New Canadian (c) Bill Introduced Right On Schedule

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

That Didn’t Last!

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

Critiquing Stallman’s EU S/W Patents Article (updated)

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

J. Grimmelmann on Code as Regulation

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.

Brand X Also Pending

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

Congress After The Judiciary, Again

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

Design Diffusion, Copying and the Internet

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, 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.”

WaPo on CD Copy Protection

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.”

This Monday’s pre-10:ooam Grokster Coverage

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