendants. In a scholarly opinion, it held that no license to the underlying composition was required because, as a matter of law, the notes in question — C – D flat – C, over a held C note — lacked sufficient originality to merit copyright protection. Newton v. Diamond, 204 F. Supp. 2d 1244, 1256 (C.D. Cal. 2002). The district court also held that even if the sampled segment of the composition were original, Beastie Boys’ use of a brief segment of the sound recording of “Choir” was a de minimis use of the “Choir” composition and therefore was not actionable. Id. at 1259. We affirm on the ground that the use was de minimis.

Don’t miss the final page of the pdf, which shows the composition at issue in the dissent, which asserts:

The majority is correct that James Newton’s considerable skill adds many recognizable features to the performance sampled by Beastie Boys. Even after those features are “filtered out,” however, the composition, standing alone, is distinctive enough for a fact-finder reasonably to conclude that an average audience would recognize the appropriation of the sampled segment and that Beastie Boys’ use was therefore not de minimis.

See Kevin’s Circuits split on de minimis sampling?; CNN’s Court says Beastie Boys rule [pdf]

Provocative Article from the CJR

Blinded by Science [pdf] [via Slashdot]

The basic notion that journalists should go beyond mere “balance” in search of the actual truth hardly represents a novel insight. This magazine, along with its political Web site, Campaign Desk, has been part of a rising chorus against a prevalent but lazy form of journalism that makes no attempt to dig beneath competing claims. But for journalists raised on objectivity and tempered by accusations of bias, knowing that phony balance can create distortion is one thing and taking steps to fix the reporting is another.

Political reporting hardly presents the only challenge for journalists seeking to go beyond he said/she said accounts, or even the most difficult one. Instead, that distinction may be reserved for media coverage of contested scientific issues, many of them with major policy ramifications, such as global climate change. After all, the journalistic norm of balance has no corollary in the world of science. On the contrary, scientific theories and interpretations survive or perish depending upon whether they’re published in highly competitive journals that practice strict quality control, whether the results upon which they’re based can be replicated by other scientists, and ultimately whether they win over scientific peers. When consensus builds, it is based on repeated testing and retesting of an idea.

Journalists face a number of pressures that can prevent them from accurately depicting competing scientific claims in terms of their credibility within the scientific community as a whole.

Consider the issues for technology & policy coverage.

NBER’s Server Is Fixed

So now I can read Piracy on the High C’s: Music Downloading, Sales Displacement, and Social Welfare in a Sample of College Students, cited earlier.

Recording industry revenue has fallen sharply in the last three years, and some — but not all — observers attribute this to file sharing. We collect new data on albums obtained via purchase and downloading, as well as the consumers’ valuations of these albums, among a sample of US college students in 2003. We provide new estimates of sales displacement induced by downloading using both OLS and an instrumental variables approach using access to broadband as a source of exogenous variation in downloading. Each album download reduces purchases by about 0.2 in our sample, although possibly much more. Our valuation data allow us to measure the effects of downloading on welfare as well as expenditure in a subsample of Penn undergraduates, and we find that downloading reduces their per capita expenditure (on hit albums released 1999-2003) from $126 to $100 but raises per capita consumer welfare by $70.

Note that there are no easy conclusions, but a wealth of interesting data and statistics in the paper.

Derating TiVo

From Wired, an interview with TiVo’s general counsel, Matthew Zinn: Has TiVo Forsaken Us?.

Sometime in the next few months, your machine will quietly download a patch that makes it respond to a new copy protection scheme from software maker Macrovision. The app puts restrictions on how long your DVR can save certain kinds of shows – so far, just pay-per-view and video-on-demand programs. It’s the first time your TiVo won’t let you watch whatever you want, whenever you want. We asked TiVo general counsel Matthew Zinn why he thinks Hollywood will settle for an inch when it can take a mile.

Apple DRM Stays Apple’s

France rules Apple’s DRM denial not anti-competition

A French retailers attempt to force Apple to license its DRM technology has failed.

The French government’s competition watchdog this week dismissed a complaint brought by VirginMega, which alleged Apple’s refusal to license FairPlay ran contrary to French anti-trust law.

The retailers complaint was ruled to be short on convincing evidence, the watchdog ruled. In any case, it said, Apple’s refusal to license FairPlay was on no way hampering the expansion of the digital music download market – growth indicated by the huge number of rivals popping up to compete with the iTunes Music Store.

Frank Rich Talks Sense on “Moral Values”

Sort of off-topic, sort of on-topic: On ‘Moral Values,’ It’s Blue in a Landslide

Everything about the election results – and about American culture itself – confirms an inescapable reality: John Kerry’s defeat notwithstanding, it’s blue America, not red, that is inexorably winning the culture war, and by a landslide. Kerry voters who have been flagellating themselves since Election Day with a vengeance worthy of “The Passion of the Christ” should wake up and smell the Chardonnay.

[…] The Democrats’ Ashton Kutcher is trumped by the Republicans’ Britney Spears. Excess and vulgarity, as always, enjoy a vast, bipartisan constituency, and in a democracy no political party will ever stamp them out.

If anyone is laughing all the way to the bank this election year, it must be the undisputed king of the red cultural elite, Rupert Murdoch. Fox News is a rising profit center within his News Corporation, and each red-state dollar that it makes can be plowed back into the rest of Fox’s very blue entertainment portfolio. The Murdoch cultural stable includes recent books like Jenna Jameson’s “How to Make Love Like a Porn Star” and the Vivid Girls’ “How to Have a XXX Sex Life,” which have both been synergistically, even joyously, promoted on Fox News by willing hosts like Rita Cosby and, needless to say, Mr. O’Reilly. There are “real fun parts and exciting parts,” said Ms. Cosby to Ms. Jameson on Fox News’s “Big Story Weekend,” an encounter broadcast on Saturday at 9 p.m., assuring its maximum exposure to unsupervised kids.

[…] Mr. Wittman echoes Thomas Frank, the author of “What’s the Matter With Kansas?,” by common consent the year’s most prescient political book. “Values,” Mr. Frank writes, “always take a backseat to the needs of money once the elections are won.” Under this perennial “trick,” as he calls it, Republican politicians promise to stop abortion and force the culture industry “to clean up its act” – until the votes are counted. Then they return to their higher priorities, like cutting capital gains and estate taxes. Mr. Murdoch and his fellow cultural barons – from Sumner Redstone, the Bush-endorsing C.E.O. of Viacom, to Richard Parsons, the Republican C.E.O. of Time Warner, to Jeffrey Immelt, the Bush-contributing C.E.O. of G.E. (NBC Universal) – are about to be rewarded not just with more tax breaks but also with deregulatory goodies increasing their power to market salacious entertainment. It’s they, not Susan Sarandon and Bruce Springsteen, who actually set the cultural agenda Gary Bauer and company say they despise.

But it’s not only the G.O.P.’s fealty to its financial backers that is predictive of how little cultural bang the “values” voters will get for their Bush-Cheney votes. At 78 percent, the nonvalues voters have far more votes than they do, and both parties will cater to that overwhelming majority’s blue tastes first and last. Their mandate is clear: The same poll that clocked “moral values” partisans at 22 percent of the electorate found that nearly three times as many Americans approve of some form of legal status for gay couples, whether civil unions (35 percent) or marriage (27 percent). Do the math and you’ll find that the poll also shows that for all the G.O.P.’s efforts to court Jews, the total number of Jewish Republican voters in 2004, while up from 2000, was still some 200,000 less than the number of gay Republican voters.

There’s A New Sheriff in Town

As we’ve already seen — the NYTimes profiles the new MPAA head, Dan Glickman: Valenti’s Successor, but Not His Clone

Mr. Glickman complains that there are not enough actual lobbyists working for the movie industry. “The heart of any trade association is its ability to interface with the government,” he said, noting that there are only about eight full-time lobbyists at the association.

And he is focused on defining a long-term strategy for the group, which many believe must prove its relevance in a new world of multinational, multimedia corporations for whom movies are only one area of concern.

“The overlying issue is piracy and how we fight it,” Mr. Glickman said, a day after announcing plans to sue people who illegally download movies off the Internet, a provocative way to begin his stewardship. “I still believe lawsuits are only one part of the strategy. Education and awareness and embracing new technologies is part of it. It’s important that we be seen embracing technology.”

“Windows Everywhere” — Not

A striking story of technological ideology overriding good engineering design sense: Wanted by the Police: A Good Interface

The fact that the officers and police dispatchers were not consulted about their preferences and requirements has come back to haunt the city. In July, the union asked for meetings to discuss the new system, saying it was having an adverse impact on officer safety. “Legally, they can’t just implement something like this unilaterally,” said John Tennant, general counsel for the union.

Even after some extensive tweaking, there still seem to be some fundamental bugs, Mr. Marcus said. “Much of the design was incorporating a Windows desktop graphical user interface with complex menu hierarchies, which just doesn’t make sense in a vehicle.”

Can you imagine operating a Windows desktop by touchscreen while driving a police cruiser? What were they thinking!?!?!