May 25, 2005

Piracy in Pakistan [11:48 am]

Pirated Star Wars hits Pakistan

The pirated edition of the latest Star Wars episode has finally appeared in Pakistan, five days after it was released in cinemas worldwide.

A police crackdown - Pakistan is one of the top 10 producers of pirated DVDs - caused the delay.

Karachi retailers sold hundreds of copies in under an hour late Monday as many people had already booked copies.

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Judiciary Cmte Hearing in IP Piracy Today (updated) [10:43 am]

Piracy of Intellectual Property (it will be webcast) — with a “well balanced” list of presenters


  • Marybeth Peters; Register of Copyrights and Associate Librarian for Copyright Services; United States Copyright Office

  • Stephen M. Pinkos; Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the United States Patent and Trademark Office

  • James E. Mendenhall; Acting General Counsel; Office of the United States Trade Representative


  • Eric Smith; President; International Intellectual Property Alliance

  • Taylor Hackford; Board Member; Directors Guild of America

  • Robert W. Holleyman II; President and Chief Executive Officer; Business Software Alliance

Later: Is it possible that MaryBeth Peters’ testimony raises questions about the consequences of overheated rhetoric in the copyright debate? What do you think about this?

IV. Not all Piracy is Alike

Before I conclude, Mr. Chairman, I would like to distinguish the type of piracy we see in the United States and what we see in many other countries. To be sure, piracy anywhere is serious and cause for concern. I have testified extensively on the very real dangers of domestic piracy, particularly the massive amount of piracy that dominates many peer-to-peer networks. As you know, these issues have given rise to the type of vigorous public debate on which the United States prides itself. But all too often, what we see abroad bears no resemblance to college students downloading their favorite songs and movies.

Much of the foreign piracy about which we are speaking today is done by for-profit, criminal syndicates. Factories throughout China, southeast Asia, Russia, and elsewhere are churning out millions of copies of copyrighted works, sometimes before they are even released by the right holders. These operations are almost certainly involved in other criminal activities. Several industry reports in recent years suggest that dueling pirate operations have carried out mob-style “hits” against their criminal competitors. And, although the information is sketchy at best, there have been a series of rumored ties between pirating operations and terrorist organizations.

What is problematic is that some American commentators who are prone to hyperbole about what they see as an imbalance in the U.S. Copyright Act are providing arguments and rationalizations that foreign governments use to defend their failure to address this type of organized crime. [...]

Maybe she’s got her own opinion about which side is causing the problem, but one has to wonder about the consequences of rhetorical overreach by the copyright cabal in the P2P debate (e.g., “downloading==theft/criminal acts”) when it comes to negotiating with governments about real piracy.

Later yet: Ernest heard the whole thing, and relates far more extensive thoughts on all the testimony - Senate Judiciary IP Subcommitee Hearing On Int’l Copyright InfringementEmail This Entry

Later: Related ArsTechnica piece, Kids, when you buy a bootleg DVD, you may be supporting people who might sympathize with a terrorist group that hasn’t actually attacked us, via GoldSounds

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Action::Reaction [10:04 am]

Mötley Crüe Files Suit Against NBC for Banning It Because of an Expletive

In the latest twist in the broadening battle overdecency standards, the glam-metal band Mötley Crüe filed suit against NBC yesterday. The suit states that the network violated the group’s free-speech rights and weakened its sales by banning it after Vince Neil, the lead singer, used an expletive on the air in a Dec. 31 appearance on “The Tonight Show.”

[...] The band’s case appears somewhat quixotic, given that federal courts have afforded wide discretion to broadcasters to choose their own content. But it does illustrate the uneasiness of the relations between entertainers and the media companies that provide a platform for their fame in the cautious climate that has surrounded programmers since CBS’s Super Bowl fiasco last year, when Janet Jackson’s right breast was exposed during a half-time performance in front of tens of millions of viewers. Last year the F.C.C. proposed fines of nearly $8 million against broadcasters, primarily for risqué material, and executives have spoken openly of practicing self-censorship to avoid the agency’s crosshairs.

[...] “I think it’s a publicity stunt,” Mr. Tobin said of the Mötley Crüe suit. “It can’t get NBC’s help to boost its album through the airwaves. So it’s going to try and do it by dragging NBC into court.”

But the band’s lawyer, Skip Miller, argues that there are lower-court opinions supporting the notion that a private entity, like a television network, acting under government pressure, can be liable for damages for violating free-speech rights. Mr. Miller added that NBC’s action unfairly singled out Mötley Crüe because NBC had not announced similar bans on other performers who have uttered profanities on its airwaves, including the singer Bono of U2, or the singer John Mayer.

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Scarier than Lutefisk? [8:57 am]

CNet offers up a distressing interpretation of a Minnesota appellate court ruling: Minnesota court takes dim view of encryption

A Minnesota appeals court has ruled that the presence of encryption software on a computer may be viewed as evidence of criminal intent.

Is this really what the opinion says? - from Minnesota v. Levie


I. Relevance

Appellant first argues that he is entitled to a new trial because the district court erred in admitting irrelevant evidence of his internet usage and the existence of an encryption program on his computer. Rulings involving the relevancy of evidence are generally left to the sound discretion of the district court. State v. Swain, 269 N.W.2d 707, 714 (Minn. 1978). And rulings on relevancy will only be reversed when that discretion has been clearly abused. Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994). “The party claiming error has the burden of showing both the error and the prejudice.” State v. Horning, 535 N.W.2d 296, 298 (Minn. 1995).

Appellant argues that his “internet use had nothing to do with the issues in this case;” “there was no evidence that there was anything encrypted on the computer;” and that he “was prejudiced because the court specifically used this evidence in its findings of fact and in reaching its verdict.” We are not persuaded by appellant’s arguments. The record shows that appellant took a large number of pictures of S.M. with a digital camera, and that he would upload those pictures onto his computer soon after taking them. We find that evidence of appellant’s internet use and the existence of an encryption program on his computer was at least somewhat relevant to the state’s case against him. See Minn. R. Evid. 401.

I would say that this is a somewhat less dire ruling than CNet would suggest. Yes, it’s a little troubling, but no more so (IMHO, and IANAL) that introducing the fact that a plaintiff owns any other tool — i.e., there’s a little overreaction here.

Slashdot: PGP Ruled as Relevant For Criminal Case

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Shocking! [7:57 am]

Publishers balk at Google book copy plan/a>

spite initial awe for Google’s project to digitize and make library books searchable online, some publishers are now criticizing the plan, calling it a “broad-sweeping violation of the Copyright Act.”

The Association of American University Presses, a 125-member nonprofit of scholarly publishers, made public this week a six-page letter sent to Google, whose Google Print for Libraries launched in December with the support of Harvard, Stanford and Michigan university libraries.

In the letter, the association posed a series of detailed questions to Google about the project and its scope, given that the company is making a copy of books still in copyright without explicit permission from each publisher, creating the potential for financial harm to its members.

“The fact is Google Print for Libraries appears to be built on a gigantic fair use claim, which we think is questionable at best,” said Peter Givler, executive director of the Association of American University Presses. “If the fair use is not valid, it could be a gigantic copyright violation. There are fundamental questions about copyright that need to be answered.”

Also University Presses Challenge Google

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May 24, 2005

Another Blow from the DC Circuit [6:07 pm]

In DC Circuit Rejects Challenge to Congress Removing Works from the Public Domain, Ernest Miller points to Luck’s Music Library v. Gonzalez

WILLIAMS, Senior Circuit Judge: Plaintiffs challenge the constitutionality of § 514 of the Uruguay Round Agreements Act (”URAA”), Pub. L. No. 103-465, 108 Stat. 4809, 4976 (1994), codified at 17 U.S.C. §§ 104A, 109, which implements Article 18 of the Berne Convention for the Protection of Literary and Artistic Works. The section establishes copyright in various kinds of works that had previously entered the public domain, and plaintiffs argue that any such provision violates the Copyright and Patent Clause of the U.S. Constitution. U.S. Const. art. I, § 8, cl. 8. Finding no such bar in the Constitution, the district court dismissed plaintiffs’ claims. (A district court in Colorado has recently agreed. Golan v. Gonzales, No. 01-B-1854, 2005 WL 914754 (D. Colo. Apr. 20, 2005).) We review the district court’s order de novo, Barr v. Clinton, 370 F.3d 1196, 1201 (D.C. Cir. 2004), and affirm.

Later: Scrivener’s Error comments

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Incentives and Behavioral Change [3:14 pm]

Scotland Adds iPods to Menu

Whatever romantic notions we American descendants of the clans imagine, our lions of the north lately are more often thought of as connoisseurs of the deep-fried Mars bar (and deep-fried haggis, pizza and Scotch eggs). The region’s own outgoing chief medical officer said that it could take an entire generation to dispel Scotland’s reputation of being a land of binge drinkers, heavy smokers and heart-disease sufferers.

Enter Apple.

The Scotsman newspaper last week reported that Glasgow’s school system is offering rewards — the iPod chief among them — to bribe their secondary school students into eating healthier foods [...]

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What’s The Difference Between A Utility and a Virus? [1:24 pm]

Microsoft wants Congress to set the definition — the “benefits” of pursuing legislative responses to a problem: Microsoft seeks protection from spyware firms

Microsoft wants the Senate to rewrite anti-spyware legislation in order to protect companies that provide spyware removal utilities.

The software maker warned Tuesday that two bills approved by the House of Representatives this week fail to prevent “frivolous lawsuits” filed by adware and spyware companies that are upset when their code is removed.

H.R.29 and H.R.744

Techdirt: Microsoft Wants Spyware Laws To Say Spyware Name Is In The Eye Of The User

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DRM In Practice: A Look at Office 12 [1:19 pm]

While HIPAA, etc. are cited as the reason that Office 12 will come with DRM tools, there’s also the question of who might elect NOT to employ software that can “bottle up” one’s work: Facing ‘new world of work,’ Microsoft locks up Office | CNET

“We know that we’ve got an opportunity to provide IT the types of controls that they need for this concept that we call the ‘million dollar document,’ which is one of those documents or spreadsheets that (contain) a million dollars or more worth of IP (intellectual property),” Chris Capossela, a corporate vice president in Microsoft’s Information Worker unit, said during a meeting at a recent company-sponsored CEO summit here. “Those have got be something that IT could control. But we still want people using Excel to be able to build them.”

With the next version of Office, Microsoft plans to let businesses set rules, enforced by server-based software, to determine how those documents are handled. The shift is just one of several trends the software giant is labeling part of a “new world of work” that its next generation Office software will address. But at the same time that Microsoft is saying it understands the shifting tides, it’s trying to make sure it doesn’t miss any undercurrents.

[...] Gartner’s Austin tried to make the case that, despite the recent shift to increased regulation, the ultimate trend in technology will be toward the democratization of information with less central control. However, that idea was shot down by both Greifeld and Ozzie.

Ozzie said that if a technology is to be successful, it needs to meet both the needs of the individuals using the product as well as the company’s overall goals. Many a company, he said, has deployed a sales force automation tool that it thought would have great benefits, only to find that no one used it because it was too difficult.

Ernest’s take - MS to Lock Up Office Documents, Lock In Customers (Ernest Miller)

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An Industry In Transition [12:12 pm]

Album delays hit profits at EMI

The world’s third largest music firm, EMI, has suffered a 13% fall in profits after delays to two key albums from revenue-drivers Coldplay and Gorillaz.

[...] [D]igital sales rocketed to £49.7m from £15.1m a year earlier.

Downloaded digital sales now account for 2.5% of group revenues, helping EMI recover from years of online piracy.

The music industry is counting on digital music sales downloaded from websites such as iTunes and Napster to drive profits growth, and is clamping down on illicit file-sharers by taking them to court.

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Effective Use of Our Tax Dollars [9:59 am]

Never too young for a copyright lesson

Think schools are just scaring kids about drugs, sex and poor study habits these days? Now you can put illegal file trading on the list.

Sixth-graders in American Fork, Utah, will start their journey to middle school on Tuesday with a warning from the director of the U.S. Patent and Trademark Office about the ills of illegally downloading music, movies and games from the Web.

Director Jon Dudas is scheduled to deliver this year’s commencement speech at Legacy Elementary School, situated in the suburbs south of Salt Lake City.

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Missed This: HR.2408 [9:12 am]

Zoe Lofgren strikes:: HR.2408Bill Summary & Status


Title: To amend title 17, United States Code, to allow abandoned copyrighted works to enter the public domain after 50 years.

Sec. 1

[...] (4) Current law continues to grant copyright protection to works published as early as 1923. See 17 U.S.C. 304. Yet the vast majority of older works are no longer commercially available. One study indicates that only 2 percent of works between 55 and 75 years old continue to retain commercial value. Eldred v. Ashcroft, 123 S. Ct. 769, 804 (2003) (Breyer, J., dissenting). Nevertheless, under current law, these abandoned works will not enter the public domain for many years. This prevents commercial and noncommercial entities from building upon, cultivating, and preserving abandoned works. Indeed, while older works are less likely to retain commercial value, they are more likely to `prove useful to the historian, artist, or teacher.’ Eldred v. Ashcroft, 123 S. Ct. 769, 805 (2003) (Breyer, J., dissenting).

(5) Thus, the existing copyright system functions contrary to the intent of the Framers of the Constitution in adopting the copyright clause and the intent of Congress in enacting the Copyright Act. Neither is intended to deprive the public of works when there is no commercial or copyright purpose behind their continued protection. It is, therefore, necessary to establish a mechanism by which abandoned American copyrights can enter the public domain.

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A Look At The Competing Music eTailing Options [7:48 am]

Music Subscription Services Reach for an Edge

Napster Inc. should dump its “Do the Math” ad campaign before it gets embarrassing. By any calculation, its all-you-can-download Napster To Go service can’t compete with the subscription plans just launched by RealNetworks Inc. and Yahoo Inc.

These new offerings remedy the glaring flaw of Napster To Go — the way it seems to serve the record labels’ interests a little too well. Napster To Go’s $14.95 monthly fee permits subscribers to collect all the music they want and listen to it on some Windows Media-compatible digital music players. But if they stop paying, the music stops playing — and getting a permanent copy that can be burned to CD requires purchasing it anew at the full list price of 99 cents.

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Exposure, Any Way They Can [7:41 am]

Back to patronage music? Recall, after all, that court composers were brought in to enhance the “brand” of the patron. Musicians Market Brands to Sell Their Latest Music

Well-known bands and singers, along with their labels, are teaming with major advertisers and agencies for promotions that seek to sell brand-name products as well as CD’s or downloads. The marketers benefit from the star power of artists ranging from the pop singer Gwen Stefani to the hip-hop group Black Eyed Peas to the crooner Michael Bublé.

In turn, the record labels, with dwindling budgets to promote individual releases in an increasingly crowded market, benefit from the multimillion-dollar budgets the advertisers typically put behind the campaigns.

[...] The deals represent more sophisticated versions of traditional tactics that have brought together music acts and marketers for decades. For instance, in the 1960’s Coca-Cola had radio commercials using artists like Ray Charles, Marvin Gaye and Tammi Terrell, Aretha Franklin and the Supremes.

The major difference between now and then is timing. Previously, the artists may or may not have released new singles or albums when they made commercials. Today, the campaigns are timed to coincide with the musicians’ latest releases to try to capitalize on their time in the limelight peddling their tunes.

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Will The Weblog Set China “Free”? [7:38 am]

Nicholas Kristof seems to think so: Death by a Thousand Blogs

The collision between the Internet and Chinese authorities is one of the grand wrestling matches of history, visible in part at

That’s the Web site of a self-appointed journalist named Li Xinde. He made a modest fortune selling Chinese medicine around the country, and now he’s started the Chinese Public Opinion Surveillance Net - one of four million blogs in China.

Mr. Li travels around China with an I.B.M. laptop and a digital camera, investigating cases of official wrongdoing. Then he writes about them on his Web site and skips town before the local authorities can arrest him.

[...] All this underscores how the Internet is beginning to play the watchdog role in China that the press plays in the West. The Internet is also eroding the leadership’s monopoly on information and is complicating the traditional policy of “nei jin wai song” - cracking down at home while pretending to foreigners to be wide open.

[...] So where is China going? I think the Internet is hastening China along the same path that South Korea, Chile and especially Taiwan pioneered. In each place, a booming economy nurtured a middle class, rising education, increased international contact and a growing squeamishness about torturing dissidents.

President Hu has fulminated in private speeches that foreign “hostile forces” are trying to change China. Yup, count me in - anybody who loves China as I do would be hostile to an empty Mao suit like Mr. Hu. But it’s the Chinese leadership itself that is digging the Communist Party’s grave, by giving the Chinese people broadband.

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Will the EU Really Go Through With This? [7:32 am]

Particularly given the US’ resolution of the antitrust case? Microsoft Must Comply or Face Fine

Microsoft has until the middle of next week to comply with the European Commission’s antitrust ruling, or face daily fines of up to $5 million, Europe’s competition monitor said Monday.

Slashdot Deadline Looming for Microsoft in Antitrust Case

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WinAmp for iPod [7:26 am]

And the game of MAD continues — how long will Apple continue to cripple iTunes, and how long will users program around its limitations? IPod Plug-In Sets Music Free

IPod users are raving about a plug-in that makes the Winamp digital jukebox a better way to manage the iPod than Apple’s iTunes.

The plug-in, called ml_iPod, allows iPod users to bypass iTunes and manage music collections in Winamp instead. The iPod is supposed to work with iTunes only. A new version of the software was released Monday.

[...] To prevent iPod users from easily copying vast libraries of songs from computer to computer, Apple forbids tracks from being moved off the iPod — songs can only be put onto the iPod. In addition, each iPod is associated with a single copy of iTunes. The association can be changed, but only if all songs on the iPod are erased.

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May 23, 2005

Stretching [8:37 pm]

Best Buy Is Named in Lawsuit Over Patents

Patent fights over computer chips and software are everyday events. But the company that holds the patents covering V-chip television technology has taken an uncommon step in an infringement suit it initiated earlier this month in Toronto: rather than suing a maker of television sets, Tri-Vision Electronics is going after Best Buy Canada, which sells them.

[...] Teresa Scassa, associate director of the Law and Technology Institute at Dalhousie University in Halifax, said the idea of holding a retailer responsible for patented technology contained in a product it sold was not beyond the law in Canada.

“This is on the unusual side of things,” she said. “But it’s certainly clear that you can sue anyone in the supply chain, down to the consumer who bought the product. And they can be liable whether they know the product is infringing or not.”

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Technology, Access and Creativity [8:31 pm]

So Long, Garage Jammers. Nowadays Laptops Rock.

Music recording, an arduous, analog process that has long been the province of musician gearheads and studio savants, is being downsized and democratized by a virtual array of digital sound loops, simulated instruments and the notebook-size means to record them. The growing power of laptop computers and new software means consumers have gone from listening to music at the push of button to creating it with similar ease.

[...] “We are in the midst of a true consumer push to create music,” said Tim Bajarin, a technology industry analyst with Creative Strategies. “They now have the ability to storyboard a song by dragging and dropping.”

The phenomenon appalls many longtime musicians and many of the songs are lame efforts that should remain in the laptop, but there are gorgeous and surprising exceptions. Most of the work seems to fall somewhere in the middle.

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Siva and Copyright In Practice [8:11 pm]

Nothing like getting to read a real fight over what copyright does while speaking from a notion of what it’s supposed to be for: Who is Copyright For?

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