A funny article — it’s clear where the author stands on the questions at issue but his summation does point to what’s at stake, albeit with not quite complete evenhandedness: You Say Napster, I Say Grokster - What do you do when technology outpaces the law?

This issue is more complicated than simple theft, more nuanced than claims to airspace, and too urgent to simply allow the markets to sort it all out. This is a case in which the court needs to speak with its best voice, to the culture as well as to the lawyers, helping us strike the right balance between the wide-open cyberspace that we love for all its intellectual and entrepreneurial freedom and the elemental insight of the framers of the Constitution that those who wish to make a life from creativity and invention need and deserve the rule of law.

Home-Brew IPod Ad Opens Eyes (Of course, there’s also the question of just how many copyright infringements you can find in the ad.)

Stein said Masters’ ad is the first “straight-up” consumer-produced spot he’s aware of. Stein said he’s seen spec ads from agencies made to attract clients, and viral ads created by pros disguised to look grass-roots, but he has not seen a TV spot created by a fan.

Though his ad looks like it was done by a pro, Masters is a 36-year-old high school teacher from Orange County, California. He created the spot in his spare time. Working a couple of hours at a time, the ad took five months to make.

The iPod ad is part homage to Apple and the iPod, part portfolio piece, but mostly just practice, Masters said.

“I did it for fun,” he said. “I love motion graphics. I like creating visuals.”

[...] “It’s a sign that consumers want to have a role in promoting a product they love,” he said. “There’s a real trend toward consumer-generated media. People are creating news, they’re blogging. People will create marketing as well. This guy is a great example.”

Of course, you can also get paid to do this sort of thing as this article on BzzzAgent shows, although getting paid to astroturf viral marketing is not necessarily going to work: The Hidden (in Plain Sight) Persuaders [pdf]

The diehards keep at it: Software Patents Circumvent European Parliament (see EU Council Presidency Schedules Software Patent Directive for Adoption at Fishery Meeting)

ipod

My favorite: the RIAA version:

This iPod scans all MP3’s to determine whether they were puchased legitimately or not. If a file is determined to [have] been acquired illegally, an electric shock is administered to the used and its GPS tracking system helps the music industry locate and sue their ass off.

The PlayStation Portable has been released to hordes of anxious gamers (Japan jumps on Sony’s PSP; Sony launches portable games pad - Slashdot’s already got a PSP Battery Journal). But, according to this posting, it looks like the promise not to region encode these devices has not been honored:

That translates as “this unit can playback ‘UMD’ with region codes ‘2’ and ‘ALL.’”

I know you’re thinking “well that doesn’t mean anything because they could just be talking about movies,” but when you look at the packaging on Ridge Racers, it becomes clear that Ridge Racers uses Region “2” and not Region “ALL.”

We’re 98% sure of this, because there is still a small chance that the “2” on depicted on the Ridge Racers packaging and the “2” referred to on the PSP’s packaging are unrelated.

A very, very, small chance.

Related: Ed Felten’s discussion/musings on region coding:

• DVD-CCA Sues to Suppress Kaleidescape Product
• Inside the DVD Procedural Specifications
• Should the U.S. Allow Region Coding?

Later: Apparently this has been found not to be true

Even later: well, maybe not then, but maybe now - The DMCA wants to be violated

Britain Becoming “World’s Black Market Film Capital” - the original article is only available to subscribers to The Times - but it did lead me to FACT - Federation Against Copyright Theft, which seems to be the source of much of the statistics cited in the piece.

This BBC article summarizes some of the recent moves: Crackdown urged on film piracy — see earlier BBC Look at DVD Piracy

See also p2pnet’s coverage

An odd Newsweek piece on weblogs, MSNBC - The Alpha Bloggers [via RexBlog] [pdf], points to the HP work behind iRank, while describing the fact that some “A-listers” spend way more time on blogging than can possibly be good for them:

All of this takes time: [Robert] Scoble spends two hours daily writing his Weblog and three more hours reading hundreds of other blogs in search of fresh ideas and nifty software innovations. “I want to be the first guy to spot the smart new guy or a cool new Windows app,” he says. Even then you have no guarantee of blog fame.

Donna on Doc

Law Technology News - Et tu, Marvel? [via BoingBoing]

For kids reared on comic books, what could be more natural than tumbling into the backyard with their friends to make up new adventures for their favorite superheroes? How many comic book fans adorned their grade-school notebooks with hand-drawn images of the X-Men, the Incredible Hulk, and Captain America?

Apparently Marvel Enterprises, Inc., which owns the copyright and trademark rights in these classic superhero characters, thinks that these generations of American children were all infringers, little better than the downloaders targeted by the music and movie industries. At least that’s the impression left by a complaint filed Nov. 10 by Marvel against NCSoft Corporation and Cryptic Studios, the operators of an online game called “City of Heroes.”

[...] “City of Heroes” is, as described on the Web site, an “online world that’s home to an entire universe of heroes, where you and thousands of other players take on the roles of super powered heroes — in a stunning, 3D graphical world.” Players buy the “City of Heroes” software, create their own superhero characters from a palette of character types, powers and costumes, and then log into one of the various “City of Heroes” servers to join the action already in progress. The setting is “Paragon City,” where players seek out adventures with other players, develop the powers and abilities of their characters, and generally have enough fun to justify the monthly subscription fee of $14.

Enter Marvel and its league of lawyers. Marvel filed suit against the operators of “City of Heroes,” alleging copyright and trademark infringement, as well as a variety of state law claims. The chief claims are for contributory and vicarious copyright and trademark infringement. In other words, Marvel’s complaint is premised on the notion that NCSoft and Cryptic should be held responsible for the infringing activities of the players in the game. According to the complaint, the players are infringing Marvel’s copyrights and trademarks by creating characters that are recognizable copies of Marvel characters, including Wolverine and the Incredible Hulk.

Yes, you read that right — Marvel’s claim is based on the idea that private individuals who pretend to be Wolverine for fun in a video game are breaking the law.

Donna points to this unattractive prospect (and something to add to my ever-growing list of reasons NOT to buy cable TV): Is ‘Transitional Fair Use’ The Wave Of The Future? [pdf]

The term being used by the executive is”transitional fair use,” and the scenerio laid out goes roughly along these lines:

Viewers would be able to record an episode with their DVR, but there would be a time limit on how long it would be available for viewing. The executive was pushing for an expiration date that coincided with the premiere of the next episode. The consensus of the cable executived was that it needed to be between 2-4 weeks.

Regardless, the episode would then be unavailable until they are offered as part of a “video on demand” package. There would also be restrictions on recording episodes via VOD, with the Time Warner executive pushing for the ability to completely prevent recording the VOD presentations. Cable executives argue that this restriction prevents time-shifting and limits the revenue upside for both parties.

Donna’s followup: All Your Fair Use Are Belong to Us

This Slashdot article points to an argument that outlines the rationale for supporting open data formats

• Data longevity: this is an important point, which is often overlooked because it’s really only an issue in the (distant?) future. Microsoft has made it clear that it wants proprietary document formats, and inconsistent ones at that. This may work as long as Microsoft is around and developing software that supports files created by outdated products. Personally, I’m more comfortable with my OpenOffice.org documents in XML format because I know that in the worst case scenario, I can unzip the document structure and easily extract text from the XML components. This is technical, but what it comes down to is: my data is easily accessible in the future. It is also easy for third party developers to write tools for OpenOffice documents.

• Data interchange: this builds on the previous point. MS uses proprietary document formats and seems unwilling to allow seamless data flow between different software from independent vendors. It’s just not in their best interest. OpenOffice.org uses data formats designed to be easily interchanged (OASIS specification), and other projects are cooperating with the vision of open document interchange - e.g. Abiword, and KOffice.

• Now, given the rapid worldwide growth and popularity of open source software, including OpenOffice.org, do you really think you’re better off locking your documents into an inflexible, non-interchangeable format (MS Word version X)? I would argue that for anyone who values document longevity and interchange, it’s in their best interest to use software based on open data formats.

Important Rules for Phone Market Face F.C.C. Vote

The proceeding this week, like one last year over the same issues, has put the agency’s chairman, Michael K. Powell, in a difficult position between the Bell companies, which want greater deregulation, and the two Democratic members of the agency, who fear that Mr. Powell’s deregulatory stance could undermine competition in the phone markets.

Mr. Powell has been telling officials and lobbyists that he wants the commission to adopt the measure unanimously, particularly because he lost control of the agency in the earlier proceeding and found himself dissenting on significant aspects of the rules. But if he is forced to make some compromises sought by the Democrats to his broadly deregulatory principles, the Bells have said they will go back to the appeals court that has been overseeing the proceedings and complain that the agency has failed to carry out the instructions of the judges.

Bush Portrait Draws Fire Over Details, Not Subject

Artwork in an exhibition that drew thousands to the Chelsea Market for its opening last week was abruptly taken down over the weekend after the market’s managers complained about a portrait of President Bush fashioned from tiny images of chimpanzees, according to the show’s curator.

[...] The 23-year-old artist at the center of the controversy had been excited about the show. Mr. Savido said, “It’s a portrait-slash-landscape and the monkeys just seemed to make sense. I saw one woman gave it the finger but I think it wasn’t directed at the painting.”"I came to New York to express myself,” said Mr. Savido, 23, of Pittsburgh. “I would never have expected this censorship to happen here. I really feel powerless.”

[...] Most people at the market yesterday seemed indifferent to the empty Plexiglas display panels, but Rebecca Benhayon, 23, an actress, who was reading at a cafe table yesterday, expressed disappointment. “It’s the architecture and the art that make this place so interesting,” she said. “Taking the show down because someone didn’t like an image seems oppressive. It’s un-American.”

As far as most of the MIT community is concerned, Technology Review can just whither up and die. While there are lots of rumors about how much money it really took to build the Stata Center, the financial shenanigans behind this sad sellout of a magazine are probably even more Byzantine — and ugly. For example, in at least one of the last 5 years, the publisher of Technology Review was the highest paid MIT employee: M.I.T. Technology Review Adopts More Serious Tone

Now Technology Review, which was introduced in 1899 with such titillating headlines as “The Function of the Laboratory” and “Applied Science and the University,” is getting a makeover with help from a refugee of the latest tech bubble. Jason Pontin, the former editor of Red Herring before that magazine’s collapse in 2002, has remade The Review for more sober times.

“We want to levelly and intelligently analyze today’s and tomorrow’s technology,” Mr. Pontin said. “The magazine didn’t have the elegant seriousness we intend.”

“Elegant seriousness?!?!” If *that* was what they intended, they should have burned the last designer and publisher at the stake.

What happens when you build your business around strong-arming suppliers of creative work? You get sued by an offended customer who “expected” you to follow through. A look at what happens when a retailer leans into the punch — and although this appears to show how the system seems to be setup to promote censorship, what we’re really seeing is Wal-Mart suffering for a bad policy — and how we all might end up suffering for their hubris: Wal-Mart Sued Over Song Lyric

The group’s latest CD and DVD, “Anywhere But Home,” does not carry parental advisory labels alerting potential buyers to the obscenity. If they did, Wal-Mart would not carry them, according to the retailer’s policy.

But the lawsuit claimed Wal-Mart knew about the explicit lyrics in the song, “Thoughtless,” because it censored the word in a sample available on its Web site and in its stores.

The complaint, which was filed last week in Washington County Circuit Court, seeks an order requiring Wal-Mart to either censor or remove the music from its stores in Maryland. It also seeks damages of up to $74,500 for each of the thousands of people who bought the album at Wal-Mart stores in Maryland.

“I don’t want any other families to get this, expecting it to be clean. It needs to be removed from the shelves to prevent other children from hearing it,” a plaintiff, Trevin Skeens, of Brownsville, said.

Getting a Piece of a DVD Windfall

Dividing revenue from DVD’s is the contentious issue in negotiations between Hollywood producers, represented by the Alliance of Motion Picture and Television Producers, and the combined bargaining teams of the Screen Actors Guild and the American Federation of Radio and Television Artists. The two sides began meeting in Los Angeles last Monday to fashion a new three-year film and television contract.

[...] DVD’s are just the latest example of a technology that, like the videocassette recorder in the 1970’s, Hollywood studios greeted with skepticism - if not outright hostility - only to see the breakthrough add to their bottom lines.

[...] At issue in the negotiations is a 23-year-old formula that was designed when some major studios were not even in the home video distribution business. The formula held 80 percent of home video wholesale revenues for the distributor. (In the case of the major studios, their home video distribution arms are kept on a separate balance sheet.) Writers, directors and actors then receive a small portion - 1.8 to 5.4 percent - of the remaining 20 percent.

[...] One studio executive, who asked not to be identified, admitted that the current home residual formula is “arcane,” but said that the studios are willing to fight for it. “As long as actors don’t want to share in the downside risk, we’re not going to mortgage our future,” the executive said.

Pentagon Weighs Use of Deception in a Broad Arena

The Pentagon is engaged in bitter, high-level debate over how far it can and should go in managing or manipulating information to influence opinion abroad, senior Defense Department civilians and military officers say.

Such missions, if approved, could take the deceptive techniques endorsed for use on the battlefield to confuse an adversary and adopt them for covert propaganda campaigns aimed at neutral and even allied nations.

Critics of the proposals say such deceptive missions could shatter the Pentagon’s credibility, leaving the American public and a world audience skeptical of anything the Defense Department and military say - a repeat of the credibility gap that roiled America during the Vietnam War.

When dot-com patents go bad

While the sale of patents is nothing new, the Commerce One patent auction highlights a disturbing trend in our current patent system.

When faced with two choices — selling a company’s patents as part of its overall assets or selling the patents alone — the court (and the market) chose the latter. This means that in the eyes of the legal system and the marketplace, the Commerce One patents were more valuable to independent licensing firms as legal threats than they were to an actual company that makes a Web services product.

This is not what the patent system was intended to promote. The idea behind patents is that inventors and manufacturers of new products should have some protection against free riders in the marketplace that would otherwise copy their innovations. If competitors are able to simply copy the innovations of those first to market, few will have incentives to release their products to the public. In this instance, however, we see the opposite result.

Here, the patents at issue were less valuable to companies that actually produce Web services products than they were to firms that produce nothing but lawsuits and licensing threats. In other words, patents like these have become worth more as weapons than as protections for companies competing in the marketplace.

Later: Letters