June 22, 2005

Spoke Too Soon [8:29 am]

SAG Game Contract Scuttled [pdf]

In a potentially divisive move, the Screen Actors Guild’s national executive committee on Tuesday rejected a proposed contract covering performers who provide the voices of video game characters.

The unexpected move scuttled a deal — reached earlier this month by union negotiators — that would have given actors a 36% raise over three years but failed to gain residual payments for actors in top-selling games.

It also throws into question what future role SAG will have in dealing with the $25-billion game industry because representatives of its sister union, the American Federation of Television and Radio Artists, approved the terms. AFTRA’s deal takes effect July 1.

[...] SAG members said that the negotiators had recommended the agreement unanimously, albeit reluctantly, and that the 1,900 voice actors who were affected largely favored it.

But other SAG members argued that the union should hold out until makers of video games agreed to share some of their soaring profits and also acknowledged the contribution of stars, who are increasingly tapped for games.

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June 21, 2005

HK Copyright Policy Developments [9:26 am]

Hong Kong backs copyright owners

The proposals are the culmination of a consultation exercise that the government launched in late 2004, asking whether Hong Kong should make all end-user piracy a criminal offence and introduce a US-style system of non-exhaustive copyright exemption. The consultation was prompted by a copyright law crisis that began in 2001, when the government pushed through a law making it a crime to possess an infringing copy of any kind of copyright work, from pirated software to photocopies of a newspaper article, if it was to be used in business.

[...] Hong Kong is set to criminalize the sale of modified chips that allow games consoles to play pirated computer games. Tsang said the so-called mod chips “contribute substantially to the existence of a thriving market for infringing copies”. He said the new measure would also deter “other commercial activities undertaken to circumvent the technological measures applied to a copy of copyright work distributed in the digital environment, such as songs available for sale on the internet”.

But the proposals will not give games makers and DVD manufacturers a free hand to stop people from producing devices to override measures aimed at dividing the market, such as codes that prevent DVDs sold in one region of the world from being watched on a DVD machine in another.

“We are still working out the fine details,” said Eugenia Chung, assistant secretary for commerce, industry and technology. “But our primary aim is to protect copyright, not market segmentation.”

The government also plans to introduce rental rights for films and comic books and allow copyright owners to sue if anyone violates these new rights.

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June 20, 2005

New Canadian (c) Bill Introduced Right On Schedule [7:13 pm]

Canada Introduces New Copyright Bill

There is simply no denying that the lobbying efforts of the copyright owners, particularly the music industry, have paid off as they are the big winners in this bill. The bill focuses almost exclusively on creating new rights for this select group including a new making available right, legal protection for technological protection measures, legal protection for rights management information, the ability to control the first distribution of material in tangible form, new moral rights for performances, a reproduction right for performers, and an adjustment in the term of protection for sound recordings. The bill also includes a statutory notice and notice system that will virtually compel Internet service providers to notify subscribers of alleged copyright infringements and to retain relevant personal information for 6 months.

[...] Anyone who has followed copyright reform history will not be surprised to learn that individual Canadians are the big losers today. Although the bill could have been worse (the U.S. version of the law is even more user-unfriendly) and there are some provisions that permit the use of digital works in an electronic and teaching environment (filled with all sorts of limitations) that is cold comfort to millions of Canadians who find themselves with a bill that does virtually nothing to address their concerns.

Slashdot: Canada Introduces DMCA-Style Copyright Law

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That Didn’t Last! [5:24 pm]

L.A. Times shuts reader-editorial Web site (see Stacy Schiff Raises a Warning Flag)

In a short-lived mass media experiment, the Los Angeles Times has closed a Web site it launched on Friday that allowed readers to rewrite editorials.

The paper said it made the move after the site was flooded with obscene messages and photos.

Guess EPIC 2014 is not quite so near

Later: from the Guardian - People power backfires for LA Times

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Critiquing Stallman’s EU S/W Patents Article (updated) [10:31 am]

Scrivener’s Error critiques a Stallman article in the Guardian (Patent absurdity: ZDNet also has it here) in this posting: Time Is of the Essence

[...] Stallman’s article reflects considerable ignorance of the historical bases of “fictional enterprise.” (Perhaps, though, the world would be a better place had Hugo’s overweening claptrap never seen the light of day… and inspired a really, really bombastic musical a century and a quarter later.) It reflects even more ignorance of the clash between the way writers actually work and prior art–in all senses of that term. The real problem is not with patent protection for software per se (because at least patent protection can be disclaimed!), but with the combination of the term of patent and examination procedure. Patent law uniformly applies for a uniform period (well, except for certain highly profitable drugs, but that’s a rant for another time). Patents do not cover all types of intellectual material. Given the pace of change, perhaps restricting patents that do not have a specific physical embodiment of the best method disclosed in the patent to six years (or so) from date of conception might be an appropriate compromise; I’m throwing “six years” out there primarily because the number is so distinct from everything else in IP that it won’t lead to confusion (e.g., the five-year incontestability period in US trademark law).

Later: In Major Blow to Opponents of Software Patents in EU, Slashdot points to this article - IT groups win EU ruling on patents (see also Breakthrough for EU software patent law)

Big technology groups such as Nokia, Siemens and Philips scored a significant victory on Monday night, when a key European parliament committee rejected plans that would have curtailed their ability to win patents for their inventions.

In a narrow and keenly awaited decision, the parliament’s legal affairs committee threw out proposals for a sweeping overhaul of a controversial European Union proposal known as the software patents directive.

Most importantly, they voted down the overwhelming majority of amendments that would have made it more difficult for companies to win patent protection for software-related inventions.

And you can give yourself your own headache reading these two articles on Microsoft’s XML patenting - MS Office XML Formats Not OK with GNU and Microsoft XML technologies and patents drawing fire from multiple quarters

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No Grokster/Brand X Today [10:26 am]

SCOTUSblog: Court decides six “second tier” cases

Next possibility is this Thursday

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J. Grimmelmann on Code as Regulation [9:41 am]

Regulation by Software

This Note builds on Larry Lessig’s famous formulation that “code is law” to argue that Lessig was wrong to equate computer software with physical architecture. Although software resembles both law and architecture in its power to constrain behavior, it has features that distinguish it from both. The Note identifies four relevant attributes of software: It is ruleish, potentially nontransparent, impossible to ignore, and vulnerable to sudden failure. By assessing the impact of these characteristics in a given context, one can decide whether software is a good or a bad choice to solve a regulatory problem.

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Brand X Also Pending [9:29 am]

FCC, Brand X near Supreme decision

The case, FCC v. Brand X, revolves around semantics and a highly technical legal definition of cable Internet.

The FCC has defined cable broadband as an “information service”–a definition that, under FCC guidelines, frees cable companies of regulations that would require operators to share their networks with competitors, including Internet service providers such as California-based Brand X. Brand X argues that cable networks should be regulated like phone lines, which, because they handle telecommunications service, must allow competing services to ride over their network.

The outcome of the Brand X case could set the ground rules for competition in the broadband market for years to come.

Forbes article: The Cable Question

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Congress After The Judiciary, Again [8:42 am]

A discussion of a provision in the appropriations bill (HR.2862) for the Department of Justice, among others: Congress Assaults the Courts, Again

From the bill, Title VIII, Section 805:

SEC. 805. None of the funds appropriated in this Act may be used to enforce the judgment of the United States District Court for the Southern District of Indiana in the case of Russelburg v. Gibson County, decided January 31, 2005. [opinion gleaned from Masson's Blog]

The implications?

During consideration of an appropriations bill for the Departments of State, Justice and Commerce, Representative John Hostettler, Republican of Indiana, introduced an amendment to prohibit any funds from being used to enforce Russelburg v. Gibson County. In that case, a federal court ruled that a courthouse Ten Commandments display violated the First Amendment and had to be removed. Mr. Hostettler declared that the ruling was unconstitutional, and inconsistent with “the Christian heritage of the United States.”

Since the Supreme Court decided Marbury v. Madison in 1803, it has been clearly established that the courts have the ultimate power to interpret the Constitution. But right-wing ideologues, unhappy with some of the courts’ rulings, have begun to question this principle as part of a broader war on the federal judiciary. The amendment that passed this week reflected an effort to use Congress’s power to stop the courts from standing up for the First Amendment and other constitutional principles.

Rep Hostettler’s press release

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Design Diffusion, Copying and the Internet [8:33 am]

That Looks Familiar. Didn’t I Design It?

Design poaching may be on the rise because corporate retailers are spooked by the growing influence of new designers. Marshall Cohen, the chief industry analyst at NPD Fashionworld, a consulting firm in Port Washington, N.Y., that tracks retailing trends, estimates that design businesses of all sizes have been able to maintain their 7 percent slice of the apparel market mainly because of growing sales by small designers.

“Because most stores are so homogenous,” he said, “new designers are paving the way for department stores to separate themselves from the pack.”

Success, however, can breed problems. Many young designers say they have discovered that the swift success made possible by a big sale to the right store or by the buzz that comes with the attention of fashion-fixated magazines, Web sites and blogs can lead to a boom in imitators - or counterfeiters - as well as a boom in customers.

“Young designers are finding that with Internet and shopping magazines, the right people are watching,” said Dannielle Romano, the editor at large at www.dailycandy.com, a Web site that showcases offbeat handbags, shoes and scarves. “The flip side is that all of the wrong people are watching, too.”

[...] Most designers do not have much protection from the law. Few bother to get design patents, an expensive and time-consuming process that they say does not make sense in the fast-paced world of fashion. Nor can they get much help from copyright laws that apply to forms of artistic expression, a difficult concept to establish for functional items.

In order to sue successfully for “trade dress infringement,” they must prove that their design is either unique or is an identifiable image of their brand - much the way Coca-Cola relies on the shape of its bottle as a symbol of its brand. Neither argument works particularly well for fashion designers who may have been in business only a few months.

[...] Mr. Schwartz of A.B.S. has some advice for newcomers: Stop whining. “When you are talking about fashion, lose the word original,” he said. “Ask the small designers where they got their inspiration. They pull their inspiration from others. It’s in the air. You don’t sit by the window and wait for it to materialize.”

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WaPo on CD Copy Protection [8:14 am]

From the Sunday paper: Burners’ Bummer [pdf]

It’s one thing for record companies to file suit against people who share music files illegally on the Internet, or to pursue criminal charges against those who make pirated copies of CDs and sell them on street corners. But this is different. Generations have grown up with the notion that if you buy an album at the store, the songs are yours to show off to your friends.

In the 1970s and ’80s, people made mix tapes without thinking twice. The tapes were an expression of personality. “A good compilation tape, like breaking up, is hard to do,” Nick Hornby wrote in “High Fidelity,” a novel in which mix tapes served as the very definition of identity and the currency of relationships.

With the death of the cassette tape, that same mentality transferred to the mix CD. It became a birthday gift, a wedding compilation, a way to say “sorry” or “I love you.” In college dorms, students started exchanging CD albums so that a hardcore Nirvana fan could try a little Garth Brooks without having to pay for the whole CD.

[...] So in a move that risks alienating a dwindling customer base, the major record labels are tightening up restrictions on CDs.

A growing number of newly released CDs are equipped with software that limits users from burning copies more than three times. On CDs released by record company Sony BMG Music Entertainment, individual songs can be used in compilations only three times.

Rival EMI Music will test CDs with a similar technology this summer, releasing three to six titles with a three-time burn limit on each album. (No, you can’t make copies of burned CDs — the content protection won’t allow it.) In addition, consumers can copy an individual song up to seven times. Both EMI Music and Sony BMG use technology that prevents the songs from working on peer-to-peer networks such as Kazaa, which contain songs in MP3 format.

This juncture in technology is a tricky proposition for music lovers, who often say they support artists’ rights to combat piracy. Yet, when it comes to individual use, they assert ownership of their CDs with an almost parental pride.

[...] The CDs that have content protection say so in a label on the disc. If consumers try to get around it, they should know that their actions are illegal, said Thomas Hesse, president of global digital business for Sony BMG.

[...] As technological advances empower consumers, the free flow of music continues to spill over the boundaries set by the recording industry. Last week, Freedland, the Duke University student, downloaded free tracks from the new Dave Matthews Band CD from a peer-to-peer network. They are now on his iPod, ready for listening.

“It seemed like an entitlement,” Freedland said. “I purchased the music, and I should be able to do what I want with it. Now I can.”

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This Monday’s pre-10:ooam Grokster Coverage [7:27 am]

Only two Mondays left in this Supreme Court term:

  • NYTimes: The Court of Online Opinion Has Its Say on File Sharing - New York Times

    Not surprisingly, technophiles siding with Grokster have been most vocal on Internet forums and Web logs. But among those willing to make predictions, whether authors of Grokster supporting briefs, or mere spectators keeping watch on the case as they download “Batman Begins,” pessimism prevails.

    Most believe that the Supreme Court will send the case back to the United States Court of Appeals for the Ninth Circuit, which upheld a lower court’s decision against MGM and its fellow petitioners last August. Others think that the Supreme Court will side cleanly with the industry. Only a plucky minority said the high court would unequivocally side with the software companies.

    If the seers have not already been proved sage or foolish - the Supreme Court typically issues decisions on Mondays at around 10 a.m. - they soon will be. A selection of those bold enough to predict the outcome follows.

  • Seattle Times (Sunday): Supreme Court to rule on file-sharing

    The new models threaten the system that record companies have dominated for decades, says Seattle music producer Steve Fisk.

    The next album Fisk is helping produce for the band Harvey Danger will be available free on the Internet and later sold as a CD with extra tracks.

    “The minute you make a CD, you have to have a building with employees running around trying to sell that CD and trucks to transport the plastic disks all over the world,” he said. “That’s the system that’s dying.”

  • CNet’s Friday article: Justices to rule on fate of file-swapping

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June 18, 2005

Profiling MPAA’s Glickman [12:29 pm]

Keeping Moviegoers Away From the Dark Side

But whatever the outcome [in Grokster], Mr. Glickman, the president of the Motion Picture Association of America, has no intention of easing up in his campaign against online movie piracy. Tactics may change, he says, but not the strategy.

[...] “In the movie industry, we have to get ahead of the curve,” Mr. Glickman said. “There is no reason why what happened in the record industry couldn’t happen in the movie industry.”

Many industry executives recognize the looming problem. “Faced with a technology disruption, you can either fight it and treat it like a threat or look at it as an opportunity and try to develop new businesses,” observed Mitch Singer, executive vice president for digital policy at Sony Pictures.

Yet the movie industry, some analysts say, is too intent on fighting these days. “It’s a real mistake to focus on suing people so much instead of moving with the technology into the future,” said Harold L. Vogel, an independent media analyst.

Related: File Swappers Get Creative as Wheels of Justice Turn

See also MPAA’s Glickman Rhetoric Redux

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June 17, 2005

Ad Age Article On Free vs. Paid Online Content [4:28 pm]

Forbes.Com’s Internet Audience-Building Secret [pdf]

To Web cognoscenti, the ad-supported vs. paid content argument is so 2001.

[...] Even as Dow Jones — long the paid-for poster child — revealed plans to hike subscription rates and The New York Times found some columnists, archives and other assets to hide behind a $50 curtain, several others such as AOL, The Los Angeles Times and CNN moved in the opposite direction, dismantling their toll booths.

So it’s horses for courses then. Some will charge, others won’t, and there’ll be many middle-ground solutions. Nothing to debate.

But wait. What if one side is backing the wrong horse? What if the pay-to-play guys are missing an opportunity and the advocates of a “free” Internet are more than just naive advocates of egalitarianism?

The thought occurred to me when I read a report about American Business Media’s spring conference on BtoBonline.com. It contained this gem: “Responding to an audience question about when Forbes.com will surpass the print edition in terms of revenue, Jim Spanfeller, president-CEO of Forbes.com, said: ‘Probably in about 18 to 20 months.’”

[...] How has [Forbes] come so far in the digital realm so fast? Largely by being, in almost every regard, free, and therefore part of the open-to-all, continuous conversation that takes place via forums, blogs and links all over the Net. That is not to take anything away from Forbes.com’s editorial package, which is highly readable, responsive and totally tuned to Web viewers.

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Format Lifecycle Data Point [9:55 am]

Not long left for cassette tapes — the first of the “music piracy” formats?

From its creation in the 1960s through to its peak of popularity in the 1980s, the cassette has been a part of music culture for 40 years.

But industry experts believe it does not have long left, at least in the West.

[...] “Cassette albums have declined quite significantly since their peak in 1989 when they were selling 83 million units in the UK,” Matt Phillips of the British Phonographic Industry (BPI) told BBC World Service’s The Music Biz programme.

“Last year we saw that there were about 900,000 units sold. It’s clear to see that cassette sales are dwindling fast.”

[...] Oddly, Philips did not charge royalties on their cassette patent, allowing numerous other companies to use their design for free. This ensured the quick acceptance of it as a new form of media.

[...] The music industry itself, however, remained concerned about cassettes, in particular the ability of people to record music on them.

They feared piracy, arguing that home taping was “killing music”, a similar argument to the one occurring today over downloading.

Techdirt’s Now The Cassette Tape Is Dying?

Later: some additional information about the licensing arrangements for cassettes - The decline of the audiocassette

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OT: *Really* Sticking It To Dr. Frist [8:46 am]

Where’s The Apology?

In an appearance yesterday on ABC’s “Good Morning America,” Frist insisted: “I raised the question, ‘Is she in a persistent vegetative state or not?’ I never made the diagnosis, never said that she was not.”

Well, that depends on the meaning of “diagnosis.” In the midst of his impressively detailed medical review, Frist declared flatly: “Terri’s brother told me Terri laughs, smiles, and tries to speak. That doesn’t sound like a woman in a persistent vegetative state.”

So, Frist wanted to be seen as having the medical expertise to support his conclusion when doing so was convenient — and now wants us to think he did nothing of the sort.

The Majority Leader’s back-and-fill operation: Frist Defends Remarks on Schiavo Case

Later: Ellen Goodman - Views That Facts Can’t Shake [pdf]

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“Let’s Take It, To the Limit, One More Time” [8:31 am]

Several are pointing to this particular expression of copyright extremism: Copyright cops crack down on cooks over cakes - not to mention the spirited, if ill-informed, discussion that arose from its posting over at BoingBoing. Wendy Seltzer points out:

Equally amazing, though, are the comments posted in the boingBoing thread: lawyers write that IP requires companies to “police” their property or lose it; non-lawyers argue that everything other than a direct copy is non-infringing. Neither is true: copyright is never lost by non-enforcement, and trademark demands policing only against confusing designations of source. Non-identical copies can still be derivative works — either infringing or fair use as the case may be. But at the end of the day, no one’s rights are threatened by “unauthorized” cake decorating. As my colleague Jason notes, the whole discussion shows how polarized the “intellectual property” debates have become — and how far out of touch with ordinary people’s expectations.

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June 16, 2005

Sony BMG Explaining How To Circumvent Its Own Protections? [5:00 pm]

This Reuters news article on the copy protected BMG CDs coming out, Sony BMG hinders music pirates with protected CD [pdf], includes this amazing assertion:

The copy-protection technology is also far from ironclad. Apple

Macintosh users currently face no restrictions at all. What’s more, if users go to a Web site to complain about the lack of iPod compatibility, Sony BMG will send them an email with a “back door” measure on how to work around the copy protection. [emphasis added]

Isn’t that against the law (§1201 and §1204)?

Later: Ernest offers his analysis - Ask Nicely and They’ll Tell You How to Bypass Their DRM

Related: A consumer experience - Burners’ Bummer [pdf]

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P2P Marketers Into BitTorrent? [3:52 pm]

Does this mean, as the eWeek newsletter teaser said, “Alas, Torrent, we hardly knew ye”? Spyware Floods In Through BitTorrent

BitTorrent, the beloved file-sharing client and protocol that provides a way around bandwidth bottlenecks, has become the newest distribution vehicle for adware/spyware bundles.

[...] According to Chris Boyd, a renowned security researcher who runs the VitalSecurity.org nonprofit resource center, the warm and fuzzy world of BitTorrent has been invaded by a massive software distribution campaign linked to New York-based adware purveyor Direct Revenue LLC.

“This is the marketing campaign to end all marketing campaigns,” said Boyd, the Microsoft Security MVP (most valuable professional) known throughout the security industry by the “Paperghost” moniker.

In an e-mail interview with Ziff Davis Internet News, Boyd said rogue files have popped up occasionally in BitTorrent land but those were usually just random executables. “This is the first time I’ve seen a definite money-making campaign with affiliates, distributors and some pretty heavy-duty adware names,” he added.

A key Chris Boyd blog entry on the topic: Direct Revenue: My Response

Slashdt: Spyware Floods in Through BitTorrent

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Mark Cuban on Macrovision [11:12 am]

What am I missing Macrovision? [via BoingBoing]

So just what is the purpose of having Macrovision copy protection on DVDs? To raise the price to consumers? To make things more difficult for them? To make sure its illegal to backup DVDs we have purchased?

Am I missing something here?

I could see if the stuff worked and it kept the bad guys from doing bad things. Then it would have to be a price consumers paid. Publishers have a right to protect their content. But, it obviously doesn’t work. If it did, there would be nothing to sue anyone over. Instead they would be taking out ads saying how they kicked all the bad guys’ asses. But they aren’t. They are suing companies and admitting their software sucks.

So hows bout we cut consumers a break and get this shit away from our DVDs.

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