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December 10, 2004

Petition for Cert in Grokster Approved [3:06 pm]

High Court to Hear File - Sharing Dispute [pdf]

The Supreme Court agreed Friday to consider whether two Internet file-sharing services may be held responsible for their customers’ online swapping of copyrighted songs and movies.

Justices will review a lower ruling in favor of Grokster Ltd. and StreamCast Networks Inc., which came as a blow to recording companies and movie studios seeking to stop the illegal distribution of their works.

Also CNet’s Supreme Court to hear P2P case; Washington Post’s also got an AP regurgitation: Supreme Court to Look at File Sharing; ditto Wired News’ File Sharing Goes to High Court

Later: NYTimes’ Justices to Hear Case on Sharing of Music Files; WashPost’s High Court To Weigh File Sharing [pdf]; Slashdot: High Court Agrees to Hear File-Sharing Dispute; Xeni Jardin on NPR: High Court Takes on File Sharing

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Cleanse Your “Palate” [11:54 am]

As a counterpoint to Creepy Distortion, see this paper: Stealing the Goose: Copyright and Learning [pdf] [via Stephen's Web] The abstract is not too controversial, although there are some hints:

Abstract

The Internet is the world’s largest knowledge common and the information source of first resort. Much of this information is open and freely available. However, there are organizations and companies today that are trying to close off the Internet commons and make it proprietary. These are the “copyright controllers.” The preservation of the commons and expanding access to digital content and applications are very important for distance educators. The educational exemptions for “fair use” in the United States and “fair dealing” in the Commonwealth countries are integral to any understanding of copyright, which was instituted for the dissemination of knowledge, and not, as is commonly believed, to protect the rights of the copyright owners. Copyright law was expressly introduced to limit their rights. Yet, these controllers are successfully turning a “copy” right into a property right. The traditional rights of learning institutions are being taken away. The balance for researchers should be restored. Research and learning must be allowed the broad interpretation that was intended in the original laws.

But, there are some strong positions taken — for example:

Unfortunately, for the proponents of IP, historically, copyright did not emerge as a property right. Copyright was explicitly instituted to “encourage learning” in Great Britain (House of Commons, 1709) and developed from this concept to “promote the progress of science and the useful arts” in the U.S. Constitution U.S. Constitutional Convention, 1787). Copyright was not enacted for the purpose of protecting the rights of the author. Such an interpretation has been identified by Jaszi (2001) as the recasting of copyright as “para-copyright” or “pseudo-copyright.” Barlow (1996) argues that old laws like copyright cannot be made to work by “grotesque expansion or by force” (p. 10). In much of Europe, countries use the Napoleonic code and base their copyright laws on “le droit d’auteur” (author’s right), but this is alien to the British common law tradition on which Commonwealth and U.S. laws are based.

Yes, but…. Anyway, a worthwhile counterpoint and an interesting take from the educational perspective — at least it gives you something to think about.

Later: Companion piece - Copyright Reform is Not a Spectator Sport [pdf]

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INDICARE Report: DRM & Consumer Acceptability [9:37 am]

CoCo points to an INDICARE report, Digital Rights Management and Consumer Acceptability, that strives to look at the issues arising out of the use of DRM technologies from the perspectives of consumers in a European context.

The INDICARE project – the Informed Dialogue about Consumer Acceptability of DRM Solutions in Europe – has been set up to raise awareness about consumer and user issues of Digital Rights Management (DRM) solutions. One of the main goals of the INDICARE project is to contribute to the consensus-building among multiple players with heterogeneous interests in the digital environment. To promote this process and to contribute to the creation of a common level of understanding is the aim of the present report. It provides an overview of consumer concerns and expectations regarding DRMs, and discusses the findings from a social, legal, technical and business perspective.

A general overview of the existing EC initiatives shows that questions of consumer acceptability of DRM have only recently begun to draw wider attention. A review of the relevant statements, studies and reports confirms that awareness of consumer concerns is still at a low level. Five major categories of concerns have been distinguished so far: (1) fair conditions of use and access to digital content, (2) privacy, (3) interoperability, (4) transparency and (5) various aspects of consumer friendliness. From the legal point of view, many of the identified issues go beyond the scope of copyright law, i.e. the field of law where DRM was traditionally discussed. Often they are a matter of general or sector-specific consumer protection law. Furthermore, it is still unclear to what extent technology and an appropriate design of technical solutions can provide an answer to some of the concerns of consumers. One goal of the technical chapter was exactly to highlight some of these technical possibilities. Finally, it is shown that consumer acceptability of DRM is important for the economic success of different business models based on DRM. Fair and responsive DRM design can be a profitable strategy, however DRM-free alternatives do exist too.

The report pinpoints some areas where more discussion and a higher

level of knowledge and experience is needed in the short term: [...]

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Creepy Distortion [9:23 am]

As Larrry says, well, they spelled my name right — but otherwise, Neil Turkewitz’s article, Copyright, Fair Use and the Public Interest, largely betrays a failure to appreciate the debate — or, more likely, a desire to debase and confuse the discussion. For example, he starts with an offer to “unmask” a false premise of entirely his own making — and attributes it to Larry and the EFF, rather than acknowledging that it’s merely his own (rather lame) straw man:

Let’s begin by unmasking the false premise underlying the basic anti-copyright position—that is, that the basic strain on the copyright system is to achieve a balance between the “public” on the one hand, and “private copyright owners” on the other. In this formulation, the “public’s” interest is exclusively defined as the ability to get copyrighted materials as cheaply as possible, with free obviously being the best (since it is the cheapest) option.

[...] Folks like Larry Lessig and EFF would have you believe, because it suits their analysis, that copyright protection and the public interest are diametrically opposed. This is merely a rhetorical device, and is a complete fallacy.

Later, we get this bit of historical revisionism:

It is essential that policy makers keep in mind that the copyright system replaced private patronage as the mechanism for permitting creators to live through their craft. By permitting creative genius to be fuelled by market forces, we unleash the cultural power and potential of the public at large, freeing creative impulses from the tyranny of government control and making creative works accessible to the public at large.

Then, the executive vice president of the RIAA decides to get self-righteous about artistic creativity, and then returns to misrepresenting the nature of the debate. Worse, while in the above paragraph he cites that a benefit of the copyright system that it liberates the public at large to create, below he makes it quite clear that creating is something that only “the copyright community” should be allowed to do:

Critics of the copyright system such as Larry Lessig and EFF use emotive rhetoric in an attempt to demonize copyright—or more particularly copyright owners, and to suggest that “copyright” protection is somehow a “special interest.” They say that they care about “creativity,” and that fair use is critical to the interests of society. Copyright owners agree, but unlike Lessig and the EFF, not only do we care about creativity as an abstract concept, but we actually care about creators and preserving the creative process. We care more fundamentally about fair use because we recognize that the creative process indeed is an evolutionary one, and that present creators draw upon past expression for inspiration. The copyright community relies upon the idea/ expression dichotomy, and the concept of fair use. As a consequence, copyright owners have a greater interest in preserving limitations to copyright protection to permit new forms of expression than do general members of the public. Creators need to stand on the shoulders of giants, right? For Lessig and his allies, fair use is little more than a useful slogan.

A sad piece of work, and an ugly smear. Ugh.

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