Copyright and the University

Update: Even Eeyore’s writing to Swarthmore, so I figured I should get in gear and do so too (after all, if an Eeyore feels he can make a difference, then anyone can).  Here’s my letter.  And here’s a link to the Diebold docs at my Harvard account.


I hope you’ve been following the Diebold story – Techlawadvisor has a nice array of links.


What is most frustrating for me is that Swarthmore should know better. I’m not just saying that because the law and the media are on their side. Sure, they’re in a good strategic position.  But they’re also an elite academic institution and should know, strategy or no strategy, that this is a stand that needs to be taken. This matter cuts to the core of the university’s mission: to encourage and provide a haven for serious debate and scholarship about important issues. How can a copyright C+D make them forget all other academic principles?


Swarthmore’s actions, I think, are part of a larger trend. Copyright’s dominance of Internet and technology issues is now bleeding into the university, from Penn State to Swarthmore to Wyoming to Harvard and many more.  Copyright holders have colleges running scared. Are we willing to let serious academic issues be determined in this simplistic way?


I’ve noted in the past that some colleges, though feeling overwhelmed, have reacted with moderately good policy solutions without sacrificing academic freedoms, fair use, and the university’s independence. There have been some bright spots. But on the whole, it hasn’t been pretty.


Ever since my frustration with Harvard’s silly new repeat offender policy, I’ve started to think that someone needs to write a best policies manual for universities specifically. Universities need to be reminded what’s at stake and instructed on how they can accomodate the law without crippling academic freedom.  Such a manual would make very clear what the law actually says so that universities like Harvard and Swarthmore do not unnecessarily go beyond it to avoid liability.  The EFF has something similar to what I’m thinking of; also, Fred von Lohmann outlined some ideas here, and I noted others here. I’d like to see something even more comprehensive – if one already exists, please tell me – if one doesn’t, I’d love to help someone write it.


While nothing requires Swarthmore to stick up for their students in this case, I am saddened that they haven’t.  Hopefully, other universities will learn from Swartmore’s mistakes.

From Valenti to Tauzin

So the rumor is that Jack Valenti will be stepping down and Rep. Billy Tauzin will be taking his place.  Kevin Werbach asserts that this is will help centrists in the copyfight.


I might be wrong, but it seems that over the last two years Valenti’s aloofness has actually started to hurt the MPAA.  All Valenti has right now is his moral rhetoric, and he’s had to make it more and more extreme over the years, because he doesn’t have any hard evidence to back up his argument. At some point, the extremism is no longer “downright reasonable.”


While some Congressmen will listen to and speak Valenti’s language, it hasn’t gotten a lot done.  I see Congress responding to the RIAA’s statistics and their supposed business problems; bills are springing up specifically to address them. What has the MPAA gotten done? The Hollings proposal and the broadcast flag.  The former is the exemplification of Valenti’s extreme stance and thus had no traction.  The latter is actually an example of Valenti and the MPAA situated within the “political fray.” He’s getting it done because he has the right connections in Congress (Tauzin and Hollings) so as to get the FCC. He’s acting just like a political “street fighter,” slipping the proposal in through the backdoor because even Congress knew it was unreasonable.

“Interoperability Isn’t a Popularity Contest”

SethS hits the nail on the head re: interop with DRM.  In response, to Microsoft employee Dave Fester’s criticizing Apple’s AAC/Fairplay and suggesting they use WMA, Seth writes:



“Interoperability isn’t a popularity contest. It’s about the answer to this question: What does a prospective implementer have to do in order to make the implementation work? ‘Read the public specification’ is the right answer. Answers involving signing contracts and paying money are the wrong answer. Microsoft and Apple both have media formats with the fatal defect of an attempt to require contractual privity with implementers. (In the free world, that attempt will fail, but that’s little comfort to us in the United States.) Here Fester is suggesting that Microsoft’s media format is obviously preferable because more implementers have signed Microsoft’s license than Apple’s.”


As discussed earlier, even if all the major market players (RIAA, music services, and device manufacturers) used WMA, that still wouldn’t make it a good format. Remember, the ensuing format lock-in is backed up by the DMCA – without it, you could circumvent and reverse engineer for interop.