Followup: France’s Digital Interop Bill

French Draft Law Threatens iPod’s Future [pdf]

Amendments to an online copyright bill, adopted early Friday, would give rivals access to the hitherto-exclusive file formats at the heart of Apple’s music business model as well as Sony Corp (NYSE:SNE – news).’s Walkman players and Connect store.

[…] According to the latest amendments, however, copy-protection technologies like Apple’s exclusive FairPlay format and Sony’s ATRAC3 “must not result in the prevention of the effective application of interoperability.”

Companies would have to share all “information essential to the interoperability” of their copy-protection formats with any rival that requests it. If they refuse, a judge can order its delivery, on pain of fines.

The draft law could force Apple to let French iPod users buy their music from download sites other than iTunes. Owners of other music players would also be allowed to buy songs from iTunes France.

“Without guaranteed interoperability, we run a major risk of captive client bases and an anti-competitive situation, with the consumer held hostage as a result,” read the explanatory note accompanying one of the key amendments, introduced by five lawmakers from the governing conservative Union for a Popular Movement.

[…] Critics of the draft law say legislators have no business forcing Apple to share its proprietary format, which most customers are aware of when they choose to buy an iPod. But consumer groups argue that the only way to give customers real choice is to break open the restrictions.

Also, from InfoWorld: French bill may drive away open-source developers

At issue was an amendment to the bill that tacked on a three-year prison sentence and a fine of €300,000 ($360,000) for publishing, distributing or inciting people to use software “manifestly intended to make protected works available to unauthorized persons.” The protected works referred to include DVDs and some digital music files, the use of which is restricted by DRM (digital rights management) systems.

Supporters of open-source software — including a number of deputies participating in the debate — fear that the bill would make it illegal to develop something as innocent as a DVD player application for the Linux (Overview, Articles, Company) operating system, since an open-source implementation of the algorithm required to decrypt and play a DVD would necessarily also contain code useful to someone wishing to make copies of it.

If they risk imprisonment or financial ruin working on such projects in France, then “French companies, engineers and researchers will become expatriates and develop the software beyond our borders,” another deputy, Patrick Bloche, warned during the debate on Wednesday night.

Esther Dyson on Goodmail and Net Neutrality

Markets — the solution to everything; even if I don’t want to put in the effort to make it work properly. After all, isn’t beauty in the eye of the beholder anyway? You’ve Got Goodmail

Goodmail, in my eyes, does not raise moral issues. It simply wants to make the Internet a better place — and yes, make a little money along the way.

Of course, the critics say, this is the first step. Pretty soon all mail will cost money, and then the free, open world of the Internet will be closed to poor people, nonprofits and other good guys, while multinational conglomerates fill their ever-growing pockets.

I agree that pretty soon sending most e-mail will cost money, but I think that’s only right. It costs money to guarantee quality and safety. Moreover, I think the market will work, and that it will not shut out deserving senders, if we only let it work freely.

[…] Senders should bear the costs of sending mail, and it should be the senders’ duty to figure out whether each piece of mail is wanted. Ultimately, I believe, Goodmail or its successors will develop a mechanism to rebate some of the fees to the senders whose mail is wanted. That’s why I don’t worry about individuals and nonprofits being squeezed out.

[…] In my case, I’d have a list. I’d charge nothing for people I know, 50 cents for anyone new (though if I add the sender to my list after reading the mail, I’ll cancel the 50 cents) and $3 for random advertisers. Ex-boyfriends pay $10.

What shocks me most about the opposition to Goodmail is that people who claim to believe in the free and open Internet, with its welcome attitude to innovation, want to shut down an idea. That’s wrong.

If people like those little stamps that mark their mail as safe and wanted or as commercial transactions, then let the customers have them. And let other companies compete with Goodmail to offer better and less expensive service.

Goodmail isn’t good because it’s new, but neither is it bad because it’s new. If it’s a good model, it will succeed and improve over time. If it’s a bad model, it will fail. Why not let the customers decide?

Counterpoint from the Christian Science Monitor, March 15: Tolls may slow Web traffic


“You’re not looking at a free marketplace of competitors,” says Wendy Seltzer, a former staff attorney at the Electronic Frontier Foundation, a consumer rights group, who now teaches Internet law at Brooklyn Law School.

Without forcing some commitment to net neutrality from Internet providers, small startups may never get a chance to see where their ideas could lead, advocates say. The very vitality of the Internet will be threatened.

“That’s certainly something that the net neutrality forces will be trying to argue,” says Ms. Seltzer. “Network neutrality might be a little bit of regulation, but it’s regulation that’s good for [promoting] a lot more free market.”

Also, AARP (among others) cast their vote: Push for Net neutrality mandate grows

The 35 million member group is among a growing list of companies and organizations that signed a new letter Thursday urging senators to require Net neutrality principles by law. Also called network neutrality, it’s the idea that the companies that own the broadband pipes should not be able to configure their networks in a way that plays favorites–allowing them, for example, to transmit their own services at faster speeds, or to charge Net content and application companies a fee for similar fast delivery.

“We’re not traditionally someone who would be involved in technology legislation and things of that nature, but this has a direct impact on our members and their lifestyles,” said AARP spokesman Mark Kitchens.

OZ ViiV Unveiling and DRM

Feelin’ the vibe at Intel’s Viiv launch [via Slashdot]

According to Don MacDonald, Intel’s stance surrounding Digital Rights Management (DRM) is that consumers should be able to do whatever they like with legally purchased content. That means backing it up to external drives and streaming it to other devices such as handhelds and networked machines.

As such, Intel is encouraging Viiv content providers to allow users to pass their media to other devices — a factor that’s critical to the success of the Viiv concept. We were unable to confirm whether or not the current selection of content could be streamed seamlessly to external devices, but as mentioned above, this feature won’t be widely available until the digital media adapters hit our shores later this year anyway.

Interestingly, MacDonald also told that Viiv won’t be testing to see if the content being played is pirated from networks such as BitTorrent. He believes that it’s not Intel’s job to be policing downloads and that it’s wrong to assume that “all consumers are criminals”. As such, Viiv won’t test for “watermarks” or other red flags that reveal pirated content, allowing any type of media to be played.

Ultimately, though, MacDonald is confident that piracy won’t be a significant issue for Viiv, as Intel promises to “make content easier to buy than it is to pirate”.

Hmmm — hasn’t that always been the point of copyright? The problem, of course, is who gets to set the limits and parameters of what “easy” means….

Google Progresses On ©

Judge dismisses Google copyright case [pdf]

In a ruling issued last Friday and made known on Thursday, Judge R. Barclay Surrick of the U.S. District Court for the Eastern District of Pennsylvania rejected eleven allegations contained in a civil complaint by plaintiff Gordon Roy Parker of Philadelphia.

Parker, 39, an online publisher of sexual seduction guides with titles like “Why Hotties Choose Losers,” is a former paralegal who was acting on his own behalf in suing Google. His site also offers racetrack betting and chess-playing tips.

The eleven claims against Google had included accusations of copyright and trademark infringement, invasion of privacy, negligence, racketeering, abuse of legal process and civil conspiracy, according to the court documents.

Judge Surrick’s ruling found that Google enjoys projection under an exemption to the Communications Decency Act for online service providers acting as an automatic redistributor of published material.

The opinion – Parker v. Google (local copy)

In addition, while it is not entirely clear from Plaintiff’s rambling Complaint, should Parker be claiming direct copyright infringement based on Google’s automatic caching of web pages as a means of indexing websites and producing results to search queries, this activity does not constitute direct infringement either. Based upon Title II of the Digital Millennium Copyright Act, the Online Copyright Infringement Liability Limitation Act, 17 U.S.C. § 512(b), the District Court for the District of Nevada recently held that Google is entitled to the Act’s safe harbor provisions for its system caching activities. Field, 2006 WL 242465, at *14-16 (granting Google’s motion for summary judgment that it qualifies for § 512(b) safe harbor for system caching). We conclude that Plaintiff has not stated a claim upon which relief can be granted based solely on Google’s automatic system caching. We are satisfied that neither the automatic archiving of USENET messages and automatic caching of websites, nor the excerpting of passages from Plaintiff’s website, constitutes direct infringement. Accordingly, we will dismiss this claim.

[…] Despite our lenient review of Plaintiff’s Complaint, it is clear that with regard to his claims of copyright infringement, contributory copyright infringement, vicarious copyright infringement, defamation, invasion of privacy, negligence, Lanham Act violations, and abuse of process, Plaintiff has failed to state a claim on which relief can be granted. With regard to Plaintiff’s racketeering and civil conspiracy claims, the Complaint fails to meet Rule 8(a)’s short and plain statement requirement and will be dismissed.

Slashdot – Google Wins a Court Battle

Google Library OpEd in Today’s Globe

An endless shelf for library books [pdf]

The problem, however, comes with the fact that in order to excerpt small portions for the Web and in order to gain the true advantage of Google’s powerful search engines, Google will have to scan the entire book into the system and keep it there. The publishers are not content with Google’s assurances that their project will increase sales. They argue that they need to grant Google permission or some kind of licensing.

What’s shaping up is a classic new economy/old economy struggle. In the minds of those in the high-tech world, openness and profit are not in conflict. The grandfather of the Google Library Project is former vice president Al Gore, who, as a congressman and senator brought the Internet into the modern age by using one powerful image — the ability of a little girl in Carthage, Tenn., to access a book from the Library of Congress.

He helped Google start the library project, and he urges people to read an article from the October 2004 issue of Wired magazine called ”The Long Tail.” In it Chris Anderson argues: ”Hit-driven economics is a creation of an age without enough room to carry everything for everybody. Not enough shelf space. . .” The future, he argues, is Rhapsody, a subscription-based streaming music service that offers and makes money on more than 735,000 tracks. The parallel to the world of bookstores and libraries is obvious.

But the publishing industry views this new world with suspicion. At stake is the meaning of copyright in a digital age and the effects on the economics of publishing, neither of which are very well understood. In the meantime, professor Verba’s grand vision is on hold while the courts and everyone else struggle to get a grip, one more time, on the information age.