The EFF has published Jane Doe's Motion to Intervene (as a PDF) in RIAA v. Verizon. Jane Doe is the target of one of the subpoenas the RIAA has filed to learn the identities of file sharers. Doe argues that although the subpoena is against Verizon, she has a personal interest in quashing the subpoena because it is her personal information that will be revealed if the subpoena is followed. Good stuff. (from Joho the Blog)
Friday, August 29, 2003
Wired has an article by Bruce Sterling which repeats all the worst exaggerated fears of the changing value of information on the Internet. It's disappointing to see this sort of thing coming from a well-known (fiction and nonfiction) technology writer.
Thursday, August 28, 2003
Derek Slater has returned from his vacation. He brings further discussion on the legality of file uploading and downloading with him. He and I have already pretty thoroughly discussed this, as indicated by the links he includes, so I'm not going to take up the substance of the discussion again. I'm just going to point out that the ultimate legal disposition of this issue depends on which metaphors and analogies the courts choose to accept. Until we get a definitive ruling, it's still up in the air. If there's any good to come out of the RIAA's lawsuits against individual file sharers, it will be in the courts directly addressing this question.
Wednesday, August 27, 2003
The New York Times has a tribute to Jack Kirby (cache) that demonstrates the wheel of creativity. Jack Kirby created many classic comic book characters including the X-Men, the Incredible Hulk, the Fantastic Four, and Captain America, for starters. The article traces his influence on movies from Star Wars to The Matrix, in addition to the movies based on his characters which appeared this year. At the same time, the article notes the influences that movies had on his comics. This is creativity in action. Taking something old to make something new, so it can in turn be used by the next creation.
More on Bunner: FurdLog presents his analysis of the ruling. He is concerned by the ruling's analysis of whether the injunction is content based or content free. (That should really be "content independent." The point isn't that there's no content in the enjoined speech, but that the the injunction is independent of the content of the speech.) I don't quite follow Frank's thinking here. He is focused on the fact that DeCSS is both speech and "meta-speech" because it provides access to other speech, and says that this places it in a legal blind spot, but I feel like I don't grasp what his point is.
Infothought raises a good point about reverse engineering and trade secrets. Trade secrets are explicitly not protected against reverse engineering. Does a shrinkwrap license prohibiting reverse engineering protect trade secrets? The DVD CCA seems to be arguing that it does, but at least one judge in the case disagrees. Judge Moreno states that
nowhere has it been recognized that a party wishing to protect proprietary information may employ a consumer form contract to, in effect, change the statutory definition of "improper means" under trade secret law to include reverse engineering, so that an alleged trade secret holder may bring an action even against a nonparty to that contract. Moreover, if trade secret law did allow alleged trade secret holders to redefine "improper means" to include reverse engineering, it would likely be preempted by federal patent law, which alone grants universal protection for a limited time against the right to reverse engineer.
In other words, even if it was accepted that trade secret protection could be extended by a contract, it would violate patent law. I wonder how far this would go toward invalidating reverse engineering provisions of software licenses in general.
GrepLaw has an interview with Glenn Peterson. Peterson represents a target of the RIAA subpoenas who is fighting the constitutionality of the subpoena. The interview indicates Peterson's legal strategy and shows how unreasonable and potentially harmful this subpoena power is.
Tuesday, August 26, 2003
It tends to suck when all of your applications "unexpectedly quit" at the same time. Especially when you've been collecting links all day in a file you haven't saved. But that's my problem. On to DVDCCA v. Bunner.
The ruling is online (as a PDF). CNET has a story. The EFF has a press release. Blogs with coverage include Slashdot, Lessig Blog, FurdLog, bIPlog, Dan Gillmor's eJournal, Bag and Baggage, Tech Law Advisor, Scrivener's Error, Infringing Actions, Freedom to Tinker, and The Volokh Conspiracy.
Before I get involved in the details of the ruling, I want to review the context. Commercial DVDs have a form of encryption called CSS (Content Scrambling System). CSS doesn't prevent the DVDs from being duplicated. It prevents them from being played on unlicensed players. Part of the purchase price of an DVD player is a licensing fee paid to DVDCCA for the software to decrypt CSS. A group of people in Europe reverse engineered a DVD player and wrote a program called DeCSS to decrypt (and watch) DVDs without a licensed DVD player. DeCSS was released on the Internet and promptly spread everywhere.
There have been three significant lawsuits regarding DeCSS. The first was a lawsuit in Norway against Jon Johansen, one of the people involved in the reverse engineering effort. He was acquitted, but the case is being appealed. The second was against Eric Corley for publishing the code for the program (and later links to the code) on the 2600 Magazine website on the grounds that DeCSS is a copy protection circumvention device restricted by the DMCA. Corley argued for a First Amendment defense on the grounds that he is a journalist and the code is protected speech. The court ruled against him and required him to remove the code and links to other sites that listed the code.
Like Corley, Andrew Bunner posted the code for the software on a website. In this case, the DVDCCA sued Bunner under trade secret law. The district court issued a preliminary injunction against Bunner which was overturned by the Appeals Court on First Amendment grounds. The DVDCCA appealed to the California Supreme Court, which leads us to the present ruling.
The question being addressed is whether a preliminary injunction against publication of a trade secret violates the First Amendment. The first issue is whether computer code is speech. The California Supreme Court agrees with other rulings which have held that it is speech, and therefore is entitled to First Amendment protection.
In analyzing whether trade secret law and injunctions against publishing trade secrets violates the First Amendment, the ruling is quite eager to establish information as property and cites a significant number of other rulings which draw the same conclusion. This makes me nervous. I am somewhat undecided on the merits of information as property, but the court definitely is not. I am concerned that this will lead the conclusion that the holder of a piece of information is entitled to the same rights with respect to that information as the holder would have with respect to a piece of physical property, which definitely would be going too far.
There's some definite doublespeak going on with regards to trade secrets. Trade secrets are said to prevent the fragmentation of scientific research. Unless I'm missing something, restricting access to a piece of information to a select group itself is a fragmentation of knowledge, so I'm not sure how that restriction is supposed to reduce fragmentation.
The next issue is the relative speech rights of information of "public concern" vs. "private concern." This makes me nervous a lot. What's the difference? I have to somewhat grudgingly admit that the court seems to be drawing a reasonable distinction in this case.
The court ruled that the First Amendment does not prohibit injunctions under trade secret law, but it leaves open the question of whether CSS is indeed a trade secret. It remands that question to the Appeals Court for reconsideration. Judge Moreno would go a step further and rule that the injunction is a prior restraint and the preliminary injunction should be overturned unless the DVDCCA is likely to win at trial. He then goes on to conclude that CSS cannot be considered to be secret because of its widespread availability on the Internet and therefore the preliminary injunction should be overturned.
So the next step is to return to the Appeals Court. The crazy thing is that this is still just the preliminary injunction stage. Regardless of whether the preliminary injunction is overturned, the case will return to the district court for a decision on the case, and then the whole appeals process can start again. The case started in 1999. Who knows when it will end?
FurdLog has info on MIT's response to file sharing subpoenas. MIT had contested a previous subpoena because it was issued by a Washington court. The RIAA has stated that it will reissue the subpoena from a Boston court, and MIT states that it will comply with the new subpoena.
bIPlog has a Technology Review article on "The Customer as Enemy". As the article says, this mentality is perverse and will lead to customers not adopting new technologies. In an ideal world, everyone wins scenarios would be developed. Instead we get everyone loses approaches.
The California Supreme Court has ruled that DeCSS is a trade secret and not eligible for First Amendment protection. DeCSS is a program that cracks the encryption on DVDs, which is known as the Content Scrambling System or CSS. DeCSS was developed in Europe, in part by Jon Johansen, by reverse engineering DVD player software. Andrew Bunner posted the code for DeCSS to a website and the DVD Copy Control Association sued to force him to remove the code.
The DVDCCA asserted that DeCSS was a trade secret. Bunner's defense was that computer code is speech protected by the First Amendment. Bunner lost the initial court ruling, won at the Appeals level, and has now lost at the California Supreme Court. I'm not certain what possibility there is for appeal at the federal level. The ruling is based on the Uniform Trade Secrets Act, a state law.
I'll have more as I learn it.
Monday, August 25, 2003
I'm trying to figure out how to respond to TeleRead's comments. The big issue is that I think we're talking past each other, which drives me crazy. I think the most I can do is point out some differences between his thinking and mine, and after that I have to let it go.
First, I should identify an error that I made. In my first post on TeleRead, I incorrectly stated that TeleRead is a voluntary payment scheme for online content. That is not correct, as David Rothman has since made clear to me. Payment is not voluntary, but publisher participation is, which makes the plan distinct from compulsory licensing schemes. I had intended for my more recent post to correct my previous description of the plan, but apparently that wasn't clear.
Second, David and I are focusing on entirely different problems. David's first concern is increasing access to books. TeleRead's goal is to create a mechanism to guarantee that books are available to everyone, regardless of their financial situation. My concern is that copyright holding corporations want to prevent access to their copyrighted works, except on their terms. As far as I know, book publishers aren't saying, "We wish more people were reading our books, but we just don't have a way to give them access." There are, however, plenty of companies trying to take away access to files on the Internet. They aren't really succeeding, but they're doing lots of damage as they try.
Third, I criticized the TeleRead plan for being vague. To me, it makes the plan unclear, which makes it harder to support. David presents that vagueness as flexibility.
Fourth, we have different attitudes about DRM. As I see it, there are two kinds of files. There are files which anyone can manipulate in any way, and there are files which can only be used by certain people (or certain computers) in certain ways. Any restrictions on how a file can be used are a form of DRM. Any scheme which proposes either payment or tracking for file downloads has a choice. The files can be unrestricted, in which case there's no way to guarantee accurate payment or tracking, or the files can be restricted, in which case the publisher needs to decide on the restrictions and the implementation. I see these decisions as central to any Internet distribution scheme. TeleRead glosses over them.
I could respond to the specific points that David brought up in his response, but I think that would be missing the point. Instead, I think the differences in how we choose to frame issues of online distribution outweigh the resulting differences that we have on the issues themselves.
I've gotten a few responses to posts from last week which I should acknowledge. I criticized "The Escalating Copyright Wars" for not sufficiently describing nonzero-sum approaches to copyright. Peter Yu wrote to me to mention another paper he has written, "Toward a Nonzero-sum Approach to Resolving Global Intellectual Property Disputes: What We Can Learn from Mediators, Business Strategists, and International Relations Theorists", which discusses the merits of the nonzero-sum approach. He also indicated that he is working on a followup article specifically on the music industry response to file sharing.
I was fairly aggressive in my criticism of TeleRead. David Rothman has responded on the TeleRead blog, in which he interprets the phrase "rolls a hoover" in somewhat different fashion than it's been used previously. That's fine, of course. I certainly can't claim exclusive rights on the phrase. I expect to have more on the substance of his comments later.
Wow. The BBC is going to put its archives online and make its television and radio programs available as free downloads. This is a radically different approach than most American television companies, which are afraid that their programs might end up online as free downloads. Maybe the American companies will learn something from the BBC. Oblomovka and Slashdot have more information. Oblomovka also has the text of the announcement and more links. A comment on Slashdot mentions the similar CBC Archives. (from Boing Boing)
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