More Database Piracy FUD

Database piracy plague [Via Ernest, who rightly describes this as "lazy" policymaking]

The reason that you don’t hear about database piracy is that for the most part it isn’t considered piracy at all. In the United States, database piracy is generally not even against the law.

This is a major gap in our intellectual-property laws. There is no serious dispute that intellectual-property laws — such as patent and copyright — are the engine of creation and invention. While reasonable people may therefore disagree about the scope of protection that should exist under the copyright and patent laws, no one seriously disputes that our intellectual property laws play an essential role in encouraging the investment of time and money in protected works and inventions in the first place.

But ever since 1991, when the Supreme Court held that the underlying facts in a database may not be copyrighted at all, database creators have enjoyed little or no intellectual property protection in the creation and maintenance of even the most comprehensive, commercially valuable and publicly useful databases.

Of course, as pointed out in Code, we don’t offer IP protection to cooking recipes, or fashion, either. And, if IP is the (rather than an) engine of creativity, where did these very valuable and useful databases come from in the absence of such protection?

Ernest also points out:

You would think that if these databases were so darn valuable, people could come up with ways to protect them that do not require onerous new law. Here are a few ideas, given away free in the public interest:

Slate on BitTorrent

A terrible frontpage link — Steal Star Wars Faster — takes you to the more moderately named article, Caveat MPAA: Meet BitTorrent, the file-sharing network that makes trading movies a breeze. You have to read all the way to the end to get the punchline:

When Lucas’ lawyers come to wipe out the rebel alliance of Star Wars fans—and they will—let’s hope they don’t try the usual tactic of nuking the network to do it. Ditto for the Motion Picture Association of America, which has already sent a few infringement notices to BitTorrent users and has mumbled vague threats about prosecution. BitTorrent isn’t just another file-sharing network. Cohen’s design serves to speed up the Internet, making DVD-sized downloads possible. There are lots of uses for that, and for once we can say it with a straight face: Most of them are legal.

Some SCO News

I assume that you’re checking into GrokLaw is you’re really interested, but here are two Slashdot stories that can get you a snapshot of what’s happening lately

  • One of the companies that went ahead and bought SCO’s license in the face of their threats has to deal with their customers’ response to their action: EV1 Servers CEO Responds To Customers

  • And the claimed suit of a Linux user is coming: SCO Says They’ll Sue A Linux User Tomorrow. Note that the cited article doesn’t mention it, but the more recently updated CNet News article indicates that SCO will start with one of their licensees, based on the additional contractual leverage the license gives them — then review the preceding article.

    The first target will be a company that has a Unix license from SCO already, giving SCO some contractual leverage in the case. McBride said. In addition, the suit will involve copyright infringement claims.

Another Take on Bershire Systems

Recall Ernest’s discussion of what Berkshire Systems really addresses and see this SecurityFocus article over at The Register: Is password-lending a cybercrime? — taking the analysis into another direction than Ernest’s, albeit closing with a similar call for legislative clarification

In a little-observed civil lawsuit involving tracking of magazine subscriptions, a federal court in Manhattan issued a ruling last week that could theoretically result in prosecutors going after people who use another person’s password and userid with their permission, but without the permission of the issuer.

[…] The court reasoned that using the userid and password in violation of a contractual provision was an unauthorized access.

The fallacy of this decision becomes clear if you consider that the customer himself could have logged in with his or her password, obtained the documents and records, and given them to Berkshire – and this would have been a simple breach of contract, not a crime.

For background, you may with to consider The Right To Read

And On Another Front

MP3 getting antipiracy makeover

Thomson and Fraunhofer, the companies that license and own the patents behind the MP3 digital music technology, are in the midst of creating a new digital rights management add-on for the popular format, a Thomson executive said Tuesday.

[…] But the same features that made MP3 attractive to tens of millions of ordinary computer users made the big record labels deeply suspicious of the format. For years, they’ve been looking for a digital song format that would include tools to prevent people from making unauthorized copies or swapping tunes on networks like Kazaa.

Microsoft, with its Windows Media and associated digital rights management technology, has been one big beneficiary of that, with its format used in Napster, Musicmatch and other song stores and bundled on physical CDs. Apple’s own Fairplay copy protection tools have also won the big record labels’ approval and form the heart of the company’s iTunes Music Store.

Thomson and Fraunhofer’s rights management technology will be based in large part on open standards the MPEG group and the Open Mobile Alliance are adopting, Caldwell said. The companies will provide free use of the copy protection technology to anyone who licenses the MP3 format, he said.

Hmmm – think they’ll still call it "MP3?" And will the market believe them if they do? What about truth in labeling?

Update: Slashdot — DRM Technology To Be Added To MP3 Format

This apparently simple post generates some particularly appropriate discussion:

More insidious (Score:5, Insightful)

by nuntius (92696) on Monday March 01, @10:10PM (#8436534)


Is when MS Media Player (or even Windows) automatically “upgrades” your MP3’s for you. Unless you had good backups, all your MP3’s are now DRM enabled.

Re:More insidious (Score:5, Insightful)

by Aneurysm9 (723000) on Monday March 01, @10:29PM (#8436690)

No, it’s modded insightful because it offers *insight* into the dangers posed by technology when our own software can be used against us. The same could be said of Apple or Real or WinAMP any of the other closed-source media player providers. If we don’t know what our software is doing there’s nothing preventing it from appropriating our own content from us. To extend the GP’s fear, what happens when I play an MP3 of my own music and a media player wants to add DRM to it? Who gets the right to tell me where and how I can use my own creation?

Re:More insidious (Score:5, Insightful)

by timeOday (582209) on Monday March 01, @10:30PM (#8436692)

Why is this tripe moderated insightful? Because it bashes MS and has some absurd theory in it?

Or is it because Microsoft explicitly reserves the right [] to pull this kind of crap?

Update from The Register: MP3 DRM to demo at CeBIT

And the Beat Goes On

HP Announces Moves in Digital Rights Management (Reuters feed also at CNet News)

Hewlett-Packard Co. (NYSE:HPQ – news) said on Monday it had licensed digital content protection technology from chipmaker Intel Corp. (NasdaqNM:INTC – news) and developed copy protection technology with Philips PHG.AS PHG.N as the printer and computer maker seeks to stake out a strong position in the nascent arena of digital copyright protection.

Palo Alto, California-based HP said that it had licensed Intel’s high-bandwidth digital content protection technology, which is designed to ensure that video cannot be intercepted and recorded as its travels between devices, such as between a personal computer and a TV display screen.

Felice Swapp, who heads up much of HP’s digital rights management work, said that the Intel technology is invisible to consumers, and that it made more sense for HP to license that technology from Intel rather than to develop it itself and possibly create a competing standard. (emphasis added)

"Invisible to consumers," maybe, but what about the rest of us?

SF Mercury News Op-Ed on 321 Studios Decision

What copy rights?

Sure, you can hold a video camera up to the TV and make a poor-quality duplicate of a DVD. Or, with an eBook, write out a copy longhand. To the judges, that would satisfy fair use: There’s no constitutional guarantee, they said, to make perfect duplicate copies. Such a narrow view, while pleasing copyright holders, denies consumers huge benefits of digital technologies. Movie studies and recording companies can write software protections that permit personal copies and other fair uses; they simply choose not to, and Congress, by banning circumvention technologies, has let them get away with it.

Larry Lessig’s Eldred Post Mortem

[Via Ernest] How I Lost The Big One from Legal Affairs. A look at a painful learning process, one that I hope he will stop flagellating himself about now that he has undertaken this very public one — albeit mixed with what I sense is the smoke from a burning bridge.

The mistake was made early, though it became obvious only at the very end. Our case had been supported from the very beginning by an extraordinary lawyer, Geoffrey Stewart, and by the law firm he had moved to, Jones, Day, Reavis & Pogue. There were three key lawyers on the case from Jones Day. Stewart was the first; then, Dan Bromberg and Don Ayer became quite involved. Bromberg and Ayer had a common view about how this case would be won: We would only win, they repeatedly told me, if we could make the issue seem “important” to the Supreme Court. It had to seem as if dramatic harm were being done to free speech and free culture; otherwise, the justices would never vote against “the most powerful media companies in the world.”

I hate this view of the law. Of course I thought the Sonny Bono Act was a dramatic harm to free speech and free culture. But I was not persuaded that we had to sell our case like soap. In any event, I thought, the court must already see the danger and the harm caused by this sort of law. Why else would the justices have granted review?

[…] My anger with the conservatives quickly yielded to anger with myself. For I had let a view of the law that I liked interfere with my view of the law as it is.

Most lawyers and law professors have little patience for idealism about courts in general and this Supreme Court in particular. Most have a much more pragmatic view. As I read back over the transcript from that argument in October, I can see a hundred places where the answers could have taken the conversation in different directions, where the truth about the harm that this unchecked power will cause could have been made clear to this court. Kennedy in good faith wanted to be shown. I, idiotically, corrected his question. Souter in good faith wanted to be shown the First Amendment harms. I, like a math teacher, reframed the question to make the logical point. I had shown them how they could strike down this law of Congress if they wanted to. There were a hundred places where I could have helped them want to, yet my stubbornness, my refusal to give in, stopped me. I have stood before hundreds of audiences trying to persuade; I have used passion in that effort to persuade; but I refused to stand before this audience and try to persuade with the passion I had used elsewhere. It was not the basis on which a court should decide the issue.

Update: See Ernie’s comments

Dave Winer Nails It

In response to Bill Gates’ taking his show on the road to get people to stick with computer science, Dave Winer posts a succint explanation of the problem (and a summary of The Future of Ideas)

Yeah, you kill all the competition and then the talent pool dries up. People were choosing computer science as a career because they hoped to be the next Bill Gates, not because they wanted to work for Bill Gates.