Blogger's archives seemed to be screwed up. If you come to the blog from the RSS feed, all my recent posts are missing. The RSS feed points to the permanent copy of the post on the archive page, which doesn't currently exist. I am temporarily modifying the feed to point to the copy on the front page. If you are linking to specific posts, I would encourage linking to the correct archive permalink, in the expectation that the archives will start working again so the links will work correctly in the future.
Friday, August 08, 2003
Thursday, August 07, 2003
The League of Extraordinary Gentlemen is a comic book and now a movie adaptation that is a testament to the value of the public domain. The premise is that all Victorian era fantastic literature is true, and characters including Sherlock Holmes, Dr. Jekyll and Mr. Hyde, Mina Harker (from Dracula), Captain Nemo (from 20,000 Leagues Under the Sea), The Invisible Man, and many others interact and respond to threats from their own books and other novels of the period. The League of Extraordinary Gentlemen could not exist without a wide range of literature in the public domain to pull from, and fans would undoubtedly say that the end result is more than the sum of its parts.
The comic book has a devoted following and the movie had high hopes, which were sadly let down. Writing in Newsweek, Brad Stone offers a reason for the failure of the movie. Copyright law ruined the movie. While all of the original books that form the basis for the movie are in the public domain, movie adaptations of the books are still covered by copyright. Stone argues that changes were made to the movie version out of fears of copyright infringement claims from the movie studios. These changes sucked the detail and life out of the movie.
While I doubt that this is the whole story, there's no question that The League of Extraordinary Gentlemen stands as an example of the value of the public domain and the harm of excessive copyright laws. (from Lessig Blog)
The New York Times reports that "ReplayTV's New Owners Drop Features That Riled Hollywood" (cache). As I've covered previously, ReplayTV is removing the ability to skip commercials and to forward recordings to other users from their video recorders. The Times article focuses on the apparent shift of power from electronics manufacturers to entertainment companies. Doc Searls reminds us that a major factor in television is that viewers don't pay for it; advertisers do. (from FurdLog) That fact has a significant warping effect on the industry and the industry response to new technology.
[Updated 8/11 10:36 PM] Streamcast has a press release announcing the next round in file sharing software. One of the major new features of Morpheus 3.2 is the use of public proxy servers to obscure the identities of the source and recipient of the file. Rather than directly connect to each other, both users connect to the proxy, which acts as an intermediary. I would think that this would make any proxy servers targets of the music and movie companies. I'm also concerned that by deliberately obscuring the users, this runs into the Madster ruling and Streamcast could now be found liable for contributory copyright infringement. Also, if the proxy servers are implemented in a way which allows record companies to become a proxy server and track the data that passes through the server, that would actually increase their ability to pursue individual users for copyright infringement. (from FurdLog)
update 8/11 10:36 PM: A Copyfighter's Musings is wondering about the implications of the DMCA for proxy servers.
Wednesday, August 06, 2003
The New York Times reports that an "Amazon Plan Would Allow Searching Texts of Many Books" (cache). The plan is to allow customers to look up information in any of the nonfiction books they sell but to restrict how much of a book any one person can read. This is obviously way cool. If you're not thinking, "I've gotta get me some of that action," there's probably something wrong with you. The major difficulty is copyright issues. Amazon is working to convince publishers that this will result in higher sales. My response is that this is so obviously useful that Amazon should just do it and figure out the legal issues later, but unfortunately, that's not the way the world works. (from Aaron Swartz: The Weblog)
Doc Searls is talking about "Saving the Net". This piece covers a lot of ground, all of it important, but I want to focus on what he says about property. He quotes Duhaime's Law Dictionary, which points out that the popular understanding of property is that it belongs to someone and that person has control over it. But that's not what property is. All property is a set of rights, granted by law. That's why I grudgingly accept the idea of copyright as property. The advantage of this perspective is that saying that copyright is property says that copyright is a set of rights, without defining what those rights are. It makes it much easier to say that "your song is your property, but I can use it in certain ways without your permission," which is what I think copyright is ultimately all about.
[Updated 8/15 12:19 PM] In case you missed the news, the "RIAA floods U.S. District Court with file-sharing subpoenas". In other words, the RIAA is suing everyone. As of this article, from July 18th, the RIAA had issued 871 subpoenas to learn the identities of accused file sharers, with 75 new subpoenas coming per day. Remember that the RIAA doesn't have to offer any evidence at all to request this information. This is harassment, plain and simple. (from JD's New Media Musings)
Update 8/7 1:01 PM: Wired News reports that MIT and Boston College are fighting the subpoenas against their students. The majority subpoenas have been directed at cable modem and DSL service providers, but a relatively small number of subpoenas have been sent to universities.
Update 8/11 5:33 PM: The New York Times has an article with reactions from some of the targets of the subpoenas (cache).
Update 8/11 6:16 PM: PacBell, a subsidiary of SBC, is fighting the subpoenas (cache). The article also reports that Senator Norm Coleman is questioning the DMCA, which provides the legal basis for the subpoenas.
Update 8/12 6:33 PM: Wired News reports that universities and the RIAA are negotiating on solutions to copyright infringement.
Update 8/13 5:30 PM: Slashdot has picked up on the negotiations between universities and the RIAA.
Update 8/14 2:44 PM: Lawrence Solum writes about the harm the RIAA's actions may do to their own cause. (from A Copyfighter's Musings)
Update 8/15 12:19 PM: For those looking for more reading on the subject, Mary Hodder has put together a huge collection of links over at bIPlog. Some links are repeats of things I've linked here, but many are new.
CNET points out a problem with the RIAA's plans to sue the world. WiFi "Hot spots elude RIAA dragnet". The cool thing about public wireless networks is that anyone can use them. The bad thing, from the record labels' perspective, is that anyone can use them. Anyone within range of the AirPort base station in my apartment, for example, can connect to the Internet and potentially engage in file sharing, and I won't have any idea. When the RIAA sends out those subpeonas to ISPs requesting the identity of the file sharers, wireless ISPs may not have any idea of who the user was. Too bad for the RIAA. See also the Slashdot discussion of the article.
FurdLog mentions the congressional hearing on the Piracy Deterrence and Education Act of 2003. I watched the webcast and took notes (unfortunately incomplete) which I intend to post soon. One of the big things I missed was the testimony from Linn Skinner, of needlepoint pattern copying fame. I'll have more later, but I feel like this was important and generally slipped by the copybloggers.
Aside to Frank: would it be possible for you to add permalinks to each item of your posts individually? It would make linking in easier.
In "Record Companies Escalate War on Customers and Fair Use", Dan Gillmor points out that although the RIAA is getting attention for going after individual music listeners, it is acting on behalf of its member music corporations. He calls the corporations thugs and robber barons and names names. His list includes Sony, Vivendi Universal, AOL Time Warner, and Disney, to which I would add Bertelsmann and EMI. When you buy products from these companies, you are enabling them to sue people like you. He also asks a good question: is anyone maintaining a list of record companies which are not members of the RIAA?
[updated 8/7 2:01 PM] Copyfight has a roundup on ACCOPS, which apparently I've been ignoring up to this point. ACCOPS (the Author, Consumer, and Computer Owner Protection and Security Act of 2003) would make any distribution of a copyrighted work on the Internet a felony offense by declaring that any Internet distribution is presumed to meet the 10 copy or $2500 threshold. Acts like reprinting song lyrics or a news article, forwarding a joke email, or copying an image and using it on your own website could result in a six month jail term under this bill. I certainly have violated this proposed bill, and although I'm not going to call attention to where, you don't have to look hard to find examples on this blog.
One reason why I'm not getting really worked up over this is because I don't believe it's really going anywhere. Representatives like Howard Berman like to propose things like this from time to time, but they usually don't go anywhere. I may be getting overly complacent. In any event, if one of the sponsors of the bill is your Representative, it wouldn't hurt to contact your Rep. and tell them what a bad idea the bill is. The sponsors are Conyers, Berman, Schiff, Meehan, Wexler, and Weiner.
Update 3:28: Other reporting that Copyfight points to includes Freedom to Tinker, Bricoleur, Light Reading (with an economic analysis on the benefit to the government), and ExtremeTech. Dan Gillmor has a better proposal. "Why Not Just Execute File-Sharers?"
I misstated the potential prison term for violating copyright. It's not six months: it's five years and $250,000. If this didn't have your attention before, maybe it has your attention now. The six month term is from another and equally loopy term of the bill.
Update 3:49: Furdlog points to a letter calling the RIAA on their claims that they are trying to protect the interests of the artists. This is a great piece in which the author states that this bill would actually harm him as a musician by taking away his distribution channel.
Update 3:57: Other fun links: Doc Searls calls the bill the Jail your customer industrial suicide act. (from FurdLog) RatcliffeBlog says "prison for fileswappers — dumbest idea ever". (from Doc Searls)
Update 4:53: FurdLog points out that this bill makes putting a file online a worse crime than shoplifting a CD. After all, shoplifting is a misdemeanor.
Update 8/7 2:01: Collecting musician reactions to the bill would be worthwhile. Dotmusic reports that Michael Jackson opposes the bill. He thinks the proposed punishment is too severe.
The appeal of the Grokster ruling is being accelerated. According to the article, this means the case could be heard in months instead of years. Grokster scored a legal victory against the movie and music industries when their copyright infringement suit was defeated. The appeal of that decision should not be a surprise. (from Copyfight)
Copyfight has the Blogalogue of the Day. (Of course, this was posted three weeks ago. I'm way behind.) Lawrence Solum and CE Petit have been going at it on copyright. Solum is a legal theorist and Petit is a copyright lawyer, and they end up on opposite sides of the copyright law argument. Petit started this by calling attention to difference in attitude between copyright academics (too much copyright is bad) and practitioners (more copyright is better) and Solum has been challenging Petit's reasoning. The discussion is like a compressed, but still well reasoned, version of the entire copyright debate. As an added bonus, Copyfight throws in a link to Richard Vermillion, who says that "property is the wrong metaphor [for copyright] all together, for several reasons."
There's enough going on here that I'm going to collect some interesting thoughts on both sides without trying to formulate any overall argument at this time. One significant point in Petit's thinking is that the behavior of individual copyright holders is different than that of corporate copyright holders, and current copyright law is appropriate for how individuals apply the law, but not for how corporations apply the law. However, many works (for example, movies and symphony recordings) are group creations which must be held by corporations. Petit doesn't offer a real solution to this conflict.
Solum writes about the failure of copyright laws to bring about behavior norms. As he says, "consumers see it as perfectly normal behavior to attempt to evade legal regulation. This ties into comments, presented for example in Lessig's Code and Other Laws of Cyberspace, about the interaction between various norms in controlling individual behavior. There can be a significant divergence, as there is in this case, between social norms and legal norms, but I wonder how long that is sustainable.
The focus of Solum's post is fairness in litigation, but both Petit and I have gotten distracted by his discussion of copyright. The issue of litigation costs is important to the recording industry's quest to sue all of its consumers and shouldn't be overlooked.
In reading a followup by Petit, I can't help thinking that Petit is deliberately distorting Solum's position. While decrying people who make copyright into an either/or proposition (in Petit's words, "The argument that one extreme's on-balance harms necessarily means that the other extreme is the correct position is the problem with the entire copyright-term debate."), Petit characterizes Solum as a proponent "of eviscerating intellectual property rights, whether by abolition of copyright or some other means". I can't help thinking that in casting Solum as an extremist, Petit is ignoring the fact that they both actually agree that current copyright law terms are too long. They may disagree on how long the terms should be, but qualitatively they are on the same side. Rather than starting with that point of agreement, Petit seems to be trying to create a conflict between the two of them by saying that Solum is trying to destroy copyright, while Petit believes in the necessity (both economic and Constitutional) of copyright.
Lawrence Solum, in his roundup of the discussion, links to Weatherall's Law, the blog of an Australian legal academic. Unfortunately, he didn't include a link the the relevant post, but I have tracked it down. Weatherall starts by gently questioning the division between academics and practitioners that Petit had set out and goes on to challenge some of Petit's reasoning.
Solum, while aggressively challenging Petit's arguments, also calls attention to points of agreement between himself and Petit. In particular, Solum thinks there is a legal need for protection against file sharing and that focusing on the flaws of the DMCA can obscure this need. Following on Petit's acknowledgement that copyright terms are too long, these statements give me hope that we can build a common ground and come to some reasonable agreements. Too bad the corporate copyright holders, vilified by Petit and Solum alike, don't appear to be participants in the discussion.
On the other hand, I have a fear that the discussion is on the verge of passing from mostly civil to an out and out flame war. Both sides seem a little too eager to declare that the other side doesn't know what their talking about, even if they conceal that in terms of their own failure to initially make their case and thank the other party for their participation.
Richard Vermillion, in his response which Solum posted at his Legal Theory Annex, makes a point which bears repeating. The exclusive right to publish and the published creation are two different things. The exclusive right (the copyright) is owned by the copyright holder, but the creation itself is not owned by holder. The only claim on the creation itself is the exclusive right to publish. The map is not the territory, and the copyright isn't the creation. This is a distinction which often gets lost, despite the fact that it is key to the current system of copyright.
Tuesday, August 05, 2003
Billboard reports on "Bertelsmann Seeking To Dismiss Suits Over Napster". Bertelsmann, one of the five major record companies, has been sued by two of the other major companies and a group of publishers for vicarious copyright infringement. They claim that by investing in Napster, Bertelsmann hoped to profit from the copyright infringement of the users of Napster. Bertelsmann states that copyright law doesn't allow recovery of damages from a third party lender, and Bertelsmann never profited from Napster anyway. (from GrepLaw)
"Lessig on Blogs, Eldred, and his Audi TT" is an interview with Larry Lessig at GrepLaw. Lessig evidently has a more whimisical side which doesn't get out very often, but comes through here.
It is the nature of hoover rolling that unexpected things happen during the course of the hoover roll. Some might go so far as to say that that is the point of rolling a hoover. In any event, unexpected events are not to be feared or fought. Anyone who wants to avoid things they haven't predicted shouldn't be rolling a hoover in the first place.
Readers of this blog may have observed several unexpected events and changes in plans that I have experienced during the last six months. I now have another unexpected event to report. After spending the last five years trying and failing to live in Somerville, I have finally succeeded. (The evidence that I've been trying to live here is principally based on the fact that I haven't lived here.) Moving has kept me fairly busy recently, but now I'm reasonably well settled, so between that and the conclusion of Carmen this past weekend, I expect to have some free time again. Hopefully I will be able to catch up on my blogging shortly.
The mere fact that I have moved, and on fairly short notice (I didn't firmly decide to move until mid-July and finished moving out of my old apartment on August 1st.), is only the start of the unpredictable nature of side events to a hoover roll. When I first moved to Cambridge just over five years ago, nearly everyone I knew in the area lived in one apartment. This is, in fact, the apartment I have just moved into.
I should stress that this was not planned. I decided to move without knowing where I would be moving to, and then found out that one of the occupants of this apartment was also moving and was seeking a replacement in the apartment. Whether this is fate or chance, I can't say, but since this was also the best offer I got, my choice was clear and here I am.
Now that things are (mostly) settled, I will be attempting to catch up on the blogging I haven't been doing recently. While I haven't been writing about other articles about copyright, I've been collecting them, so I'll be trying to work through the backlog. In the interest of expediency, my commentary will likely be lighter than it has been. Furthermore, since I will be posting links I've collected over the past two weeks, I will be editing my posts when necessary to collect related links. That is in contrast to my typical practice, in which I have generally only edited posts to make corrections. As in the past, I will identify any changes.
The hoover rolls on. . .