Copyrightings

More Blogging Over at Techdirt

2008-08-11T08:30:00.003-05:00

Although I continue to blog at Blurring Borders, I've also been doing some guest posts at Techdirt. If you don't already read Techdirt, I'd recommend subscribing.

Some recent posts:

Blurring Borders

2008-07-13T19:02:00.002-05:00

As you can tell, Copyrightings hasn't been receiving much attention recently. Instead, I've migrated to Blurring Borders which allows me to discuss a broader range of topics (though I still touch on Internet law). Head on over to check it out!

Berkman@10 Media

2008-05-17T00:35:00.003-05:00

As you can imagine, much digital content was created during the Berkman@10 Conference. Some you might want to check out:

Someone piped a bunch of content together into an RSS feed, here.
Tweets from the event, which were great for archival purposes, are aggregated here.
Flickr photos are tagged here.
Blog posts tagged are here.

I'm sure there is plenty I'm missing, but these should be interesting.

Berkman@10 Conference: Day 1

2008-05-15T15:50:00.006-05:00

Yesterday I attended the 10th anniversary conference of Harvard University's Berkman Center for the Internet and Society. The conference is a two day event bringing together the thought leaders in Internet studies and action. The agenda includes workshops, lectures and panels examining "The Future of the Internet" including the political, organizational, commercial and educational aspects.

Here are some rough observations, thoughts and links:

Session 1 was a speech by Jonathan Zittrain about his new book, The Future of the Internet and How to Stop It (previously covered here). JZ, as he is known, is hilarious and insightful. He sees the rise of 'sterile' devices where users cannot invent new uses, such as the iPhone or TiVo, as dangerous to that which makes the Internet so great. 'Generative' devices, like your PC or the Internet, allow much more creativity and value-addition. JZ points out that there are ways of non-binding social norm enforcement to combat the threats to privacy and security; these are the solutions he hopes to see.

Session 2 was a session led by John Palfrey discussing the implications for politics. Palfrey wonderfully tied together multiple topics in a succinct matter. He highlighted the work of Ethan Zuckerman, Beth Kolko and John Kelly.

I've been a fan of Ethan's work for a long time. In addition to the terrific blog he writes, Ethan co-founded Global Voices which aggregates foreign language blogs to give the world a better view of what is happening around the world. In his words, "blogs are a tool for international understanding." He lamented the lack of readers of foreign voices; that is, people still only pay attention to mainstream media, not the bountiful media coming from the people in the developing world.
Beth Kolko spends a lot of her time in the developing world studying how the people there use ICTs. She does not see them as a panacea, but does think that if we study the developing world's use of technology, we will glimpse the future of our uses. I will have more to say about her work tomorrow when I attend a session led by her.
John Kelly studies how online communities interact. He spoke about mapping the Iranian blogosphere which is shown below. The different colors represent different areas of coverage while the size is indicative of incoming links. I was reminded of Ethan's recent musings on homophily, which is the tendency for people to surround themselves with similar folks. If you believe, like I do, that humans can understand each other, given the opportunity, homophily can be a worrying trend. I was drawn to the outlying dots, those bloggers who, for some reason, are active across areas of coverage.

Session 3 was a conversation between Yochai Benkler and Jimbo Wales about Cooperation. Wales admitted that Wikipedia was the stupidest idea at the time; most people thought it was senseless to think we could cooperate, online of all places, to create a free Wikipedia rivaling the authoritative source of Britannica. However, something worked and the two spent time discussing what that was - neutrality, openness, transparency, share motivation, human agency, among others. The answer to this motivational question is complicated and unclear, but we know it works, so Yochai wants to study it.

The final session was a panel with Berkman Center co-founder Charlie Nesson, Internet visionary Esther Dyson, former FCC chairman Reed Hundt and head counsel of Viacom Michael Frisklas.

Nesson began by equating Universities with Viacom because they are both large holders and creators of content. However, Universities are unable, for the most part, to disseminate their content due to the high transaction costs from copyright. When he asked Frisklas if, were they starting with a blank legal slate with today's technological advancements, would he support the current copyright architecture, the Viacom attorney accepted the many problems with the current regime, but acknowledged the pain of switching (mostly to his business...).

An interesting debate sprung up around Hundt's comment that although the price of hardware has fallen due to Moore's law, software has remained constant in cost for 20 years. The relative affordability of hardware is what makes the Internet (and cloud computing) the viable platform for this field. Hundt claimed that his high software cost kept the developing world offline (and that Linux was a response to this). Dyson disagreed, saying that in her experience poor people can steal software easily; it is the still costly computers which keep them offline.
Importantly, Dyson pointed out the difference between information access and the process of teaching. Open access is not a panacea (but it is a good start, in my opinion).
Finally, a very good question from the audience asked us to listen to the third world as opposed to pontificate on it from our point of view.

The day was full of thought-provocation and today, which I will write up shortly, has been much of the same. Be sure to check out the Berkman Center and its amazing work.

Zittrain Discusses His New Book "The Future of the Internet"

2008-04-24T18:18:00.002-05:00

Jonathan Zittrain is the author of a new book entitled "The Future of the Internet and How to Stop It." In it he discusses the implications of complete openness and why a "generative" Internet must be actively protected from sterile, closed platforms like the iPhone. In this interview, which is remarkably well done by a mainstream reporter, Zittrain explains the book.

I hope to read the work this summer; it looks fascinating.

On a related note, Zittrain co-founded the Berkman Center for Internet and Society at Harvard Law School. I'll be attending their 10 year anniversary conference next month and the agenda is great, so I recommend you check it out.

Senate Hearing on Net Neutrality

2008-04-22T15:25:00.003-05:00

Today the Senate held a hearing on network neutrality attended by, among others, FCC Chairman Kevin Martin and Lawrence Lessig. In general Democrats are recognizing that a set of sound principles is needed to assure a consistent end-to-end network. The Republican, on the other hand, think net neutrality would stifle innovation and investment through burdensome regulation. Ars Technica has good coverage:

Recognizing the unintentional problems that regulation can create, Kerry called for "principles, not nitpicky regulatory structure."
Dorgan, one of the co-sponsors of a network neutrality bill still pending in the Senate, likewise was incredulous that anyone could consider this some kind of intrusive government interference. "Who on earth is standing up for discrimination?" he thundered.

Well, Ted Stevens (R-AK) is, for one. Though he said little at the hearing, the octogenarian did offer his brief take on network neutrality: "extensive regulation of the Internet, that's what net neutrality means to me." Pithy.

73.2% of Linux Edits are Corporate in Origin

2008-04-21T00:37:00.005-05:00

Via Nicholas Carr, a recent survey of the changes to Linux over the past three years shows that 73.2% of the changes to the kernel are from corporations (IBM, Red Hat, Novell, etc.). Carr sees this as the triumph of the market enclosing the free labor of peer production.

The shift in Linux kernel development from unpaid to paid labor, from volunteers to employees, suggests that the Net doesn't necessarily weaken the hand of central management or repeal old truths about business organization.

I think this is a notable occurrence, but not entirely unforeseeable. These corporations have a high incentive to improve Linux due to their reliance on it. However, it is still interesting that these disparate organizations are working together through often informal chains to create something of such value.

Although it dealt with websites, this could also serve to influence the outcome of the Carr-Benkler Wager.

I'll be sure to update this post as others weigh in with more enlightened views.

Quote of the Day

2008-04-20T23:13:00.003-05:00

In reading for my economic development course, I came across the following quote from Joseph Stiglitz, former Chief Economist of the World Bank and Chairman of Clinton's Council of Economic Advisors:

The Uruguay Round TRIPs Agreement, which is Trade-Related Intellectual Property, has nothing to do with trade. They just put "trade-related" because they had to put that in there to have it in a trade agreement. That was the real ingenuity.

There was already an intellectual property organization, called WIPO, the World Intellectual Property Organization. But they wanted the trade ministers to do it because the trade ministers didn't know anything about intellectual property, and that meant they were much more vulnerable to the influences of the special interests.

They put in provisions that were explicitly designed to reduce access to generic medicines. Just to highlight why that's important, a generic AIDS medicine, for instance, costs under $300 for a year's treatment. The brand name is $10,000. If your income is $500 a year or $300 a year, or even $5,000 a year, you can't afford $10,000 a year for the brand name. So when they were signing that agreement in Marrakesh, they were signing the death warrants for thousands of people in sub-Saharan Africa. That was the consequence.

This is a pretty damning indictment of international intellectual property agreements.

Nelson Pavlosky Speaks at Georgetown

2008-04-10T15:19:00.001-05:00

As a student at Swarthmore, Nelson Pavlosky sued Diebold (the voting machine manufacturer) for abusing copyright. His case set an important precedent for free speech in the digital age. He would go on to form the international Students for Free Culture organization, of which Georgetown's chapter is the newest.

On Wednesday, April 16th at 7:15 in Healy 103 Nelson will be speaking at Georgetown University. His talk will cover free speech, the DMCA, open source, fair use and the Free Culture movement. See more about him here. Join the Facebook event here.

Again, all are invited and should contact me at georgetownfreeculture (at) gmail.com with any questions.

&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;small&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;a style="color: #0000ff; text-align: left" xhref="http://maps.google.com/maps/ms?ie=UTF8&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;hl=en&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;t=h&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;msa=0&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;msid=113790525593209553689.00044a032328160d3a9f1&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;ll=38.907173,-77.073555&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;spn=0.00516,0.008261&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;source=embed" mce_href="http://maps.google.com/maps/ms?ie=UTF8&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;hl=en&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;t=h&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;msa=0&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;msid=113790525593209553689.00044a032328160d3a9f1&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;ll=38.907173,-77.073555&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;spn=0.00516,0.008261&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;source=embed" &amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;View Larger Map&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;/a&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;/small&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;

Georgetown Students for Free Culture

2008-04-03T22:05:00.004-05:00

I am currently a freshman at Georgetown University in Washington, DC and have started the campus chapter of Students for Free Culture.

This Wednesday, April 9th, we are showing the documentary film "Freedom of Expression" in Healy Hall 103 on campus. The film will start at 7:30pm.

Description

In 1998, university professor Kembrew McLeod (Associate Professor of Communication Studies at the University of Iowa) trademarked the phrase “freedom of expression” — a startling comment on the way that intellectual property law restricts creativity and the expression of ideas. This provocative and amusing documentary explores the battles being waged in courts, classrooms, museums, film studios, and the Internet over control of our cultural commons. Based on McLeod's award-winning book of the same title, Freedom of Expression® charts the many successful attempts to push back the assault on free expression by overzealous copyright holders. Freedom of Expression® is an essential tool for educators, activists, filmmakers, students, artists, librarians, and more.

All are welcome, so any DC-area readers who would like to come are more than welcome. The embedded map should help you find the room, but if you have any questions, email me at kevin (at) copyrightings.com

View Larger Map

The Real Danger of Wiretapping

2008-03-18T17:42:00.002-05:00

Julian Sanchez has an Op-Ed at the LA Times which does a wonderful job reframing the debate over government wiretapping. The majority of the time the debate over government surveillance is considered a trade-off between privacy and security. Julian, however, points to the fact that the weight of history suggests the real value to be lost is political freedom and democracy.

Citing examples throughout the 20th Century, Julian notes that "Without meaningful oversight, presidents and intelligence agencies can -- and repeatedly have -- abused their surveillance authority to spy on political enemies and dissenters."

Have a read.

Chinese Censorship during Tibetan Protests

2008-03-17T10:00:00.004-05:00

My interest in copyright reform stems from a larger desire to see the possibilities of technology recognized. One such possibility is that of free expression through the internet and other technologies. However, as my recent post on Chinese censorship points out, the decentralization of the internet doesn't mean that control isn't possible.

In recent days the Tibetan minority in China has been the subject of a massive censorship effort by the Chinese authorities. For one, YouTube is blocked. Now, Global Voices co-founder Rebecca MacKinnon is reporting via numerous sources of the common sentiment throughout China that the Tibetans are "ungrateful minorities" who are without legitimate causes for complaints.

The filtered text messages from Tibet, shut down chat rooms and blocked images are all misuses of technologies if you care about access to information, political plurality and freedom of speech. Davesgonechina is calling for those who care about these concepts to engage Chinese citizens via the internet. Perhaps it is the only way we can change China - from within.

Is the DMCA Still Relevant?

2008-03-04T15:59:00.004-06:00

Over at Info/Law Tim Armstrong wonders whether or not the DMCA is still relevant. His key historical analogy is to 1992 Audio Home Recording Act whose provisions drove the DAT format into obscurity. Today, though the AHRA is still a valid law, it holds little power because DAT is dead.

Armstrong thinks that the DMCA may be heading the way of the AHRA because (1) DMCA-related cases are decreasing in frequency, (2) DRM has been (rightly) vilified and (3) DRM is being dropped by a number of industries.

I think he may be right noting that Section 1201 of the DMCA has diminished importance. After all, §1201 what written to stop users from circumventing DRM and as DRM goes to the grave, it will be of little importance.

However, I think he misses two important points: the historical significance of §1201 and the continuing significance of the rest of the DMCA.

For the past decade, content has been sold which is locked into proprietary formats by DRM. Future users will be breaking the law if they have to unlock the content to use in future machines. Just look at HD-DVD and Blu-Ray - consumers stuck with HD-DVDs and players now have soon-to-be useless pieces of plastic because they chose the losing side in the proprietary format war. If, like the AHRA, the DMCA stays on the books, freeing DRM'd material will still be illegal.

Secondly, the DMCA is much more than just §1201. For example, Section 512 forces internet service providers to remove any offending material if they are notified by copyright owners. In the past, this notice and takedown provision has been used to silence critics as reported here and fought by the EFF. Even if portions of the DMCA lapse into obscurity, it remains a potent law with chilling effects.

Clay Shirky on Love and Longevity

2008-03-04T14:25:00.004-06:00

Amazing (short) video by Clay Shirky who has a new book.

The Great Firewall of China

2008-03-02T23:23:00.004-06:00

The Atlantic has a great story clearing up a lot of the misconceptions about the Chinese government's internet censoring efforts. The net has been heralded as a tool for freedom of speech and expression, yet censoring and filtering has been rampant in countries like China, Saudi Arabia and Singapore. The OpenNet Initiative covers many of these efforts.

Anyways, The Atlantic's story says that the Chinese effort is much more complicated and less effective than presumed. In effect, what the authorities have done is introduce a surmountable barrier which serves to focus the Chinese in on themselves:

All the technology employed by the Golden Shield, all the marvelous mirrors that help build the Great Firewall—these and other modern achievements matter mainly for an old-fashioned and pre-technological reason. By making the search for external information a nuisance, they drive Chinese people back to an environment in which familiar tools of social control come into play.

Comcast's Revolting Tactics

2008-02-26T15:57:00.003-06:00

Yesterday a really important meeting was held at Harvard to discuss net neutrality. Among the speakers were FCC Chairman Kevin Martin, US Rep. Markey, Yochai Benkler and David Cohen, EVP of Comcast.

Comcast's throttling of BitTorrent traffic was the impetus for this meeting and they were obviously under fire from a lot of powerful critics. At this open meeting, Comcast did something so despicable that I would cancel any money I pay them, did I actually pay them for anything.

After rumors swirled throughout the meeting that Comcast had paid disinterested people as seat-fillers, they finally came out an confirmed that, in fact, they did. Truly interested individuals were blocked from entering as these paid seat-warmers slept through the important meeting. See here and here.

Head over here to contact Comcast and let them know how ridiculous their tactics are.

Draft Lessig

2008-02-16T09:54:00.004-06:00

Lawrence Lessig is my intellectual hero. His books opened my eyes to this topic of copyright reform and have shaped my interests for the past 4 years. Last year, he announced that he would be shifting his focus of study away from copyright to political corruption. This was a great loss for the community, but terribly important for the country.

Now, following the death of Lessig's Congressman Tom Lantos, a movement has started to "Draft Lessig" into the special election being held April 8th. The Facebook group already has 1,000 members.

In an age when Congress is making wrongheaded decisions involving Constitutional matters, it is of the utmost importance to have someone of Lessig's intellect, honesty and knowledge in Congress. Let's hope he runs.

Meanwhile Across the Pond

2008-02-13T20:25:00.002-06:00

The Guardian reports that in the UK,

"The government has devised an electronic database to track every teenager from the age of 14, recording their personal details, every exam result and exclusions. The database will be accessible to employers, teachers and training agencies, and will include an online CV. The record will be permanent."

Obviously this is contingent to their ability to gather that information. Luckily most of it is already given to the government and that which isn't, I'm sure their US colleagues would love to give it to them.

So much for youthful indiscretion remaining in youth...

The Senate Surrenders Its Duty to America

2008-02-12T12:15:00.000-06:00

I think now, after the Senate has voted to immunize the telecom companies from judiciary oversight, is the time to recall the words of Yale Law Professor Jack Balkin:

"Do not be mistaken: We are not hurtling toward the Gulag or anything that we have seen before. It will be nothing so dramatic as that. Rather, we are slowly inching, through each act of fear mongering and fecklessness, pandering and political compromise, toward a world in which Americans have increasingly little say over how they are actually governed, and increasingly little control over how the government collects information on them to regulate and control them. Slowly, secretly and imperceptibly, the mechanisms of government surveillance are being freed from methods of political control and accountability; and the liberties of ordinary citizens are being surgically removed under a potent anesthesia concocted from propaganda, fear, ignorance and apathy."

I Have a Dream

2008-02-03T15:00:00.000-06:00

I am a constitutionalist. Specifically, I think the American Constitution is an awe-inspiring document of magisterial purpose and effect. More generally, I think thoughtful political and philosophical understanding can lead to foundations for governance which will lead to more just and peaceful societies.

In the American Constitution, as many know, resides the cornerstone of intellectual property law. Article I, Section 8 includes the uniquely specific clause allowing Congress to "To promote the progress of science and useful arts, by securing for limited times to authors and i nventors the exclusive right to their respective writings and discoveries."

Though statutory updates have diluted the purpose, it remains clear: copyrights and patents exist to provide incentives for creators.

Today, while watching Lewis Hyde's presentation on the cultural commons, I learned that Martin Luther King, Jr.'s creative works are under copyright. While this isn't surprising in itself, apparently the King family aggressively protects the copyrights to such works as the Reverend's famed "I Have a Dream" speech. In fact, it has gone so far in the past as to sue USA Today for reproducing the speech.

This isn't because they don't want people to hear the content or the important message, it is because they want to monetize it. This older Washington Post article covers the past uses of MLK, Jr.'s work for enrichment of the family. In 1997, they raised the ire of a number of people when they struck a multi-million dollar deal with Time Warner to sell audio tapes and books of his work.

Insofar as the family is acting within the law, I have no problem. However, the law which allows them to do so is at serious odds with the Constitution and common sense. For one, they claim that deals such as the Time Warner one "would... bring King's message to a wider audience." This is dishonest and wrong. MLK needs no distribution that the Internet cannot provide. Making his work commercial does nothing more than raise the cost of accessing his historic work and thus disenfranchising those who want to learn about the struggle to which he devoted his life.

Secondly, this serves to show how overtly at-odds with the Constitution our current copyright regime is. Martin Luther King, Jr. did not need a monetary incentive to write his speeches. Like all humans, he was diversely motivated. The inequity of America and his desire to change it, his dream, as it were, was motivation enough. The fact that his heirs, who did not create the work, are able to limit access is infuriating.

The "I Have a Dream" speech and other creative, political expressions of MLK, Jr. are indisputably the "useful arts" that the Framers wanted to encourage. Yet it is the tragedy of our day that those same Framers who wanted limited intellectual monopoly rights have seen their dream turn into today's copyright nightmare.

Ben Franklin on Intellectual Property

2008-02-03T14:40:00.000-06:00

In his Autobiography, Ben Franklin writes,

"As we enjoy great Advantages from the Invention of Others, we should be glad of an Opportunity to serve others by any Invention of ours, and this we should do freely and generously."

It doesn't get more clear than that.

Privacy vs. Security

2008-02-03T14:24:00.001-06:00

Are privacy and security at odds as this cartoon depicts? Security guru Bruce Schneier doesn't think so.

EFF Profile

2008-02-03T11:44:00.000-06:00

I can think of no organization for which I have more respect than the Electronic Frontier Foundation. Since its inception 18 years ago, the EFF has protected the rights of Americans in the digital age. Their expertise and foresight allows them to take cases that will have radical implications in the future. I highly recommend becoming a member to support their efforts.

In recent months, the EFF has risen to national prominence as they sue ATT for collaborating in the illegal warrantless wiretapping of American citizens. This is a topic I've discussed before, but now California Lawyer has a profile of both the case and the EFF as an organization. It is well worth a read.

Keith Olbermann on Telecom Immunity

2008-02-01T19:56:00.001-06:00

Privacy in the Digital Age

2008-01-30T22:11:00.000-06:00

Jim Dempsey of the Center for Democracy and Technology gave a lecture at Google about the ramifications for privacy in an increasingly digital world. What I found most interesting was the different levels of protection for different content.

For example, a variety of Supreme Court cases have established that "communication on the wire" is protected by the 4th Amendment but that "data at rest" has a much lower level of protection. That is, an email in transit is Constitutionally protected, but when archived on a third-party service, it is not. Statutory protections, like those for medical, financial or education records may, however, exist.

Another interesting dichotomy is that between "content" and "signaling or routing data." The first is more heavily protected than the second. So, the To: field and IP address can be harvested while the message in an email may require a warrant.

There are a lot more good points and the speech is embedded below:

The Question of the Intermediary

2008-01-23T19:38:00.000-06:00

The Internet was supposed to empower. It allowed anyone to contribute to global knowledge. It allowed anyone to mine it for the collective wisdom of all. We seemingly had an incredible ability to act through democratized tools for speech and other political motivations.

But I fear some of that is changing as users become more dependent on intermediaries in their Internet use. While I might be able to garner unprecedented information from the net and while I might be able to connect and collaborate with users across the net, those benefits are increasingly dependent on third parties. Importantly, in US v. Miller, it was decided that individuals lost their "expectation of privacy" when they turned information over to a third party (a bank in that case). More and more, users are handing information to third-parties without recognizing the implications.

In the past, the Internet's intermediaries were obvious: telecommunication companies like ATT or Verizon controlled the wires through which packets travelled. However, regulation, such as the "common-carrier" provision or DMCA safe-harbor attempted to ensure their neutrality and non-interference. Recent developments, however, suggest that this may not last forever.

In addition to the traditional intermediaries, the shift to Web 2.0 web services presents a whole new slew of intermediaries. Email and Facebook, widely used web services present interesting case studies.

Say the government would like to see what emails a suspect was sending. They used to need access to a desktop email service - thus the suspect's computer. The Fourth Amendment was clearly in play and a warrant would be needed. Now, as people increasingly use webmail like Google's GMail, they are handing potentially private data to a third-party and trusting that firm with ensuring the security of their information. Questions of illegal complicity (such as ATT in wiretapping) or technical folly (such as TJMaxx data leaks) are suddenly in the hands of another firm.

Or take the example of Facebook, as Jonathan Zittrain does today. In the past, computer programs ran locally, on a person's hard drive, but today programs are being hosted by Facebook or other websites. As Zittrain points out, the intermediary has an overwhelming ability to control access and distribution.

Nick Carr's new book, which I reviewed here, discusses the implications of cloud computing and while he doesn't discuss the legal protections or vulnerabilities in depth, it makes clear that this is a radical change which will have profound effects.

Who knows if these profound effects will limit the freedom which the Internet has enabled so far?

Update: As always, the EFF is ahead of me. Cindy Cohn, the Legal Director of the EFF, has a great speech at the University of Chicago about the intermediaries and their importance.

MediaDefender vs. the Pirates

2008-01-21T23:52:00.000-06:00

One of the more interesting stories in the copyright realm over the past couple months has been the ongoing story of MediaDefender which is a firm of questionable legality which does business with a number of major content companies. MediaDefender markets itself as an anti-piracy firm which tries to fight illegal downloaders through a number of tactics.

As you can imagine, this bothers a number of people including the guys over at The Pirate Bay. Anyways, a couple of months ago, internal emails were leaked showing the oftentimes juvenile and vindictive management of the company. Portfolio now has a great article covering the controversy with exclusive access to the teenage hacker who leaked the documents.

ATT Wants to Filter the Whole Internet

2008-01-17T12:54:00.000-06:00

Much has been made of ATT's recent announcement that it may work with content owners to filter the entire Internet for copyright infringement. Even though the EFF and American University have shown that technology is not a good way to enforce copyright, ATT thinks that it can support the broken business models of the RIAA, et al through technological methods.

Tim Wu, professor of law at Columbia University has a lucid article on Slate explaining why this may be economic and legal suicide for ATT. Check it out.

"Open Source is a Legitimate Business Model"

2008-01-16T13:52:00.000-06:00

Critics of open source software tend to see it as anti-capitalist. After all, people work outside of a traditional command-and-control firm and do not receive wages for work. However, as the digital economy of nonrivalry and nonexclusion takes hold, more and more examples are developing to show why peer production is of great value - both socially and financially.

IBM has shown that Linux can create billions in revenue. Firefox has shown volunteers can create a browser with revenue in the tens of millions. Now, Sun Microsystems in purchasing the open source database MySQL for $1 billion. According to CEO Jonathan Schwartz, they plan to invest in the community and architecture of the most popular database software in the world.

People are beginning to recognize that humans are diversely motivated beings and that ultimate control is not a prerequisite to value.

(And this, for the record, is post 200. Thanks for reading.)

The Pirate's Dilemma

2008-01-11T16:23:00.001-06:00

The Pirates Dilemma

From: mattjamesmason, 1 week ago

| View | Upload your own

A short talk on my book The Pirate's Dilemma, which looks at how youth culture can gives clues about new ways to share information, and why competing with pirates is often better than fighting them.

SlideShare Link

Death of DRM

2008-01-04T11:24:00.000-06:00

Though it might cling to life in various forms for movies or ebooks, according to BusinessWeek, the last major record label is set to drop DRM from its music. SonyBMG will join Warner, EMI and Universal if it removes the digital locks which frustrate consumers and music fans. Amazon will become the first digital music purveyor to have music from all the major labels without DRM.

See more coverage of DRM here.

Public Domain Books for Print

2008-01-03T01:04:00.000-06:00

Even though the public domain in America won't expand for years due to retroactive extensions, there is still a wealth of information available in books published prior to 1923. Google Book Search, the Internet Archive and other digital projects have scanned many of these books. For the first time that I know of, you can now use an easy service to get reprints of these books.

Public Domain Reprints grabs the PDFs from the aforementioned services and then prints them using Lulu.com. For those of you who like to read off screen, this is a nice service.

However, I wonder how long it will be around: The PDFs available of public domain books digitized by Google include, among others, these "usage guidelines:"

"+ Make non-commercial use of the ﬁles: We designed Google Book Search for use by individuals, and we request that you use these ﬁles for personal, non-commercial purposes.
+ Refrain from automated querying: Do not send automated queries of any sort to Google’s system: If you are conducting research on machine translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the use of public domain materials for these purposes and may be able to help. "

The creator of this service does insist that it is noncommercial, but he would seem to run afoul of the second guideline. Though Google does not own the copyright to the materials and cannot legally enforce these guidelines through copyright, it is their service and I wouldn't be surprised if they interfered with the automatic querying.

[via Blogoscoped]

My Position on Copyright is Nothing New

2007-12-27T20:25:00.000-06:00

Lord Thomas Macaulay was a 19th Century Whig member of the British Parliament. He was also an accomplished historian and literary figure. While reading Eric Anderson's history of copyright during the 1800s and he points to this wonderful quote by Lord Macaulay:

"Copyright is a monopoly [and...] the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. [...] It is good that authors should be renumerated; and the least exceptionable way of renumerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good."

If you are so inclined, all of Macaulay's speeches on copyright are here.

Open Source Living

2007-12-27T19:25:00.001-06:00

There are generally understood to be two types of free/open source software advocates:

Ideologues - Those who think software should be free (not in cost, but in the freedoms associated). These include the Free Software Foundation's Richard Stallman and Eben Moglen.
Pragmatists - Those who think software can better be produced in social production rather than proprietary hierarchy. Linus Torvalds is in this camp.

Both will love Open Source Living which provides a beautiful catalogue of first-class open source (or free!) software. And if you need help with any of these programs, check out these free manuals.

EU Enforces Fashion Copyright

2007-12-27T19:11:00.000-06:00

There have been some recent rumblings in America as the major designers try to extend copyright to clothing. According to TechDirt, over in the EU, they have started to enforce copyright on clothing in an Irish court ruling.

This will undoubtedly create a chilling effect in the clothing industry as designers avoid being in vogue in case they conform too closely to the trends which dominate the industry. It is no secret that the incumbents are pushing for more government monopoly - with strict copyright enforcement they will be able to rest on their current styles and avoid innovating.

Egypt to Extend Copyright to... 5000 Years!

2007-12-26T13:13:00.000-06:00

Egypt is set to pass a law which would copyright the national antiquities including the sphinx and pyramids. International use of the iconic images would be controlled, though the Egyptians say that inexact reproductions by artists would be permitted.

Obviously this is unprecedented and unwarranted. Copyright has a rightful purpose, and that is to provide incentives for production. The Pharaohs and slaves who constructed those buildings, however, are not going to build more because living Egyptians will receive royalties. If Egypt needs a way to develop revenue for the upkeep of the monuments, perhaps they pursue another business model.

Book Review: The Future of Reputation

2007-12-25T18:59:00.000-06:00

In less than 24 hours I have plowed through Daniel Solove's "The Future of Reputation." Solove is a leading expert on privacy law and his erudition is clear as he weaves a comprehensive tale of the Internet's effect on gossip, rumor, privacy and reputation.

Solove's writing is highly readable and anecdotal as he explains why age-old concepts like gossiping and shamming have become permanently etched into digital memory. After establishing the various types of activity which is coming to affect reputation in the 21st Century, Solove argues for a more nuanced understanding of privacy. He notes that public acts may be done without the expectation of permanence, yet in a world of camera-phones, people do not often have a choice. Further, although free speech and privacy may seem to be at odds, he shows that they may act to further the same goals (think anonymous political publications).

In all, I think Solove does a great job raising a warning in an accessible book which presumes no previous knowledge. Though I would have liked a discussion of how government surveillance fits into this, Solove chose to write about reputation and the public norms which underlay that. Perhaps that is just as important in the global village.

WTO Finally Realizes Copyright is at Odds with Free Trade

2007-12-22T11:26:00.000-06:00

Something about international trade policy has always struck me as odd: organizations like the WTO and trade representatives from America have insisted that global copyright regimes mirror America's. However, the WTO seeks to lower trade barriers and it seems quite obvious that government created monopoly is not conducive to free trade.

Even more, I find it cultural destructive to force other nations to adopt American legal status quo which is neither in line with our Constitution or their interests. That is why some recent news has left me scratching my head.

First, South Korea has extended their copyright term from 50 years past the death of the creator to 70 years. This now matches America (something the Gower's Report in the UK recommend against). Yet, surprisingly, not even the publishers wanted this to occur - the government did. They are paying the publishers in S. Korea $173 million to appease them.

Today, news came that the WTO is finally acting against incumbent America. The dispute between Antigua and the United States over Internet gambling has been resolved by the WTO by rewarding Antigua $21 million. Instead of treating copyright as a natural right, the WTO is rewarding Antigua by allowing them to ignore American copyrights for the decided value. While it will be hard to determine the value of each flouted copyright, it is at least refreshing to see copyright treated as a privilege, not right.

Book Review: The Big Switch

2007-12-21T14:28:00.000-06:00

Next month, Nick Carr’s new book, The Big Switch will be published in which he compares the centralization of electricity production to the current “cloud computing” phenomenon. Carr is one of my favorite voices in the technology field and he was kind enough to send me an advance copy of his book.

In a way which few do well, Carr uses history to understand the ramifications of important trends in today’s world. As more and more information technology is moved from one’s individual PC or firm to large server farms run by companies like Google, Amazon or Salesforce, Carr believes we will see profound changes in media, privacy, and more: even our biology may be affected.

This change to software as a service is, Carr explains, largely analogous to the big switch of one hundred years ago when electricity became a centralized commodity. During much of the Industrial Revolution large factories had to make the energy necessary for running the tools of production. To this end, factories were built near large rivers or other sources of energy.

However, the work of Thomas Edison and his protege Samuel Insull made electricity production an industry unto itself which would come to benefit from economies of scale. Commonwealth Edison and other energy companies made it possible for factories to be located anywhere and new inventions to proliferate in the homes of middle-class America. To Carr, this was a monumental occurrence which is on par with today’s shift toward Internet services.

The trend he analyzes is still developing rapidly with Amazon’s Web Services and Google’s products evolving weekly. Yet, Carr does a good job regarding the ramifications of this trend. He discusses privacy in a Web 2.0 world, media’s unbundling, threats to this progress and even provides a provocative look at where this may take us.

It is rare to come across a book which is as approachable, lucid and important as The Big Switch and I highly recommend ordering it.

This is Real Leadership

2007-12-17T17:58:00.000-06:00

Chris Dodd is leading the fight against retroactively immunizing private companies from the lawsuits which allege they were complicit in the warrantless wiretapping of American citizens. The video below shows true leadership.

Call your Senator and say something like the following if you want to stop this dangerous legislation.

"Hi my name is ___________________ and I'm a constituent of Senator ______. I'm calling about the upcoming vote on legislation concerning retroactive immunity for telecommunications companies who assisted in warrantless wiretaps on Americans. If Senator ________ doesn't vote against the measure, I fear he risks cutting the judiciary branch out of this important task and surrenders his duty to the Constitution he was sworn to uphold."

$154,050

2007-12-07T14:58:00.000-06:00

Representative Howard Berman is a Democrat from California's 26th District which covers much of Hollywood. He also sits on the House Judiciary Committee and chairs the intellectual property sub-committee. This week, he co-sponsored the "PRO IP Act of 2007" which would significantly increase the penalties for copyright infringement. It would also create a new bureaucratic position called the "White House Intellectual Property Representative" which would serve the interests of the entertainment lobby which, accordingly, applauded the bill.

Which brings me to that titular figure of $154,050. Mr. Berman, who I've previously covered, received that amount of money from the entertainment lobby in the fiscal year ending in 2006. This extraordinary amount from a such a single-minded group is nothing new for Mr. Berman who has received such financial support annually. And annually he has worked to expand copyright's restrictions.

Thank goodness we have Lessig on the case.

For Representative Berman's financial accounts, see here.

For more on the bill, see here.

Link of the Day

2007-12-07T14:41:00.000-06:00

Showing how the DMCA anti-circumvention clauses are not in line with the physical world.

The Economist on Lessig

2007-12-07T10:44:00.000-06:00

I owe an incredible debt to Lawrence Lessig whose books alerted me to this issue about which I am so passionate. Code, The Future of Ideas and Free Culture are wonderful works of scholarship which changed the way I think about technology, law and culture.

After litigating to stop copyright's expansion, founding Creative Commons and lecturing to thousands about the dangers of overbearing copyright for the past ten years, this summer Lessig made quite clear his intention to focus on the larger issue of political corruption.

I'm excited at the possibility of Lessig's intellect being applied to the economy of political influence which pervades American policy making. The Economist also found it noteworthy and has an article in this week's issue.

"A Mode of Production is a Way of Life"

2007-12-04T19:44:00.000-06:00

Today in my Political and Social Thought lecture on Karl Marx, my professor stated that Marx believed "a mode of production is a way of life." For the purposes of the digital economy, this is a fascinating statement.

Though at first glance this would seem to be a technologically deterministic belief, Marx did not see a "mode of production" as just a technology, but rather the desired product, the process, the organization and the factors of production. So, while it might still be a form of determinism, it is much broader than the sentiments of, say, those who think the Internet is bound to make us more free.

More interestingly, though, are the ramifications for what Yochai Benkler calls "social production." In his book The Wealth of Networks he address how social production transforms society at large. Though I haven't made it through all of the tome, Marx's statement seems to be of a similar vein.

Marx saw the historical process of political economy as an evolution of subjugation: slave masters became feudal serfs who, in time, became the bourgeoisie which dominated the proletariat. The next iteration was supposedly free and equal individuals in a communal society.

Now, if a mode of production defines a society's way of life, the society of free and equal individuals requires a different form of production. Marx thought this anti-capitalist revolution could come about either peacefully or through violent insurrection. What would change is the means of production.

Now, my professor didn't claim to know the answer to this and nor do I, but I wonder: is the open source model of production as characterized by open source software and Wikipedia the revolution in production and therefore society that Marx foresaw?

In what I think of as open source production, and Benkler more aptly calls social production, all individuals can contribute. The means of production are increasingly free (as in speech) as opposed to what Marx saw in capitalism: ownership by the bourgeoisie of the factors of production.

If anyone can contribute to something of great value ($66 million for Firefox, anyone?), I think we may very well be at a more free and equal society. This again falls into the technological determinism of which I am wary, but I do think the design of systems can lend themselves to certain outcomes.

(More to come as I have time to delve into Marxism & Marshall McLuhan who, I think, fits into this puzzle.)

Think the Reputation Economy is New? Think Again

2007-11-29T13:49:00.000-06:00

What motivates the Wikipedia contributor or Linux programmer? It can't be financial since these endeavors are non-profit. A lot of recent scholarship has focused on non-fiscal returns including what has come to be known as the "reputation economy" where one's contributions become, in sum, reputation signals to peers, prospective employers and others.

Well, it turns out, this isn't a new phenomenon. A nice survey of both the historical and current copyright debate in the Globe and Mail shares the anecdote of the 18th Century British poet, Daniel Defoe. Mr. Defoe's satirical poem "A True-Born Englishman" netted him little profit due to the 80,000 "pirated" copies. However, the free distribution made him popular.

"This wide readership helped establish his literary reputation, making him one of the most famous men in England and assuring that his future works would find an audience. Even the King befriended him. For much of the rest of his life, Defoe would refer to himself simply as the author of The True-Born Englishman."

As Tim O'Reilly said, the greatest threat an artist faces is obscurity, not piracy.

Blog Recommendation

2007-11-14T01:08:00.000-06:00

The Michigan Telecommunication and Technology Law Review recently launched a blog which has some really great posts including a history of YouTube legal disputes and warrantless wiretapping lawsuits. Check it out.

The Presidential Candidates on Tech Policy

2007-11-12T14:43:00.000-06:00

I've always been a fan of Michael Arrington's TechCrunch which rose to prominence covering Internet business. He is doing us all a great benefit by leveraging his popularity to interview the leading Presidential candidates on technology policy. Even further, he is allowing users to voice their concerns.

So far, he has posted interviews with John McCain and Mitt Romney. Be sure to check out TalkCrunch for further interviews.

Colleges to Universities: Filter the Net or Lose Financial Aid

2007-11-12T13:00:00.000-06:00

As I am now a college student, my recent post over on the Students for Free Culture blog is of particular interest to me:

Fred Benenson over at Free Culture @ NYU is spreading the word about a Congressional bill which is under consideration which would eliminate student loans at schools which do not filter the Internet. As Fred puts it:

This bill contains wording that, if passed into law, would jeopardize federal aid for universities if they refused to filter their student’s internet access. In other words, the bill is designed to force universities to police their student’s internet connections in a way that no other ISPs in the world do. Besides encouraging a violation of network neutrality on campuses, this bill demands universities to do something that is technically impossible — how is NYU’s router supposed to be able to tell the difference between a Creative Commons licensed video podcast that you’re downloading via Miro and an “illegal” file your roommate is getting off of a file sharing network? The point is they can’t — no technology has been invented that can properly discover whether a file is “legal” or not (consider how difficult it is for a judge to decide whether a use is fair, and then think of trying to create a chip that would do it) and no technology will ever be invented to do this.

The dubiously titled “College Opportunity and Affordability Act of 2007” (coming in at a staggering 747 pages, the relevant part is from pg. 411-413) is a bad deal and we need to let our representatives know it before they vote on it on Wednesday at 9am.

Take the five minutes to call your representative and let them know how dangerous this is to free speech and higher education. Committee members include:

Democrats

Republicans

Howard P. “Buck” McKeon, Ranking Member (CA-25)
Thomas E. Petri (WI-06)
Peter Hoekstra (MI-02)
Michael N. Castle (DE-At Large)
Mark E. Souder (IN-03)
Vernon J. Ehlers (MI-03)
Judy Biggert (IL-13)
Todd Russell Platts (PA-19)
Ric Keller (FL-8)
Joe Wilson (SC-02)
John Kline (MN-02)
Cathy McMorris Rodgers (WA-05)
Kenny Marchant (TX-24)
Tom Price (GA-06)
Luis G. Fortuño (PR)
Charles W. Boustany, Jr. (LA-07)
Virginia Foxx (NC-05)
John R. “Randy” Kuhl, Jr. (NY-29)
Rob Bishop (UT-01)
David Davis (TN-01)
Timothy Walberg (MI-07)
Dean Heller (NV-02)

Consider saying something like the following:

Hi, the Committee on Education and Labor of which ______ is a member is considering a bill entitled “The College Opportunity and Affordability Act of 2007″ which would strip universities of federal aid money if they do not filter the internet their students use. This is dangerous for free speech, education and the affordability of college. Please have ______ work to amend this.

Falsely Accused Woman Sues RIAA

2007-11-08T10:52:00.000-06:00

The ABA Journal has an article about an Oregon woman who was falsely accused of downloading music by the RIAA. Following alleged intimidation, fraud and negligence, the RIAA dropped the lawsuit, but this principled woman is forming a class-action suit to stop the RIAA's bully tactics.

The Open Handset Alliance

2007-11-07T00:07:00.000-06:00

As a college student, I spend plenty of my time in class where my cell phone needs to be silent. However, the vibration mode is not desirable while in my dorm or outside. So, I am forced to manually switch between modes a number of times daily.

While this is obviously not an enormous burden, one might easily imagine a cell phone application which would mute one's phone during certain times each day. Weekly staff meetings would not be interrupted; classes would proceed without punctuation from an errant ring tone.

However, the locked down cell phones which permeate the American market make this entrepreneurial task an impossible one. The omnipresent mobile phones (of which there are 3 billion globally), remain a closed platform. This limits innovation in the form of new applications.

Led by Google, the new Open Handset Alliance seeks to upset this status quo by providing a platform for development on mobile phones. Major industry members including Motorola, HTC, Sprint & T-Mobile are joining forces to end the prohibitive mobile market.

Notably absent, however, are the largest cell phone carriers, Verizon and ATT, who will still have the ability to lock-in customers through artificial market barriers like they do with the iPhone or other handsets. Yet, this is undoubtedly a powerful step towards making mobile computing more like Internet computing and the members should be applauded for their leadership.

More on Automatic Copyright Filtering

2007-10-31T21:59:00.000-05:00

In my last post on the topic, I closed asking to whom we should look to develop a set of norms for fair use in digital media. The EFF and others have spared me of that burden and have produced a set of principles covering fair use in "user generated media." The set of principles is here and an extremely useful set of examples are here. The video examples show that immense engineering problem with automatic copyright filtering and I encourage you to check them out for a couple laughs, too.

Quick Link

2007-10-30T01:07:00.000-05:00

The Economist's special report on innovation covers many topics that will be of interest to readers of this blog. Be sure to check out the article linked to in the right hand column.

Google's Policy Chief on YouTube Copyright Filtering

2007-10-27T22:01:00.000-05:00

Harvard's Berkman Center has a brief video by the head of Google Public Policy, Andrew McLaughlin on the new YouTube copyright filtering tool.

McLaughlin addresses the concerns many have raised about the automatic filtering's effect on fair use. According to him, if a fair use is flagged as infringing, YouTube/Google will "rely on communication" between the claimant and uploader. If this doesn't resolve the issue, YouTube's lawyers will "make a judgment call." This would seem to be a shift from the historic practice of courts adjudicating fair use.

But in a way, I don't know if we can blame Google. The DMCA and litigious copyright owners have placed them in this position. McLaughlin says he hopes that a sort of "common law will develop." That is, a commonly accepted set norms and practices will allow for a lower transaction cost between claimants and uploaders. Perhaps this will emerge, but it is going to need leadership. To whom shall we look?

Spreading US Copyright Law without Even Knowing What that Means

2007-10-23T20:59:00.000-05:00

MSNBC is running a story about the US Trade Representative's goal of negotiating a new intellectual property pact which would benefit the American companies who export their IP.

The money quote is from the Chairman of the Senate Finance Committee, Montana Senator Max Baucus:

"Ideas are America's true currency and if we want to be economically competitive, strong protections for U.S. intellectual property are key."

As readers of this blog will know, you cannot copyright ideas. Though the dichotomy between expression (qualifies for copyright) and ideas (not allowed copyright) is subtle, as a protector of the Constitution and exporter of American legal systems, I would hope Mr. Baucus would review it.

Anyways, as I wrote in the beginning of this nearly year old blog, America started as a "pirate nation" which didn't respect the intellectual property of others. However, as a net exporter, we are now using our hegemonic position to push our ideals of copyright onto other nations and people who don't have the same historic background.

Automatic Copyright Enforcement

2007-10-16T17:52:00.000-05:00

Yesterday, Google introduced its automatic copyright filter for YouTube. The service will compare user-submitted content against copyright owner-submitted content. Content submitted by users which matches that of the copyright owners will be flagged for either: blocking, promoting or revenue sharing.

As I have said before, a binary solution to a non-binary problem is dangerous. The issue of copyright is not black or white - principles like fair use make copyright a subjective matter of which a computer is not the best judge.

According to Gigi Sohn at Public Knowledge, a few seconds of matching will not be sufficient to block the submitted video, but because fair use can be much longer than a few seconds (think about the documentary Outfoxed), this places a previously absent burden upon YouTube users.

Before these binary solutions, copyright owners needed to challenge reuses they thought were not fair use. Now, citizens need to justify their fair use.

Arriving Late and Ill-Informed

2007-10-10T15:29:00.000-05:00

Here's a post by someone who, as far as I can tell, has zero formal legal training. Further, he has neither done any empirical studies on YouTube nor researched the studies which have been done.

In his ignorance, he writes:

...by YouTube's own rules, YouTube cannot exist. And yet it does.

How do we reconcile YouTube's official hard-line position on copyright with the reality that 90% of the content on their site is clearly copyrighted and clearly used without permission?

Had he any legal training or done any research into work by those who do, he would know that:

1. The lawyers at the EFF have been able to defend the fair use of YouTube videos and,
2. Studies have shown that 90% of videos on YouTube are non-infringing.

Free Culture in the NYT

2007-10-10T07:27:00.000-05:00

The New York Times has a nice article on Students for Free Culture.

"Humanizing" Open Source Software

2007-10-09T22:39:00.000-05:00

A while back I lamented the oftentimes poor design of open source software and how it retards adoption. See the post here.

Now, a much more accomplished post is available here where the author outlines best and worst practices. Check it out.

Quote of the Day

2007-10-07T14:10:00.000-05:00

Ask yourself this: if Linux didn't exist, would Google? Would Facebook, without that and PHP, the free scripting language that even people like me can scrape by in (my PHP is about as good as my French), and Apache, the free web server, and MySQL, the free (and open source) database? "Free" underpins a huge amount of effort on the internet now, and that translates into real world commerce: Amazon uses those free building blocks too for its business, which is largely about shipping atoms, not bits.

From the Guardian.

Amen, Brother

2007-09-22T14:45:00.000-05:00

The following video provides a great examples of how re-appropriation and sampling is essential to our culture. It traces the history of a six-second drum beat from the 1960s as it crops up repeatedly due to loose copyright only to become locked down by copyright a tightening of license restrictions.

Fair Use Economy Worth $4.5 Trillion

2007-09-13T16:57:00.000-05:00

The CCIA, a lobby group which represents major technology companies has released a study which says that the "fair use economy" represents 1/6 of the US economy. Sounds pretty impressive, right?

If it were true. The report casts such a broad net that fair use becomes an integral part of industries as varied as newspaper publishing and wire manufacturers. Read the study yourself, but I would like to close with a fair use of Nick Carr's post on the subject:

I have to admit that it would never have crossed my mind to think of wire manufacturers as being part of the fair use economy. But that's just a failure of imagination on my part, I guess.

What's most amusing is that, if you took a similarly expansive view of the role of copyright, you could easily categorize all of these industries as part of the "copyright economy." (Copyrighted content goes over wires, too, doesn't it?) And it would be an equally meaningless exercise.

You can be, as I am, a strong advocate of liberal fair-use rules and a strong opponent of onerous copyright restrictions and still be appalled by this kind of fake research. Can't industry groups make their points without stretching the truth beyond recognition and, in the process, insulting everyone's intelligence? Fair use deserves better.

Fred Thompson's Record

2007-09-05T11:49:00.000-05:00

Wired analyzes Presidential hopeful Thompson's record on issues of importance to this readership here.

As the campaign progresses, I'll do my best to analyze the other candidates.

NYT Fails to Understand Copyright

2007-09-03T23:42:00.000-05:00

The New York Times is one of my favorite sources for news, but today an article was published which fails to fully examine the issue. Eric Wilson's piece on the fashion industry's relationship to copyright identifies the current debate over whether or not copyright should be extended to clothing design, but fails to provide a balanced look at the issue.

The coalition of designers who would benefit from government created monopoly convinced a group of Senators to introduce legislation banning substantially similar clothing from being sold by a competitor. This, undoubtedly, happens but copyright should not be evoked in an already competitive marketplace.

The Constitutionally-determined purpose of copyright is to provide an incentive for creation. The American clothing industry is worth $181 billion -- clearly not a floundering business.

But it is a business predicated on fads and copying. Retro clothing would become even more a thing of the past, never to be revived due to copyrights lasting 70 years after the death of the creator or an equally detrimental length were the owner a corporation. Even though I'm no fashionista, I can testify to the cycle of style which comes as people begin to buy clothing of similar styles to "fit in" or "be cool."

Further, imagine the nightmare entrusted to the already burdened court system when they have to determine the uniqueness of a dress or jeans. Is that really something that we want?

A Call for Copyright Reform

2007-08-06T10:04:00.001-05:00

Pamela Samuelson of UC Berkeley has released a short, readable paper about the need to seriously reform the convoluted copyright statute. The current law, which is mostly a product of the 1976 revision, was written in a time where technology was hardly a concern for content owners and when lawmakers had little understanding of the technology (how things stay the same...).

She recognizes that this is likely to not occur due to other, more pressing, concerns, and I think that might be a good thing. I fear that deep revisions could stifle innovation due to the influence wielded by the content owners. I think it may be better to stumblr blindly through the next decade or so until people raised on the Internet are in a position to influence the decisions.

What do you think should be done about copyright reform?

20 Second Clip Yields 31,536,000 Seconds in Jail

2007-08-02T16:01:00.000-05:00

A student in DC has been charged after filming 20 seconds of Transformers to show her brother. See here.

Complaint Filed Over Overreaching Copyright Notices

2007-08-01T19:49:00.000-05:00

In the past, I've tried to highlight the overreaching copyright notices that are commonplace. You can see the posts here.

Well, today, the WSJ reports that the CCIA has filed a formal complaint about the practice citing, among others, the NFL and Harcourt, Inc.

To many, copyright remains a nebulous and confusing concept. The notices blasted before MLB games or prior to the text of a book serve as a form of education to many, but it is education mislead by omission of important fair use rights that the consumer has. This CCIA complaint is a very reasonable request which will, if adopted, provide for a more fair conception of copyright law.

Packers, I'd Like to Introduce You to the Net

2007-08-01T19:43:00.000-05:00

The Internet has, for the most part, been commonplace for 10 years and nearly ubiquitous in the USA for 5.

Yet, for some reason, its basic functions remain foreign to the Green Bay Packers.

Their lovely copyright page, available here, demands that all links to the site be directed at the homepage. In fact, to link to the copyright page, like I did above, requires written permission.

Does anyone want to help these sad, sad people?

Free Design

2007-07-26T15:52:00.001-05:00

Anyone who cares to pay attention is aware that free and open source software like Linux or Firefox can compete head-to-head with proprietary programs. The computational skill of ideologically aligned programmers from the open source camp oftentimes leads to applications more powerful, flexible, and secure than their closed rivals. However, too often the value of open source is hidden too far below the surface.

In computing, like in other pursuits, judgments will be based upon initial reactions (see Blink by Malcolm Gladwell if you don't believe me). A book with an awful cover will often still be read (due to recommendations or, say, required summer reading...), but such may not be the case with computer software. Alternatives exist in applications, not books.

Another point: user-interface design is not just aesthetic like on a book. The poor placement of buttons and displays within a program can seriously hinder usability and productivity. Design is function.

This is something the open source community needs to take to heart. Useful programs like Audacity are marred by dastardly design which limits the approachability of the already alternative programs. Firefox and Ubuntu are arguably the most popular consumer open source applications and a lot of it has to do with the thoughtful design.

Another Reason to Listen to the Founding Fathers

2007-07-13T14:07:00.000-05:00

Rufus Pollock of Cambridge University has released an economic paper analyzing the optimal duration of copyright. The first three and a half pages are approachable to all, but after that he dives into some tricky empiricism which leads him to conclude that the correct length of copyright from an economic standpoint is 14 years.

Although he recognizes the "significant implications for policy," I tend to doubt his work will be of much significance. Bear in mind that in Eldred v. Ashcroft, 17 leading economists (including 5 Nobel Prize winners!) submitted a brief establishing that the economic value of copyright extension was minimal.

It seems that the economics of lobbyists trumps academia.

[Pollock's Paper]

Putting Canadian "Piracy" in Perspective

2007-07-10T23:47:00.000-05:00

Courtesy of the intrepid Michael Geist, a video correcting the record on the supposed rampant piracy up north.

Here and There

2007-07-10T22:23:00.000-05:00

As you can see from my new post about patents, I'm back to blogging here.

You can also follow my other blog which is done through Tumblr in which I cover media, world affairs, technology and anything else which intrigues me. It's a lot of fun, so check it out.

[Bumblin' Along]

Government Grants Provided More Incentive to Innovate than Patents

2007-07-10T21:07:00.000-05:00

James Bessen is the co-author of the forthcoming book "Do Patents Work?" and gave a highly enlightening speech at Duke which is available on iTunes (see below). His empirical studies of the patent system of the United States provides important insight into the ever-growing field of intellectual property.

The talk is filled with fascinating statistics like the fact that in 1991 the total value of US patents was $4 billion. In the same year, the US government provided R&D subsidies to US firms of $26 billion. If patents are supposed to serve as incentive to innovate, yet the government had to provide nearly 8 times as much incentive, there are serious issues with this form of property. Bessen blames, among other things, fuzzy boundaries and the tax of litigation (which has exploded recently).

[Link to iTunes]

Disney Does Us a Favor

2007-05-18T15:58:00.000-05:00

Here is a great piece of work describing copyright by using Disney animation spliced together. It is incredibly informative and could not be more creative.

Now, does anyone want to take RIAA music and splice a lecture together about copyright?

University DMCA Policies

2007-05-17T18:40:00.000-05:00

Yesterday, Ray Beckerman, one of the attorneys behind the Recording Industry vs. the People, posted the new Stanford DMCA policy. The new policy has been criticized for assuming the RIAA is correct: following a primary DCMA take-down notice, Stanford will send an email to the allegedly offending student which must be answered within 48 hours to avoid paying a $100 network reconnection fee. Subsequent notices will result in automatic disconnection from the Stanford network and fines of $1,000.

After naming the supposed 25 top piracy schools and unleashing a storm of pre-litigation letters, the RIAA has received both acquiescence and backlash. The University of Nebraska has decided to bill the RIAA for the effort of tracking down supposedly infringing material. This is the job which Stanford alleges takes 3 employees; it just seems Stanford disagrees over who to charge. Ohio University has taken the most drastic action and banned all peer-to-peer networks on campus.

Needless to say, this should be particularly worrying for Free Culture members. Does your school have an amenable DMCA policy? Have you run into any particularly draconian ones?

[Cross posted on Free Culture Blog]

How Would You Fix the Patent System?

2007-05-17T16:51:00.000-05:00

Wired News asked its readers to suggest ways to fix the patent system. We've recently covered the patent threats by Microsoft.

The Wired suggestions are here. I think a public battle over software patents might be what is necessary to change the current system.

How would you fix the patent system?

One Size Fits All Intellectual Property

2007-05-15T22:22:00.000-05:00

James Surowieki of the New Yorker has a nice, short article about how America forces its current intellectual property regime on nations seeking to trade with America. The effect is a one-size fits all IP system which (marginally) benefits American firms and disregards local or traditional customs and legal practices.

AG Gonzalez Wants to Make Sure You Know Who's Boss

2007-05-15T21:16:00.000-05:00

Today, recently chastised Attorney General Gonzalez introduced a new intellectual property legislation. The proposal as it was forwarded to Speaker Pelosi is here. The most worrying provisions include:

Criminalizing attempted copyright infringement. In what the Wall Street Journal sister-site is equating with Orwellian "thought crime", you could face 10 years in prison for not actually infringing copyright. Who is harmed if you are forced to buy the DVD because your illegal download fails?
Provide for forfeiture and seizure of personal property used for copyright infringement. Say good bye to your Mac. And your iPod. And your work PC. And definitely your camera. You know what, I doubt your library computer will even last very long...
Expand the FBI's ability to wire-tap and spy on Americans who may be infringing copyright. I understand the need for protection of lives and how that may mean certain, measured curtailment of liberties for temporary periods, but the tenable threat to economic growth is by no means worthy of such a gross invasion of privacy.
Require the Department of Homeland Security to work for the RIAA by alerting them to cross-border infringement. Do I need to convince you this is a bad idea?

Linux Violates 235 Patents, Says Microsoft

2007-05-13T18:24:00.000-05:00

Fortune Magazine has a lengthy article about the coming patent war between Microsoft and Linux users/distributors. As former Microsoft employee Robert Scoble points out, Microsoft has historically not used patents offensively (ie: sued for infringement), but this allegation and the recent deal between Novell & Microsoft suggests that Microsoft will use the courts to attack Linux.

Subscribe to Copyrightings for more information.

NPR on Stanford's Fair Use Project

2007-05-08T16:27:00.000-05:00

NPR has a good piece on Stanford's Fair Use Project which has had some big wins as of late. Link

Question of the Day

2007-05-04T17:45:00.001-05:00

Is censorship the inability to speak or the inability to be heard?

A Digital 'March on Washington'

2007-05-03T20:47:00.000-05:00

Prof. Randy Picker has a thought-provoking post on the University of Chicago Law Faculty blog about the diggstorm of May 1st, 2007. He analyzes the disregard for the law which was evident as digg users, and eventually digg itself, willfully publicized a rather clear violation of the DMCA's anti-circumvention clause.

That takes us to the question of civil disobedience. My operating assumption is that there are some laws that individuals will appropriately conclude that they should disobey, laws that while enacted pursuant to the extant applicable procedures, are nonetheless beyond the scope of what should be law in a well-constituted society. In those circumstances, civil disobedience will be appropriate and we should be grateful to those who are willing to suffer the consequences of disobeying illegitimate law.

I wouldn’t think that not being able to play an encrypted high-definition DVD on your platform of choice would fall into that category. I understand fully that people disagree about whether digital rights management and the Digital Millennium Copyright Act are good copyright policy. I also understand that users can be frustrated by limitations imposed by DRM (I’ve run into those myself). But I think the DMCA (and the DRM that it makes possible) is a long, long way from the sorts of laws for which civil disobedience is an appropriate response. Simply not liking the law is not enough. There must be more, something that recognizes the nature of reasonable disagreement over law, and the range of possible legitimate variations about those laws.

Prof. Picker dances around it, but I think that there should be a deep moral or ethical disagreement with a law to act in civil disobedience.

Tuesday night, I spent more time on digg than I had in months. After staring incredulously at the screen as it filled with innumerable stories involving the now famous string of numbers and letters, I began to digg every one. I was among thousands who, with a single click of the mouse, registered their disapproval with the DMCA. The hexadecimal key was obsolete - new DRM will take its place - but the restriction to knowledge and information it represents is still very much the law.

A law which I feel is deeply unethical and treads an unimaginably thin line of legality. In a world where people can, for the first time, access information on an enormous scale, the DMCA's provisions which prohibit fair use are something which I feel should be overturned as much as I feel segregation should have been outlawed.

Education is terribly important to me. Equality is terribly important. Often the two go hand-in-hand. Ignorance breads discrimination. Diggs users, sitting individually in thousands of homes were clicking for access to information and in support of fair use. They were Marching on Washington in the way my generation does - digitally.

Digg.com In Open Revolution

2007-05-01T22:50:00.000-05:00

After a recent story on Digg.com, the popular social news site, was deleted due to a DMCA take-down notice, the community has risen in full revolt against censorship.

A story with the hexadecimal code which decrypts the DRM on HD-DVD was reportedly the 3rd most dugg story of all time (>10,000 individuals voting for it). The removal of the story was noticed and an incredible deluge of stories promoting the numbers have been voted. Every story on the popular homepage is about the numbers.

Don't try to copyright numbers or silence the Internet. We will win. Every time it matters.

Thought of the Day

2007-04-30T18:32:00.000-05:00

Bored in Spanish class, I thought of the following:

There are those who passively accept change; that is easy. There exist those who lament change, which is harder. Most difficult, though, is the task of those who justify change.

The latter deserve the ease of the first, while the first deserve the world those who lament promote.

What do you think? Agree/Disagree?

Jonathan Lethem is the Thought Leader on Copyright's Affect on Art

2007-04-29T21:44:00.000-05:00

Lawrence Lessig awoke me to the problems with the current copyright regime from a legal perspective. My interest was, and remains, in the law.

However, copyright is innately tied to the creative industries. Though Lessig has often highlighted the benefits to art in a looser copyright regime, his purview remains the legal side of the issue. Jonathan Lethem, who I've written about recently, is clearly the thought leader on the artistic ramifications of copyright.

In the below video, he discusses how copyright must not just be approached as a business decision, but it must consider the aesthetic.

I hope he continues this important work -- defining copyright on the terms of artists, not companies.

Viacom Bows to EFF

2007-04-23T22:45:00.000-05:00

EFF had recently sued Viacom over a take-down notice for what was a clear fair use of their material. EFF has apparently dropped the suit after Viacom admitted its error.

I imagine they didn't try to set a precedent because Viacom has enough money to bankrupt the EFF in trial costs...

Consider donating to the EFF; they do great work.

Defective by Design Picture

2007-04-19T22:56:00.000-05:00

[Click to enlarge]

Made using Apple's own service. (And, yes, I know they are a little less defective... but it's not good enough for me.)

Lethem Interview

2007-04-19T17:49:00.000-05:00

Jonathan Lethem gave a more revealing interview to Salon.com. Quote:

But the truth is, I could write a whole book detailing the plot of a "Simpsons" episode, describing Homer's yellow skin and protuberant eyes, and no one would ever be able to block my choice as an artist there, or make it too expensive for me to do it. But if a visual artist or a filmmaker or a digital montage maker tried to capture that image, which is just part of a visual language that is floating around, they don't have my freedom.

Lethem Takes the Fight to the People

2007-04-19T15:50:00.000-05:00

Jonathan Lethem is the author of the best-selling novel "The Fortress of Solitude" and winner of the MacArthur "genius grant." Further, he is the author a recent article in Harper's which I mentioned earlier.

In a way no lawyer can, Lethem is tackling copyright reform. Wired News reports that he is selling stories to dramatists and filmmakers for a dollar each. As a writer and music fan, he recognizes the value of adaption and derivation. To this end, he wants to create a world where artists dictate the terms of use for their works.

Listening to Lethem, one imagines a world where every artist crafts an idiosyncratic copyright notice, with its own strange rules, to adorn the front page or liner notes or gallery notice fronting her creations.

This approach, to me, seems burdensome to those who want to create using other material. If I have to read a new agreement every time I want to use a work, my desire to create will decrease. Instead, the Creative Commons practice of standardized licenses seems to allow artists to understand a half-dozen limitations as opposed to thousands.

What makes the most sense to you? Complete artist control or a set of commonly accepted tools?

Release it Free and Reap the Rewards

2007-04-11T16:57:00.000-05:00

Eric von Hippel is an MIT professor and author of two books on innovation (Sources of Innovation and Democratizing Innovation). Unlike most authors, he releases his books for free downloads. In an interview he provides evidence to support that of Cory Doctorow - releasing material for free increases sales.

There have been 12,700 downloads of Sources of Innovation since I put it on the web last year, running about 20 per day. Sales before posting in 2005 (the book was published in 1988) were about 325 per year. In the year after posting, they were about 575.
Democratizing Innovation has been downloaded 55,000 times so far, with downloads from my MIT website running about 50 per day. I don’t think this has hurt hard copy sales – and it actually may have helped. MIT Press told me that hardcopy sales are higher than their pre-pub estimate of what they would have been without the option of free downloads.

Here are the links to the downloadable copies of his books - Sources and Democratizing.

I hope to interview some people who have had similar experiences in the future and get their anecdotes and views on the changing industry of publishing.

EFF Sponsored YouTube Debate

2007-04-09T21:30:00.000-05:00

Earlier this year at ETech, EFF attorney Fred von Lohmann debated Mark Cuban. The video of the debate is below. For the record, I tend to think the DMCA safe-harbor provision is beneficial to technologists but would like to see the case law strengthen to remove the doubt some have as to whether or not services like YouTube qualify as ISPs.

I think Mark Cuban has a fundamental misunderstanding of the statute and would have loved to see Fred demonstrate this, but the nature of the debate was too relaxed for that to be appropriate.

Nowhere do I see in the DMCA that an ISP needs a "customer relationship" with the user as Cuban suggests. In fact, here is Section 512 of the DMCA:

(a) Transitory Digital Network Communications.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if—
(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;

(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;

(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;

(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and
(5) the material is transmitted through the system or network without modification of its content.

The only possible problem I can see with YouTube is that they alter the content to encode it properly and that might interfere with point 5. This was the contention in the Universal v. MySpace case which was filed a while back. However, since it is automated and does not modify "the content" only the form, I think YouTube is safe.

Anyways, here's the debate:

RIAA: Sultans of Spin

2007-04-08T17:59:00.000-05:00

The folks over at p2pnet have a survey about the "spin masters" at the RIAA. Check it out.

Tobacco, Gambling and Piracy?

2007-04-04T22:05:00.000-05:00

Since the beginning of digital copyright enforcement, proponents of copyleft have searched for somewhere to place servers full of pirated material. In 1999, at the height of the bubble, Ryan Lackey tried to transform the questionably autonomous sea platform of Sealand into a "data haven." More recently, the torrent site The Pirate Bay tried to purchase the platform off the coast of England. The plan failed, but the hope lives on.

Wired's Epicenter blog brings the story of entrepreneurial individuals hoping to transform Native American Reservations into modern day "data havens."

Jim Griffin found a legal precedent indicating that "Congress hadn't intended Indian tribes to be covered by copyright law, and that the exemption extends to their off-reservation commercial endeavors."

As Lessig pointed out in his first book, Code, and Tim Wu did in his recent book, Who Controls the Internet, cyberspace is very much under the control of real space. Were tribes to begin such businesses, the RIAA and MPAA would just lobby for increased control which would probably limit gambling and tobacco sales -- something the Native Americans definitely don't want.

90% of YouTube Video is Not Infringing

2007-04-03T17:35:00.000-05:00

A new report by Vidmeter, an industry analyst, says that only 9.23% of videos on YouTube are found to be infringing and removed by copyright holders. These clips account for even less of the views on YouTube - 5.93%.

By recording the number of views on the most popular clips several times a day and determining which were removed as copyright infringement, Vidmeter learned that the vast majority of YouTube content is, in fact, user generated and legal.

Viacom, the media giant suing Google over YouTube, is far and away the "victim" of the most "infringement" with 40 percent of the 9.23% being removed by Viacom DMCA take-down notices. In other words, 3.7% of videos on YouTube allegedly infringe upon Viacom copyrights.

Though I have my reservations about the exact methodology for determining infringement -- they used a successful DMCA take-down as "evidence" of infringement -- the study does provide true data which shows YouTube (and its peers) are not hotbeds of infringement.

Caveats in EMI/Apple News

2007-04-02T10:01:00.000-05:00

As reported earlier, the entire EMI catalogue will now be available for sale without DRM in the iTunes Store. However, hidden in the Apple and EMI press releases are some caveats:

DRM free music will cost $1.29
Users can remove DRM for $.30 per song
EMI will continue to use DRM (on the Zune?)
EMI Music will continue to employ DRM as appropriate to enable innovative
digital models such as subscription services (where users pay a monthly fee for
unlimited access to music), super-distribution (allowing fans to share music
with their friends) and time-limited downloads (such as those offered by
ad-supported services).

It is a step in the right direction, but the cost increase shows that they are still scared of piracy.

Confirmed: EMI Drops DRM in iTunes

2007-04-02T07:22:00.000-05:00

Here is the press release.

EMI to Drop DRM

2007-04-01T22:38:00.000-05:00

The WSJ is reporting that EMI will drop DRM in a deal with Apple tomorrow. I imagine they will also introduce the Beatles into the iTunes Store. I will buy a ton of EMI music if this is in fact true.

RIAA's Decision Matrix

2007-04-01T20:33:00.000-05:00

Gizmodo points us to this hilarious image which is appropriate for this particular day:
Did you boycott the RIAA last month?

Overreaching Copyright Notices

2007-03-23T18:27:00.000-05:00

Continuing in my series on which extend past their duty and rightful place, I have the "Copyright Policy" for a popular blog, Digital Inspiration by Amit Agarwal:

* If you want link from your site to Digital Inspiration

You are welcome to use short quotes from Digital Inspiration in your website or blog as long as proper credit is given. But please quote only short excerpts - up to one paragraph - from my site when you make the link.

You must credit Digital Inspiration when you quote. Always provide a hyperlink (full URL) to the article where the quote is from. Don't hyperlink just to the homepage. Copy quoted material exactly, enclose it in quotations marks, and mention Digital Inspiration immediately before or after the quote.

For Print media: you must print the full Internet address of the post.

What Amit is describing above is fair use and he cannot dictate how you exercise it. The beauty of the right of fair use is that it does not require the support or agreement of an author. He is right that I am "welcome to use short quotes from Digital Inspiration," but in contrast to what he would have you believe, the length can easily be longer than one paragraph and I do not need to credit him (though it only makes sense).

American law has differed from Europe in that the USA has never set distinct principles for what constitutes fair use. Instead, a court must decide the reasonableness of the excerpt.

I really enjoy Amit's blog and hope he can capitalize on his hard work, but the danger of misinforming the public about copyright is that it threatens to influence a generation of zombies who accept strict content control.

Brief Intermission

2007-03-23T17:44:00.000-05:00

I will be out of the country for the next week so posting will be light. Fear not; posting will return with a vengeance.

As always, contact me by emailing kevin (at) copyrightings (dot) com

Google's Legal Battles

2007-03-23T13:35:00.000-05:00

The recent news that Viacom has sued Google puts two major legal battles in the hands of Google's legal department. Let's take a look at them:

Google Book Search Suit

Google is currently scanning millions of volumes at the major libraries of the world. The books they have scanned are being made available for search. They are scanning books with three legal statuses:

1. Public Domain Works
These books have no restrictions as to how they can be reproduced. In fact, many, including Microsoft, Yahoo, Project Gutenberg and the Internet Archive, are in the process of making public domain books available online.

2. Copyrighted and Out-of-Print Works
For these books which are no longer available and often do not have a readily findable copyright owner, Google is providing snippet search results. That is, you can see the term for which you searched and a few lines of context. The Authors Guild and publishers who are suing Google still object because they are afraid of the future. Oh, I mean, they object because Google is still copying the entire book even if they are only showing a fair use portion.

3. Copyrighted & In-Print Works
Google is displaying these works as either card catalogue entries or through snippet access.

The suit is most likely just a business negotiation which happens to take place in the court room (sad, I know), but what does the law say?

Google is copying massive amounts of copyrighted material. The scale of this project is like nothing in the history of mankind. However, for copyrighted works, they argue that they are only providing fair uses of the material. The case really rests on whether or not the court finds that the initial act of copying is transformative enough to constitute fair use itself.

Google will argue that because the copied material does not affect the marketability of the books until it is displayed, the initial copying satisfies that requirement of fair use. Secondly, the ability to search through millions of books and find information like never before adds a value that books previously did not have. Further, Google is experimenting with mapping the locations mentioned in a book and linking books together which further transforms it to a different product than just a plain old book.

It is worth mentioning that if the case does go to trial and Google loses, the entire web search business (and thus the utility of the Internet) would drastically decline. In order to provide Internet search, Google creates a copy of every web page (which are copyrighted) and then provides snippet access to those. While publishers might argue that it is different because Google links to the original works, using Google Book Search will show that they provide numerous links to purchase the physical book at different sites.

Viacom v. GooTube

The future of Internet video hinges on this case which, in my opinion, stands a better chance of going to court. Viacom, one of the major content production companies, has sued Google-owned YouTube for copyright infringement. This case is more dependent on statutory law than the previous which will rely on legal precedent.

The Digital Millennium Copyright Act provides Internet Service Providers a "safe harbor" where they cannot be sued are they to comply with a written request to remove a users copyright-infringing material. This section of the law was a compromise between the telcos, who recognized they could not monitor what their customers used the Internet for, and the content industry, who wanted an easy way to remove what they thought was infringing material.

In practice, this law has applied to both ISPs and websites which host user submitted material. For example, in February, Viacom sent YouTube 100,000 notices of infringing material which was subsequently removed by YouTube. Much of this material was Daily Show clips or South Park shorts. Although forward looking business people recognize the value of this exposure, Viacom apparently feels that it can do better without introducing people to their shows on the most popular video site in the world.

Viacom argues that YouTube has a duty to remove infringing material. According to them, because YouTube scans for and removes pornography they should be able to remove infringing material, too. In fact, it has been reported that Google was willing to remove infringing material for those who would agree to provide their material officially for the service.

However, the DMCA clearly places the burden on the copyright holder to police his works and provide notice of its infringement. Statutory law is in favor of YouTube.

Case law, on the other hand, might not be. The Grokster Supreme Court decision created a new test for technological innovation. Under the ruling which found Grokster liable, a technology and its provider may be liable if the technology "induces" copyright infringement. The prevalence of copyrighted works on YouTube would seem to suggest that consumers use the service for sharing copyrighted works, but bear in mind that YouTube has a strict terms of use, limits length to 10 minutes and readily complies with DMCA take-down notices. Lessig calls the Grokster test a monster and it will certainly rear its head in court.

In general, I am less worried about this case than the book case because of the implications. The Book Search case has the possibility of shutting down one of the greatest knowledge aggregations in history. The unification of centuries old information with digital technologies opens up astounding possibilities for future scholars. As for YouTube, even though Viacom may succeed and Google may have to pay $1 billion, it will survive and Internet video will continue as Viacom provides official versions elsewhere.

I'll be sure to update you on these cases as they develop both here and on my link blog.