Ninth Circuit Slaps Down Kahle

Orphan works are just locked up, like everything else – or we can just say “Eldred Forever!” U.S. court upholds copyright law on “orphan works”pdf

The U.S. Court of Appeals for the Ninth Circuit affirmed a lower court decision to dismiss Kahle v. Gonzales, which argued that legal changes made in the 1990s had vastly extended copyright protections at the expense of free speech rights.

Orphaned works are a hot-button issue for the publishing industry, which has resisted efforts by Web companies Google Inc., Yahoo Inc. (Nasdaq:YHOO – news) and the Internet Archive — working with major academic libraries — to scan orphaned and out-of-copyright works to make them available for free on the Web.

[…] “They (the plaintiffs) make essentially the same argument, in different form, that the Supreme Court rejected in Eldred. It fails here as well,” the eight-page opinion written by Ninth Circuit Judge Jerome Farris stated.

The opinion: Kahle v. Gonzales

Although the Supreme Court recently addressed similar issues in Eldred, Plaintiffs argue that their specific claims were not answered — or if they were, only in dicta. They place particular emphasis on the increased possibilities for archiving and disseminating expressive content over the Internet and the detrimental impact the change from an opt-in to an opt-out system has on those efforts. Plaintiffs articulate policy reasons behind their position; they do not, however, provide a legal argument explaining why we should ignore the clear holding of Eldred.

[…] Both of Plaintiffs’ main claims attempt to tangentially relitigate Eldred. However, they provide no compelling reason why we should depart from a recent Supreme Court decision.

Microsoft Gearing Up For Vista Release

With an anti-piracy push (see Microsoft to use comics in antipiracy campaign). The Microsoft Software Piracy Protection page is rife with the usual sort of stuff, but I was drawn to this assertion at the top of their types of piracy page:

While you may know that copying and/or distributing copyrighted software illegally is considered piracy, you may not be aware that even possession of software that has been illegally copied is piracy. There are actually many distinct types of software piracy, and familiarity with them can protect you from any connection, even if unintentional, to intellectual property theft.

Note the careful language — “you may not be aware that even possession of software that has been illegally copied is piracy.” Not illegal, though, but why not scare the reader?

Slashdot: Microsoft Launches Comical Effort to Fight Piracy

European Governments and DRM

German, French groups want open iTunespdf

German and French consumer groups have joined a Nordic-led drive to force Apple Inc. to make its iTunes online store compatible with digital music players made by rival companies, a Norwegian official said Monday.

[…] Last June, consumer agencies in Norway, Denmark and Sweden claimed that Apple was violating contract and copyright laws in their countries.

[…] In a written statement after one such meeting in Oslo in September, Apple said it “is working to address the concerns we’ve heard from several agencies in Europe, and we hope to resolve these issues as quickly as possible.”

Thon said Norway gave Apple until September to change its polices, or face possible legal action and fines in the country.

Later from Reuters: Norway tells Apple change iTunes or face court pdf — or, as we know, there’s another option – close iTunes Norway.

A Little Bickering Going On

Also, a promoting a false dilemma: Music industry divided over digital futurepdf

Critics of the major players in the industry argue that they have been distracted by the fight against piracy and in doing so, hindered the growth of the legal business.

In response, the accused argue that they had little choice.

“Many people around the world tell me that we’ve handled our problems in an incorrect manner but no one tells me what we should have done,” John Kennedy, the head of the industry’s trade body IFPI, told Reuters in an interview.

“Free is just impossible to compete with.”

See, for example, this analysis of the recent arrest of mixtape artist D. J. Drama: Cracking Down on Mixtape CDs

Fans and music executives say the raid will most likely push the production and sale of mixtapes further underground — and encourage more efforts to skirt the edge of laws against the sale of unauthorized songs. At one major mixtape Web site, fans can choose from an array of current mix CDs on display. To get one, though, they must pay $7 for a sticker bearing the Web site’s name. Each sticker comes with a free mixtape.

See also Slashdot’s pickup of some wishful thinking: Music Companies Mull Ditching DRM; later – the NYTimes takes the same approach in its coverage – Record Labels Contemplate Unrestricted Digital Music

Another Entertainment Sector Gaining from Internet Delivery

It’s not all porn, apparently: Comics get last laugh with tech boompdf

While the entertainment industry is still wondering how to make new technology work for it rather than against it, one group of performers appears to be hitting the digital jackpot.

The speed and enthusiasm with which fans now trade, e-mail, upload and consume all kinds of comedy — everything from short films to isolated sketch bits, classic TV moments and entire stand-up routines — has become a “huge driver of business,” say industry executives who gathered here for the second annual South Beach Comedy Festival, which wrapped Saturday night.

[…] In fact, many teens lately are more apt to know the names of such hot comedians as Brian Regan, Dane Cook and Frank Caliendo than what new music tops the charts. With entire episodes of some shows and stand-up acts freely traded among fans (and most copyright-holders either looking the other way or hammering out new partnerships), comedians are enjoying unprecedented promotion. And because much of it is viral, it carries the added, elusive prestige of peer endorsement, those in the industry say.

Detroit Joins the iPod Ecosystem

Sort of, although, in typical fashion, they seem to be hedging their bets: Downloads drive Detroit to update audio systemspdf

Two-thirds of 2007-model cars will enable users to connect MP3 players to factory-installed stereos.

Leading the charge is Ford Motor, which at the Detroit Auto Show January 9 introduced a new factory-installed, in-car communications and entertainment system called Sync, developed in partnership with Microsoft.

While auto manufacturers have offered iPod-integration kits as a dealer-installed option for some time, Sync revolutionizes the way consumers connect MP3 players and mobile phones to the vehicle’s central nervous system. Using either a USB port — a standard feature on personal computers — or Bluetooth wireless technology, Sync lets users operate and control any MP3 player through voice commands, the car steering wheel or the dashboard stereo.

It supports not only the iPod but also files purchased from iTunes as well as subscription tracks on PlaysForSure devices. Users can even stream Internet radio feeds from mobile phones through the stereo system.

Pushing the Envelope

And can we cope with “immortal information?” E-mail from the grave? Microsoft seeks patent on ‘immortal computing’pdf

The project, dubbed “immortal computing,” would let people store digital information in physical artifacts and other forms to be preserved and revealed to future generations, and maybe even to future civilizations.

[…] “It is definitely a long-term project,” said Andy Wilson, the Microsoft researcher whose musings on the ephemeral nature of digital information inspired the research initiative.

One scenario the researchers envision: People could store messages to descendants, information about their lives or interactive holograms of themselves for access by visitors at their tombstones or urns.

And here’s where the notion of immortality really kicks in: The researchers say the artifacts could be symbolic representations of people, reflecting elements of their personalities. The systems might be set up to take action — e-mailing birthday greetings to people identified as grandchildren, for example.

The previously undisclosed project came to light through a newly surfaced patent application in which the researchers explain some of the concepts they’re exploring. The project seeks to address the fact that large amounts of valuable information are stored on media with limited life spans, in formats that could be rendered obsolete.

Patent application #20070011109: Immortal information storage and access platform; Slashdot’s Microsoft’s “Immortal Computing” Project

Ownership of One’s Writings

And the circumstances under which one might lose them: Unabomber Wages Legal Battle to Halt the Sale of Papers

Mr. Kaczynski, 64, is in a legal battle with the federal government and a group of his victims over the future of the handwritten papers, which include journals, diaries and drafts of his anti-technology manifesto.

The journals contain blunt assessments of 16 mail bombings from 1978 to 1995 that killed 3 people and injured 28, as well as his musings on the suffering of victims and their families. The government wants to auction sanitized versions of the materials on the Internet to raise money for four of Mr. Kaczynski’s victims.

But, citing the First Amendment, Mr. Kaczynski has argued in court filings that the government is not entitled to his writings and has no right to alter them. The writings were among the items taken from his remote Montana cabin after his arrest in April 1996. In a motion drafted in pen, he said he planned to argue that the government had too much discretion under a federal restitution law to confiscate writings.

Slate’s Explainer column adds a few more wrinkles: Who Owns the Unabomber’s Writings?

Prosecutors Targeting Internet Gambling Investors

But for what? Is this a “chilling effect” strategy? Or something more? Gambling Subpoenas on Wall St.

The Justice Department has issued subpoenas to at least four Wall Street investment banks as part of a widening investigation into the multibillion-dollar online gambling industry, according to people briefed on the investigation.

The subpoenas were issued to firms that had underwritten the initial public offerings of some of the most popular online gambling sites that operate abroad. […]

[…] Unable to go directly after the casinos, which are based overseas, they have sought to prosecute the operations’ American partners, marketing arms and now, possibly, investors.

The prosecutors may be emboldened by a law signed by President Bush last October that explicitly defined the illegality of running an Internet casino. Even before that law, the Unlawful Internet Gambling Enforcement Act, was adopted, the government said that Internet gambling was illegal under a 1961 provision.

[…] “It appears that the Department of Justice is waging a war of intimidation against Internet gambling,” said I. Nelson Rose, a professor of law at Whittier Law School in Costa Mesa, Calif., who is an expert on Internet gambling law.

Another lawyer, Lawrence G. Walters of Altamonte Springs, Fla., said the development was disconcerting because the prevailing wisdom had been that investment in a company that is legal and licensed in its jurisdiction was not grounds for prosecution.

“It would be the first time that that kind of liability has been imposed,” Mr. Walters said.

But he cautioned that the subpoenas could be part of a government fact-finding effort and might not signal a plan to prosecute banks.

The Perils of Being an Early Adopter

The move to HD by an industry that has always been a technology leader, and an interesting strategic choice by Sony: In Raw World of Sex Movies, High Definition Could Be a View Too Real

Pornography has long helped drive the adoption of new technology, from the printing press to the videocassette. Now pornographic movie studios are staying ahead of the curve by releasing high-definition DVDs.

They have discovered that the technology is sometimes not so sexy. The high-definition format is accentuating imperfections in the actors — from a little extra cellulite on a leg to wrinkles around the eyes.

[…] The pornographers’ progress with HD may also be somewhat slowed by Sony, one of the main backers of the Blu-ray high-definition disc format. Sony said last week that, in keeping with a longstanding policy, it would not mass-produce pornographic videos on behalf of the movie makers.

The decision has forced pornographers to use the competing HD-DVD format or, in some cases, to find companies other than Sony that can manufacture copies of Blu-ray movies.

Later: EETimes says that’s not Sony’s position at all; anyone who’s a Blu-Ray licensee can produce porn DVDs, but Sony won’t touch the business itself – Sony denies preventing porn on Blu-Ray; pdf