June 12, 2003

2003 June 12 [7:46 am]

(entry last updated: 2003-06-12 13:35:36)

  • Mark Mulligan resurfaces with his thoughts on the Apple-Roxio rumor going around.

  • Speaking of Prof. Volokh, Derek’s taken the time to read and summarize some points of the professor’s upcoming law review article.

  • A depressing thought came to me while reading Eugene Volokh’s recent posting on Larry Lessig’s copyright proposal. Prof. Volokh knows that copyright is not a property right, yet he uses a case drawn from property rights to argue that the taking clause would probably not obtain if, upon passage of the Eldred Act, current copyright holders sued to retain the now-current terms of copyright ownership. Is the “copyright=property right” meme that strong? Or are mineral rights somehow appropriate analogs?

    And, more importantly, what’s next in the process of selling this political agenda? In particular, what’s the compelling argument for the public domain, expressible in an elevator speech? (Donna’s thoughts from Copyfight)

  • Donna’s posted a provocative set of links here: Mary’s Back

  • At least his heirs don’t have copyright - a look at the Newton Project, putting Newton’s writings online: Word for Word on the Web, Isaac Newton’s Secret Musings [pdf]

  • Online culture from the NYTimes (again, something I can’t find in the RSS feeds - I’ve got to be missing something here): Voyager to a Strange Planet [pdf]

  • A FindLaw guest commentary on the Dastar decision, with an upbeat perspective on the Supreme Court’s views of the public domain’s importance: In a Trademark Case, The Supreme Court Recognizes That Art Flows From Multiple Sources

  • Hoist by one’s own petard: AICN: who’s a pirate?

  • Piling on: more reasons to be sorry I missed Tuesday’s dinner.

  • Technology Review has this article on Waste: Will ‘Waste’ Push File-Sharing Further Underground? [pdf]

  • Saw this in the dead tree Wired; now it’s online: Bill Gates, Entertainment God. After a chilling "either/or" look at two digital homes, a discussion of Microsoft and the glorious performance of Windows media, leading to this caveat:

    The catch: Your standard digital content (MP3 music files and MPEG-2 video files) becomes Microsoft digital content. These files are backward-compatible and work with other players, like WinAmp, but to get all the benefits, you need Media 9. With this kind of presence - from the server to the media player - the company not only sells more operating systems, it has more control. Specifically, the ability to enable or limit the portability of digital content however it sees fit. Which is where Microsoft’s digital rights management tools come in. Poole’s Digital Media Division spent $250 million developing software that on first glance seems to completely undermine the mission of the Media Center Edition. If the Media Center gives consumers control of their digital media, the DRM software takes it away.

    Microsoft’s DRM allows the studios and labels to inexpensively - thanks to modest licensing fees - put a smart wrapper on their intellectual property. The DRM gift wrap carries instructions that let the gift giver (the content providers) limit or restrict when and where the gift can be opened and how it can be used. For example, Miramax could create instructions that prevent your new Gangs of New York DVD from being archived or streamed. Universal might permit one digital archive copy of a Queens of the Stone Age CD but no burning or sharing.

    With an uphill row to hoe:

    But you can’t have a two-faced job and not make enemies. There’s still an awful lot of Microsoft bashing in Hollywood. “I spent a lot of time with Will, and I just never felt like I had a straight conversation with the guy,” says a former top executive at a content provider. “He would say, ‘We will do this and that, and why don’t you do this,’ and it was always the same thing: ‘Use our stuff; don’t use anybody else’s.’ Microsoft has a tremendous opportunity to be a choke point for personal computers, and they have used every opportunity to take control of that choke point.”

    An anecdote in the article describes a situation that I’m betting no Microsoft executive has ever faced before:

    The relationship between Hollywood and Microsoft, while improving, is fraught with miscommunication and conflict. Consider a meeting that took place at Disney last summer. Poole was hoping to get the company to license Microsoft’s DRM toolkit. In his view, Microsoft was offering to help expand the market for Disney movies and protect them from pirates. The Mouse house seemed open to the notion - and then asked Poole how much Microsoft would pay for the privilege of being able to play Disney content on its devices.

    Puts an interesting spin on this Reuters article on CNet News this morning: MusicNet to adopt Microsoft’s format.

    So, it’s definitely coming; it’s just a question of how intelligently it’s sold to the market. Will the customer know what he’s buying upfront, or will he only discover the limitations post sale? And, how will he react in either case? (See Ed Felten’s postings today and Tuesday for more on the state of play in DRM)

  • Does SCO have the guts/brass to do this: SCO Gives Friday Deadline To IBM is a Slashdot story citing a Reuters report:

    “If we don’t have a resolution by midnight on Friday the 13th, the AIX world will be a different place,” SCO President and Chief Executive Darl McBride told Reuters.

    “We’ve basically mapped out what we will do. People will be running AIX without a valid license,” said McBride, who offered no specific details on what action SCO would take.

  • PBS has posted a Q&A with Larry Lessig of Stanford and Matt Oppenheim of the RIAA on the question "Is downloading copyrighted music tantamount to stealing?". There’s a Slashdot discussion: Lessig And RIAA Answer NewsHour Questions

    I particularly like the way that Matt Oppenheim suggests that "Intellectual property should not be treated any differently than other property." in this response, yet blithely argues that scouring WWW sites for MP3s, wherever they might be, is not a trespass in this response, where he says

    We are not accessing anybody’s “property,” and we are certainly not violating anybody’s personal rights. We are doing exactly the same thing that every other infringer is doing.

    Oppenheim wiggles pretty well when asked how much of the copyright infringement lawsuit awards ends up in the hands of artists. But he also identifies a target that possibly should be higher on our radar in more than one answer (here, for example):

    Under the DMCA, the U.S. Copyright Office examines every three years whether or not this provision requires additional exemptions beyond those built into the statute. To date, nobody has suggested that copy control technologies have locked up a work that should be in the public domain.

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