Well, Of Course

Are you really surprised? It is their mission, after all. N.S.A. Foils Much Internet Encryption [pdf]

The agency has circumvented or cracked much of the encryption, or digital scrambling, that guards global commerce and banking systems, protects sensitive data like trade secrets and medical records, and automatically secures the e-mails, Web searches, Internet chats and phone calls of Americans and others around the world, the documents show.

Many users assume — or have been assured by Internet companies — that their data is safe from prying eyes, including those of the government, and the N.S.A. wants to keep it that way. The agency treats its recent successes in deciphering protected information as among its most closely guarded secrets, restricted to those cleared for a highly classified program code-named Bullrun, according to the documents, provided by Edward J. Snowden, the former N.S.A. contractor.

Larry’s Picked An Interesting Fight

Online lecture prompts legal fight on copyright: Harvard’s Lessig, Australian record company battle over use of song [pdf]

But that is exactly what Australian record company Liberation Music did when it threatened to sue Lessig, a leading scholar of Internet law and an advocate for fewer copyright restrictions, for allegedly violating its rights by using music from the hit song “Lisztomania” by French pop band Phoenix during a lecture.

Liberation Music claimed to own the license for the 2009 song, which became so popular that fans, college students, and choruses from around the world made their own dance videos to the music and posted them on YouTube, creating something of a global Internet phenomenon.

Lessig used the phenomenon and excerpts from the dance videos in a 2010 lecture that he recorded and also posted to YouTube, prompting the legal warning from Liberation Music.

Now, Lessig is fighting back with his own legal action.

So, an interesting challenge, in that there is, first, the overall “fair use” doctrine — a nice idea, but one that means that a definitive finding of fair use, should there be a disagreement, requires an adjudicated review; second, there is legislation ensuring fair use in academic use, thus taking some of the transactional costs of adjudication off the table; and, third, there is an open question on what happens when one digitizes and distributes academic material containing copyrighted materials whose use in that context would ordinarily be considered to be covered under fair use.

It’s been a challenge for academic institutions moving instruction online, and should be a great fight, since Larry has been passionate about this.

Finally, it’s worth thinking about the distinctions between this approach to tackling copyright injustices and that of Aaron Swartz.

Later: When even John Sununu takes time out from using his guest Tea-Party-rousing-columnist role at the Boston Globe to agree with Larry, you know that Liberation Music has really stepped in it: Music dinosaurs pick a bad fight [pdf]

I Enjoyed This Immensely

From David Carr, calling a spade a spade: Self-Serving War of Words by 2 Giants in Television [pdf]:

We know that you are fighting over lucre, not our inalienable rights as cable consumers. Pretending that you are fighting on our behalf rather than in the interests of your shareholders and executives is infantilizing and unbecoming. CBS is coming off another record year, Time Warner Cable’s stock is storming along, and the fight over retransmission fees is about how the pie is sliced, nothing more.

BRCA1 and BRCA2 Cannot Be Owned

Even if they have value: Association for Molecular Patholody v. Myriad Genetics, inc.

Respondent Myriad Genetics, Inc. (Myriad), discovered the precise location and sequence of two human genes, mutations of which can substantially increase the risks of breast and ovarian cancer. Myriad obtained a number of patents based upon its discovery. This case involves claims from three of them and requires us to resolve whether a naturally occurring segment of deoxyribonucleic acid (DNA) is patent eligible under 35 U. S. C. §101 by virtue of its isolation from the rest of the human genome. We also address the patent eligibility of synthetically created DNA known as complementary DNA (cDNA), which contains the same protein-coding information found in a segment of natural DNA but omits portions within the DNA segment that do not code for proteins. For the reasons that follow, we hold that a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but that cDNA is patent eligible because it is not naturally occurring. We, therefore, affirm in part and reverse in part the decision of the United States Court of Appeals for the Federal Circuit.

A Nice Bit on the Impact of “First Sale”

In a Copyright Ruling, the Legacy of the Betamax [pdf] (See Justices Permit Resale of Copyrighted Imports [pdf])

Before Napster and LimeWire, before Megauploads and the Pirate Bay, media companies’ epic struggle against copying, piracy and generally losing control over their creations can be traced to a legal fight more than 30 years ago over a device that has long since passed on to the great trash heap in the sky: the Sony Betamax.

[…] Last week, the Supreme Court made another call that could have equally far-reaching implications. The ruling referred only to printed books, another technology that predates the Internet. Yet it, too, is likely to reshape the information economy in unexpected ways.

In a 6-to-3 decision, the court took sides with Supap Kirtsaeng, a Thai math student at Cornell who generated roughly $900,000 in revenue reselling in the United States cheap textbooks that his friends and relatives sent from Thailand.

[…] The decision picks at the scab of an argument that has raged since the first copyright law was enacted in 18th-century Britain: how to balance the interest of copyright holders to profit from their creations — giving them an incentive to create more — against the social goal of promoting access to the movies, books and software programs they create.

Like the Betamax decision in 1984, the Supreme Court’s ruling last week underscores the challenges placed by globalization and information technology on the very idea of protecting intellectual property. It adds to a maze of laws, legal decisions and technological barriers governing what companies and people can do with their stuff in the new economy. And it will probably change the way companies deliver media.

Kirtsaeng v. John Wiley & Sons, Inc. [local copy]; see also Imagining a Swap Meet for E-Books and Music [pdf]

Nothing New Here, But Nice To See It’s Getting Attention Again

From “The Copyright Rule We Need to Repeal If We Want to Preserve Our Cultural Heritage” [pdf] — critiques familiar to those who complained about the DMCA when it was first proposed.

Opponents of the DMCA anti-circumvention provision claim that the law threatens consumer control over the electronic devices we buy, and they’re right. But the stakes are much higher than that. Our cultural history is in jeopardy. If the DMCA remains unaltered, cultural scholarship will soon be conducted only at the behest of corporations, and public libraries may disappear entirely.

That’s because the DMCA attacks one of the of the fundamental pillars of human civilization: the sharing of knowledge and culture between generations. Under the DMCA, manmade mechanisms that prevent the sharing of information are backed with the force of law. And sharing is vital for the survival of information. Take that away, and you have a recipe for disaster.

[…] The anti-circumvention provision of the DMCA was created primarily to protect DVDs; it did not anticipate our rapid shift to media-independent digital cultural works, so it is absurdly myopic when it comes to digital preservation.

To properly preserve digital works, libraries must be able to copy and media-shift them with impunity. It may sound strange, but making a DRM-free copy of a digital work is the 21st century equivalent of simply buying a copy of a paper book and putting it on a shelf. A publisher can’t come along and take back that paper book, change its contents at any time, or go out of business and leave it unscrambled and unreadable. But publishers can (and have done) all three with DRM-protected works.

So why don’t librarians just defeat DRM, as it is often possible to do, and jailbreak Kindles and iPads to collect these materials? Because it’s illegal, of course. And if these chronically under-funded institutions want to keep their funding, they need to stay above the board.

Surveillance Forever!

Clapper v. Amnesty International — apparently, “chilling effects” are not sufficient to give standing when seeking an injunction against sweeping surveillance.

[…] Respondents — attorneys and human rights, labor, legal, and media organizations — are United States persons who claim that they engage in sensitive international communications with individuals who they believe are likely targets of §1881a surveillance. On the day that the FISA Amendments Act was enacted, they filed suit, seeking a declaration that §1881a is facially unconstitutional and a permanent injunction against §1881a-authorized surveillance. The District Court found that respondents lacked standing, but the Second Circuit reversed, holding that respondents showed (1) an “objectively reasonable likelihood” that their communications will be intercepted at some time in the future, and (2) that they are suffering present injuries resulting from costly and burdensome measures they take to protect the confidentiality of their international communications from possible §1881a surveillance.

Held: Respondents do not have Article III standing. […]

[…] ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

Something For Fans of Ken Oye’s “Uncle Fred” Story

Tests in Mice Misled Researchers on 3 Diseases, Study Says [pdf]

The paper, published Monday in the Proceedings of the National Academy of Sciences, helps explain why every one of nearly 150 drugs tested at huge expense in patients with sepsis has failed. The drug tests all were based on studies in mice. And mice, it turns out, have a disease that looks like sepsis in humans, but is very different from the human disease.

[…] The researchers found some interesting patterns and accumulated a large, rigorously collected data set that should help move the field forward, said Ronald W. Davis, a genomics expert at Stanford University and a lead author of the new paper. Some patterns seemed to predict who would survive and who would end up in intensive care, clinging to life and, often, dying.

The group had tried to publish its findings in several papers. One objection, Dr. Davis said, was that the researchers had not shown the same gene response had happened in mice.

[…] The study’s investigators tried for over a year to publish their paper showing that there was no relationship between the genetic responses of mice and those of humans. They submitted it to the publications Science and Nature, hoping to reach a wide audience. It was rejected from both.

Science and Nature said it was their policy not to comment on the fate of a rejected paper, or whether it had even been submitted to them. But, Ginger Pinholster of Science said, the journal accepts only about 7 percent of the nearly 13,000 papers submitted each year, so it is not uncommon for a paper to make the rounds.

Still, Dr. Davis said, reviewers did not point out scientific errors. Instead, he said, “the most common response was, ‘It has to be wrong. I don’t know why it is wrong, but it has to be wrong.’ ”

“Kopism”

In Sweden, Taking File Sharing to Heart. And to Church. [pdf]

People almost everywhere are file sharing these days, using computers to download music, films, books or other materials, often ignoring copyrights. In Sweden, however, it is a religion. Really.

Even as this Scandinavian country, like other nations across Europe, bows to pressure from big media concerns to stop file sharing, a Swedish government agency this year registered as a bona fide religion a church whose central dogma is that file sharing is sacred.

“For me it is a kind of believing in deeper values than worldly values,” said Isak Gerson, a philosophy student at Uppsala University who helped found the church in 2010 and bears the title chief missionary. “You have it in your backbone.”