2003 April 25

(entry last updated: 2003-04-25 18:58:12)

I have to wonder if Judge Bates ever pined during the Verizon trial for the "good old days" when copyright was a specialized little legal backwater, the consequences of infringement were civil penalties and the prosecution of the infringer didn’t raise such vital Constitutional issues. Who’d have thought the combination of digitization and connectivity would have changed things so much.

Oh, well – as all of us over the age of 40 know, the good old days never were quite what we remember them to be anyway.

Today’s schedule is out of control, so I’m only going to get to post a little this AM. With the Verizon ruling, expect that the legal weblogs, in particular, are going to have lots to say today.

  • Off-topic: Oh. My. God. And this is NOT from The Onion: O.J. Passes On Reality Show, But…

    (AP) Contrary to widely circulated reports, O.J. Simpson said Thursday he won’t be the star of a reality television show, but might consider becoming a news commentator for actor Robert Blake’s murder trial.

  • End of Free Redux: Technorati stats – www.nytimes.com: 6:55 PM; 244,409 weblogs watched; 9,760,297 links tracked; 5974 inbound blogs, 15742 inbound links

  • Interesting writeup on the recent DRM/Linux/Torvalds goings-on from the BBC tech writer Bill Thompson (what a picture! I would never be that brave)

    But if we are to push for greater respect for copyright and for digital rights management system among the network community then we need reciprocal action from the rights holders.

    …It is no wonder that the internet community is so suspicious of, and angry with, the rights holders and their defenders when we see this sort of heavy-handed action.

    Yet I still feel that the long-term answer is not be to abandon legally-backed copy protection, but to aim for a more reasonable approach to laws which can, if properly applied, act in the interests of us all.

    Apart from those who see any form of copyright as an infringement of their natural freedom, of course.

  • John Palfrey updates the status of the Massachusetts super-DMCA bill.

  • Slate reviews the interview of the Dixie Chicks by Diane Sawyer last night – well worth a read:

    Last night’s Primetime Thursday, which featured Diane Sawyer interviewing the Dixie Chicks about their recent woes, was one of those broadcast moments that make you want to put your foot through the television….

    …Well, I heard something not quite—what—honorable in Sawyer’s presentation of the affair: an attempt to take a trivial matter that had blown up into an absurd controversy, and blow it up even more under the guise of simply covering the story. Essentially, she asked the women to choose between abasing themselves on national television or stirring up more hatred against themselves. It was a depressing moment in an ugly time.

    For what it’s worth, I have profoundly mixed feelings about the war, and if I were to sit down with Natalie Maines, I’m sure we’d have much to disagree about. But, just so you know, I’m proud that the Dixie Chicks are from Texas. What’s more, I’m embarrassed that Diane Sawyer is a member of my profession.

  • Woo-hoo! Judge: File-swapping tools are legal [via Copyfight; note: Donna’s added analysis and other comments to this link]

    In an almost complete reversal of previous victories for the record labels and movie studios, federal court Judge Stephen Wilson ruled that Streamcast–parent of the Morpheus software–and Grokster were not liable for copyright infringements that took place using their software. The ruling does not directly affect Kazaa, software distributed by Sharman Networks, which has also been targeted by the entertainment industry.

    “Defendants distribute and support software, the users of which can and do choose to employ it for both lawful and unlawful ends,” Wilson wrote in his opinion, released Friday. “Grokster and Streamcast are not significantly different from companies that sell home video recorders or copy machines, both of which can be and are used to infringe copyrights.”

    The opinion. Slashdot discussion: RIAA, MPAA Lose Suit Against Streamcast and Grokster – with an pretty good comment describing how the judge elected to distinguish between Grokster and Napster.

    The Lawmeme writeup: Morpheus wins!Tech Law Advisor’s. More importantly, read Ed Felten’s “instant analysis” – and here’s John Palfrey’s. Hilary Rosen speaks (Cary Sherman only gets the easy press releases?)

    After reading the Grokster opinion, you can read the brief filed today in the Aimster/Deep case – since the tool purports to rely upon encryption to shield all participants in the file exchanges, Grokster and Aimster may share more than just a syllable.

  • I heard an interesting piece on WBUR‘s Morning Edition broadcast this morning describing the role of Clear Channel in the Boston play/musical scene and their efforts to circumvent/break the Actor’s Equity Association. Apparently, Clear Channel has a lot of control over touring productions as well as Boston’s entertainment venues, and increasingly Clear Channel is going with non-equity productions. (I’m listening to it right now at 8:55 AM) I can’t find a useful URL yet, but it’s worth listening for.

  • Today’s Slate has an article about one of the early proponents of copyright term extension; Mark Twain. Although Siva Viadhynathan‘s Copyrights and Copywrongs gives a lot more detail, this piece offers a little insight into the man’s attitudes toward money.

  • John Dean writes about the CARE Act in Findlaw. Interesting topic:

    One of the bill’s provisions has received almost no public attention, yet is very significant indeed. This provision deals with a long existing problem, and is entitled “Enhanced Deduction For Charitable Contributions Of Literary, Musical, Artistic, and Scholarly Compositions.” As its title indicates, this provision seeks to revive – in an appropriately modified form – the tax deduction for artistic works that once existed.

    …The cost of the paper, canvas, paint, clay, stone or artistic materials is usually nominal, and that means that the so-called creative works deduction, after 1969, basically amounted to no deduction at all. The valuation was low – indeed, insultingly low. As a result, many authors, musicians and artists stopped contributing their creative works, letters, research materials, interviews or uncompleted works-in-progress for charitable purposes.

    …In addition to its basic unfairness – the refusal to recognize the value of artists’ and writers’ work – current law also has an inequitable anomaly. The creator, as noted above, can only deduct his or her cost basis. But if a collector acquires such literary or artistic works, then donates it to charity, he or she may take a deduction representing not cost basis, but fair market value.

    Needless to say, fair market value is almost always higher than the actual cost basis of the work. Accordingly, many writers, artists and composers who might otherwise have donated or sold their work are letting them gather dust in their attics to be disposed of when they die. (The value of artists’ work generally rises when they die, and the total number of works they will produce, and their place is history, can be seen.)

    Meanwhile, the public loses access to culturally important materials.

  • This morning’s FoxTrot has serendipitous timing, given yesterday’s Verizon ruling. As does today’s User Friendly.

  • Verizon ruling coverage:

  • This morning’s Globe resurrects the Apple/music industry rumors with comments straight from the horse’s mouth:

    Apple confirms interest in music business

    Apple Computer chief executive Steve Jobs said some of the reports about the company’s interest in the music business are true. ”There have been a lot of rumors about a lot of things the last few weeks … and some of them are true,” he said when asked about reports that Apple wants to buy a music company. Jobs last week commented publicly for the first time on reports that Apple may spend $6 billion to buy Vivendi’s Universal Music Group. ”Apple has never made any offer to invest in or acquire a major music company,” Jobs said. According to a person familiar with the matter, Jobs has expressed interest in acquiring Universal Music, the world’s largest recording company. Such a purchase would provide Apple with a vast collection of songs for the online music service that it is expected to announce next week, analysts say. (Bloomberg)

    A teaser from Billboard: Apple Music Service Trumpets Ease Of Use