12:18 AM

I try to stay focused on copyright issues, but some events insist that I write about them even when they are off topic. Monday, the Supreme Court upheld the Children's Internet Protection Act. This law's effects are far beyond its name and are a major threat to public libraries.

The Children's Internet Protection Act (CIPA) ties federal funding of public libraries to Internet filtering software. In order to receive funding, libraries must install software blocking access to obscene Internet sites. At first glance, that may not sound too bad, but Internet filtering software is far worse than it sounds.

A short list of problems with the existing software includes blocking sites far beyond the legal requirements, including sites that have legitimate information purposes (sites like Planned Parenthood are frequently blocked), failing to block many sites that should be blocked, failing to check blocked sites for changed content (sites are frequently blocked even after ownership changes which result in completely inoffensive material, and secret blacklists, so there is no way to know which sites are even blocked except through experimentation. Seth Finklestein has been documenting the problems with censorware on Infothought, his blog.

CIPA was challenged on free speech grounds, but the Supreme Court ruled that the law does not infringe free speech and serves a legitimate social purpose. Librarians are appalled by this decision. Some libraries are choosing to forgo funding rather than inappropriately censor Internet access. The Shifted Librarian has been collecting responses to the decision.

The most important question in the wake of new laws and court decisions is "what's next?" TeleRead is proposing a library PAC to try to counter library threatening legislation. I suspect that's an uphill battle. There may be better luck in relying on (and contributing money to) general civil rights organizations like the ACLU.

I've started wondering about the demand for software that upholds the law and does no more. Seth Finkelstein points out the difficulty of getting it right in his response to Ed Felten's thoughts on the subject. I have to say that I'm with Seth. Doing it right is hard, and it won't be worth the effort if there isn't any demand. Nonetheless, Seth is saying that he'll support it if someone can demonstrate that the demand is there.

I'm violating one of my own rules if I don't tell you what you can do about this. Donate money to organizations that defend free speech. The American Library Association is an obvious choice. Remember that every time you spend money on books, music, movies, cable, and Internet access you are supporting groups that support laws which threaten free speech. Make a conscious effort to financially support free speech, because you unconsciously support the other side all the time. Contact your representatives in Congress and tell them that you oppose CIPA and laws which threaten the freedom of information. It's not hard and it makes a difference.

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12:16 AM

Long post, part 3. Blogger is misbehaving and forcing me to chop up this post. Be sure to read the earlier two posts to catch it all.

DVD Copying Paranoia

My Ro-bot Life links to an article laying out obvious truths about DVD copying. DVDs are encrypted to prevent copying. DeCSS is a program which breaks the encryption. The movie industry has gone to great, but unsuccessful, lengths to supress DeCSS. The article describes legitimate uses for DeCSS while pointing out that it doesn't even actually prevent people from copying DVDs. This has been said before but it bears repeating.

Peer to Peer Conference

There will be a conference on peer to peer technology and file sharing in Los Angeles on August 8th. The conference is called P2P Summit.

International Symposium on Music Information Retrieval

The International Symposium on Music Information Retrieval, to be held in Washington DC in October, sounds right up my alley. I wonder if I'll be able to make it.

Costikyan on Game Economies

Greg Costikyan writes about economics and virtual worlds. Edward Castronova is an economics professor who has been analyzing the economies of multiplayer online video games. Most famously, he has determined that players of the game Everquest earn $3.42/hour of gameplay. Costikyan disputes Castronova's conclusions.

I have an essay in development in which I talk about Castronova's research and what it means about property and by extension, copyright. These things take longer than planned, and in the meantime Costikyan is challenging the idea that something which only exists in a database somewhere on the Internet could be property.

I'll return to this eventually, but until then I recommend reading his post and asking yourself "what is property, anyway?" Whether you agree with Costikyan or Castronova depends on your conceptions of property, and the Internet has made that much more complicated, as it has for copyright.

Band Responses to the Internet

Ernie the Attorney points to a Washington Post article on the impact of the Internet on copyright law. He is enthusiastic about the approaches that some bands are taking to the Internet. I agree that that's good, but I think it misses the bigger point that copyright law and the Internet is very messed up.

Questions on the Future of DVD

The Shifted Librarian has a pointer to an article about the current success and future prospects of the DVD along with some comments. It's been demonstrated again and again that if they sell content, people buy it, but the movie industry gets so wrapped up in the issue of control that they can't see how good they have it.

Music Industry Catching Up with Internet

Record executives are starting to get it. Howard Stringer, head of Sony USA, has called the iTunes Music Store a "sea change". Now that someone has demonstrated that it's possible to sell music downloads on the Internet, the record labels are moving to embrace that. It's not all good news, though. He still doubts that online services can succeed without further cracking down on piracy. I'd suggest that putting more energy into selling and less into any perceived lost sales might be better for the music industry.

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12:12 AM

This is part two of the big post that Blogger choked on.

Wendy Seltzer on Orrin Hatch

Wendy Seltzer has a great post on the Orrin Hatch brouhaha which points out the problem with existing copyright laws and the Internet. Copying has become so easy that while violating copyright used to require deliberate action, now just about everyone does it all the time without thinking about it.

ReplayTV: Costs More, Less Useful

I've been remiss in keeping up with the ReplayTV story. This news is a few weeks old, but ReplayTV is removing features from the next version of their players.

To recap: ReplayTV is a VCR on steroids that has all kinds of cool features, such as automatic recording by program name and speculative recording of shows you might like. ReplayTV has been sued over two features, automatic ad skipping and sharing recordings with friends. SonicBlue, the parent company, declared bankruptcy and sold off ReplayTV to D&M Holdings, a stereo equipment manufacturer. I've posted details on this all over this blog, but I'm too lazy to find all the links. I've previously mentioned possibility that D&M would choose to drop the features rather than fight the lawsuit.

It's now official: ReplayTV is dropping the features. This is an obvious win for the TV and movie industry and a loss for just about everyone else.

State Enforcement of Copyright?

The Volokh Conspiracy seems to think that the NET Act isn't used enough. The proposed solution is to make criminal copyright infringement enforceable by the states instead by the Federal government. My question would be why copyright should be a criminal violation in the first place.

File Sharing Lobby

File sharing services are fighting the music and movie industry on their own turf by starting a Congressional lobby. These are certainly very exciting times, and I'm beginning to fear that I'm spending too much time blogging and will end up missing all the action. (from Tech Law Advisor)

Epeus' Epigone Hates Compulsory Licensing

Epeus' Epigone is standing by his previous comments on Jim Griffin, which I blogged previously. What it comes down to is that he is almost violently opposed to compulsory licenses, referring to it as nationalizing music in an attempt to damn it. I think he needs to calm down a bit, but a full range of viewpoints is always helpful if the discussion can remain reasonable.

"No Sale Doctrine"

Karl-Freidrich Lenz is proposing what he calls the "No sale doctrine", in which a copyright holder cannot pursue infringement claims on anything which they do not make commercially available. This is not the first time I've seen this idea, and I know people who only trade music with friends if the original CD is out of print. It's a reasonable concept, but I'm not sure it's reasonable law.

It seems like it would be difficult to enforce. Publishers would have an interest in claiming that a work is in print to prevent this from taking effect even if they are unwilling to make copies available for purchase. It's also complicated by the fact that the publisher controls whether a work is in print while the copyright holder may be the original author.

It is a reasonable reflection of the conceptual underpinnings of copyright. Copyright is a set of exclusive rights granted to increase the availability of information. If that end isn't being served, perhaps the exclusive rights should be taken away. On the other hand, authors and publishers sometimes deliberately stop selling things for which there is still consumer demand, and this would prevent that. Should copyright holders have that power? Disney certainly thinks they should. (from Tech Law Advisor)

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11:48 PM

Blogger has "upgraded" its interface and now I'm getting an error with this message. I'm going to to see if chopping it into parts helps, but if I need to do that, it will tend to cramp my style.

Someday I will learn not to let myself get behind because it's always more painful trying to catch back up. Until then, I'll keep making posts like this one.

Public Domain Enhancement Act Introduced in Congress!

Lawrence Lessig has announced that Zoe Lofgren and John Doolittle have introduced the Public Domain Enhancement Act in the House of Representatives. The Internet is all over the news. The Eric Eldred Act is a great source for news and information about the bill, Slashdot is discussing it, and BoingBoing is celebrating.

As a reminder, the Public Domain Enhancement Act would require copyright holders to regularly reregister their copyright and pay a nominal fee. This would allow copyrighted works which are no longer financially viable to fall into the public domain so they may be reused while allowing copyright holders to retain exclusive rights on works they still wish to control. The bill has been posted online as a PDF.

The petition supporting the bill which I blogged a few weeks ago was instrumental in getting Congressional support. We're not done yet. Call your Representative and encourage him or her to co-sponsor the bill. The bill is number HR. 2601.

File sharing lawsuits coming your way

The RIAA is planning to start suing hundreds of individuals for file sharing. The court ruling in favor of Streamcast and Grokster, which ruled that some companies which produce file sharing software are not liable for copyright infringement, has forced the RIAA to go after individuals. The result of lawsuit against Verizon is that the RIAA can get the identity of anyone they suspect of filesharing without having to go to court to get it. In combination, they mean that the RIAA is going to start suing everyone they can.

Like the Public Domain Enhancement Act, this is getting wide attention. Articles have appeared on the Washington Post, Slashdot, Boing Boing, and Tech Law Advisor. The EFF has issued a statement, stating that "the dinosaurs of the recording industry have completely lost touch with reality."

Hulk Leak Pleads Guilty

I recently covered the controversy on Ain't It Cool News regarding a copy of The Hulk which had been leaked to the Internet. The movie studio didn't waste time pursuing the leak. Kerry Gonzalez has plead guilty to copyright infringement in the case. He faces six to twelve months in prison and a fine of up to $250,000.

Reflexively, what he did seems worse (and therefore more deserving of punishment) than putting an MP3 online, but I find myself questioning that. He received a promotional videotape of the unfinished movie from someone connected with the movie, copied it to his computer, and shared it on a website, from which it spread to users around the Internet.

I think the reason it feels more wrong than copying a CD and putting it up on Kazaa is that he was working from a pre-release copy of the movie and he violated the movie studio's right to control the initial availability of the movie. But when the Radiohead album Hail to the Thief was leaked online months before the album was released, I tended to mentally blame the record label for allowing the copy to get out. Perhaps I would feel differently if an individual had been accused of leaking it, as has happened here.

The impact that the leak had on the movie's theatrical performance is uncertain. The Hulk sold nearly $63 million in tickets its opening weekend, setting a record for the month of June. Despite negative reports about the movie based on the leaked copy, the movie does not appear to have been harmed by the leak.

Is it reasonable to claim "no harm, no foul?" And if not, is a prison sentence of a year and a fine of $250,000 a reasonable punishment? This case is the first conviction under the NET Act which makes distribution of copyrighted works on the Internet a felony crime. As such, it's something of a test case. The prosecution will no doubt want to make an example of him, while his lawyer will be seeking leniency, claiming that he didn't realize the consequences of his actions.

For comparison purposes, Massachusetts law puts an upper limit of two years imprisonment and a $25,000 fine for larceny of greater than $250. Copyright infringement is a felony under the NET Act if the value of the infringing material exceeds $1000. I think it's fair to ask whether the value of the copy of the movie exceeded $1000, but the guilty plea makes that question moot in this case.

DirecTV Goes Ballistic on Copyright

The music industry is really following in the steps of satellite television, as described on GrepLaw. DirecTV's activities are being called a witch hunt as customers claim they are being unfairly targeted. I wonder how long it will be before the RIAA gets described in similar terms.

Paper Analog Hole

The movie industry lives in fear of the "analog hole." The movie industry is reluctant to allow high definition broadcasts of movies because of fears of copying. The proposal that they are working towards is a digital broadcast, encrypted to prevent copying. The problem is that existing high definition televisions require an analog signal, and converting the signal to analog so it can be displayed on these televisions would allow the signal to be copied. This is the analog hole, by which copy restricted materials can be copied.

The bad news is that the analog hole exists in the book industry as well. Less than a week after the new Harry Potter book was released, someone has scanned all the pages in the book, generated a computer file of the book, and posted it on the Internet. This is essentially the analog hole as applied to books rather than television. Information wants to be free. A failure to come to terms with that won't change it.

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1:02 PM

Compulsory licensing is back. After dropping from the copyright conversation for a few weeks, it's been picked back up in several quarters. I'm still not sure I approve of compulsory licensing on the Internet, but if the discussion slows down the RIAA in its attempts to stomp all over its customers, I'm all for it.

Compulsory Licensing as Response to Privacy Issues

bIPlog supports continuing discussion of compulsory licensing. Mary Hodder points to an article in the Boston Phoenix which points out how screwed up the copyright enforcement on the Internet is.

The article claims that there are 43 million users of file sharing software, all of them presumeably infringing on copyright. The current approach of the RIAA of singling out individual violators and hammering them in court is grossly unfair. The article turns to Jonathan Zittrain and William Fisher and their suggestions of compulsory licensing as a way to restore the balance.

Jim Griffin Congressional Testimony

Epeus' Epigone covers the testimony of Jim Griffin before the Senate Judiciary Committee. Jim Griffin is the CEO of Cherry Lane Digital and has a history of working in the music industry. He also is a founder of the Pho lunches and mailing list.

Griffin discusses information (and music) in the age of the Internet. He states that the Internet has made the cost of information distribution nearly zero, which means that it is nearly impossible to charge for information. Information has transformed from a product to a service, and compulsory licensing is necessary to keep the music business from collapsing.

Epeus' Epigone originally had a post criticizing Griffin for "nationalizing" music. Kevin Marks pulled the post after Griffin said he was being mis-characterized, but I think it's fair. Marks says he will read the testimony more carefully and is holding off on commenting until then. I grabbed his post from the Google cache and am reprinting it below. If Griffin thinks Marks' comments are unfair, he should challenge them more specifically.

Why Jim Griffin shouldn't nationalize music

By all reports, Jim Griffin spoke eloquently of his dream to preserve music by nationalising it. He has spoken to congress about it before.

His suggested scheme plays into the heart of the democracy debate, because he does not trust the public. He does not believe they will voluntarily pay for music, so they must be coerced.

Jim is a good man, and I'm sure if he were given control of disbursing the taxes on computers he would try to do it fairly and well, but I don't believe he'd get the job. I think the kind of regulatory capture we have seen before would take place, and the placemen for the big publishers who feel most threatened by a widening of the market would divert the revenues to themselves.

The iTunes music store and others like them show that people will voluntarily pay, when they perceive a fair deal.

This is the zeroth law of economics. Uncoerced trades create value, as both parties perceive a benefit, or they don't trade. Coerced trades destroy value.

To increase the funds for art in a sustainable way we need to come up with models that provide that perceived value.

RIAA Acts Against Revealed File Sharers

The RIAA has sent cease and desist orders to five people it suspects of copyright infringement. Four of the recipients use Verizon DSL to connect to the Internet while one uses Earthlink. The RIAA requested the identities of its targets under the DMCA, which doesn't require any evidence of wrongdoing other than the assertion of the copyright holder. Verizon has been fighting the RIAA in court, but was recently compelled to reveal the identities of its customers. The RIAA has not indicated whether it intends to take further actions.

Senate Involvement in Verizon Case

The Senate Commerce Committee is looking into the way that the DMCA was used to compel Verizon to reveal the identities of suspected file sharers without due process. Reuters has the details in the article, "Senate to Examine Online Copyright Dispute". Hopefully Congress will gain an understanding of how unbalanced the DMCA is and will move to correct it.

Copyfight has more discussion of the DMCA hearings. The bad news is that the House could block the good the Senate is doing.

Senate Committee Overturns New FCC Rules

The Senate Commerce Committee has voted to reverse the new FCC rules deregulating media ownership. Under the new rules, the maximum number of television stations that one company could own had been increased and cross-ownership restrictions that prevented a single company from owning television stations, radio stations, and newspapers in the same market were overturned. The new rules provoked a massive public outcry despite the fact that the FCC attempted to minimize public involvement and major news outlets, which generally support the new rules, failed to adequately cover the subject.

Senators Ted Stevens and Ernest Hollings proposed the new bill, which would roll back the rule changes and explicitly allow the FCC to both increase and decrease regulations in the future. The FCC argued that it was under a Congressional mandate to decrease the regulations and was therefore compelled to make the changes it did.

The fate of the bill is uncertain. While the Senate may vote for the bill, Billy Tauzin, head of the House Energy and Commerce Committee, has stated that he will block the changes.

Activism for Everyone

TeleRead is promoting more widespread copyright activism. David Rothman is encouraging libraries and education groups to publicize Congressional voting records on copyright issues, and he thinks the PTA and the AARP should get involved, because of the impact changing copyright laws has on these groups. I'm all for it.

Bill to Sic FBI on File Sharers

Now's a great time to increase activism, too. Reps. Howard Berman and Lamar Smith has proposed a bill to require the FBI to go after file sharers. Last year, Berman proposed that copyright holders be legally permitted to hack into computers of suspected file sharers, so this isn't a new line for him. Really, doesn't the FBI have better things to do? Among other things, copyright infringement is a civil offense and making the government directly responsible for enforcement effectively raises it to the level of a criminal offense. Unsurprisingly, the RIAA and MPAA support the bill.

Supreme Court Lets Contracts Preempt Copyright

The Supreme Court has denied certoriari in Bowers v. Baystate. Under copyright law, reverse engineering is protected as fair use and is therefore not a copyright infringement. Bowers wrote software which included a shrinkwrap license prohibiting reverse engineering. Baystate reverse engineered the software, which led to lawsuits on patent, copyright, and breach of contract claims.

The Appeals Court held that contracts can modify copyright law under some circumstances and in particular can restrain fair use rights. The fair use doctrine, which is codified in the Copyright Act of 1976, states that certain uses of copyrighted materials which would otherwise be infringing qualify as "fair use" and are therefore not infringing.

The Supreme Court has held that reverse engineering is fair use and is therefore not a copyright infringement. The software produced by Bowers included a shrinkwrap license which prohibited reverse engineering. A shrinkwrap license basically asserts that in purchasing and using a piece of software, the user must agree to a contract written by the software publisher. The Appeals Court held that the shrinkwrap license is a binding contract and that the reverse engineering clause is not preempted by copyright law.

Baystate appealed the ruling to the Supreme Court and the Court has denied the appeal. There are two issues here. First is that Judge Dyk's dissent to the Appeals Court ruling states that the Fifth Circuit Appeals Court has held that copyright law and fair use does prevent contracts from restricting reverse engineering. If Dyk's interpretation is correct, then the Supreme Court has refused to resolve the conflict between the two Appeals Court rulings.

The larger issue is that this ruling implies that any copyrighted material can be sold with a license that prohibits fair use. Fair use is already subject to inadequate court protection, and now it can be flat out denied. I generally think that fair use is overrated because it doesn't go nearly far enough in protecting the rights of the public, but this ruling says that even those limited rights can be stripped away by the copyright holder. This is another step in making the traditional balance of rights under copyright law entirely one sided and favoring the copyright holder at the expense of the public.

Steven Levy on DRM

Steven Levy has written a Newsweek article about the harm caused by DRM. It's a reasonably intelligent discussion of the pros and cons for a general audience.

One quibble I have with the article is that he says "We do need legislative help in keeping DRM under control," but he doesn't acknowledge that legislation is what gives DRM its current power. Without the DMCA, there would be no legal enforcement for DRM, which would likely change the approach of copyright holders to the use of DRM. (from JD's New Media Musings)

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