A Copyfighter’s Musings

Ernest makes a nice point here.  Congress came dangerously close to passing some horrible laws.  Yes, we’re not out of the woods yet, yes, we still lost with the broadcast flag, and, yes, the RIAA/MPAA remain generally more powerful.  But look at how far public interest and technology-side lobbying has come.  A year and a half ago I noted how much our side has improved – consider how much more there is than when the DMCA was being drafted.  We’re doing even better today.  It would be nice if we could spend more time on offense (e.g., the Boucher bill), but we have to play good defense first – slowing these bills down is a necessary and important step in the right direction. 

Also, it’s been a decent year in terms of court victories.  There’ve been real rotten ones, like the bnetd case, but we also got rulings like Skylink, Grokster, and OPG v. Diebold.

Filed by Derek Slater at 1:23 pm under General news
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Grabbed by Kevin, a quote from a recent article:

“Attorney General John Ashcroft has stated that the Justice Department’s response to the theft of Intellectual Property ‘must be as forceful and aggressive and successful as our response to terrorism and violent crime and drugs and corruption has been.'”

Filed by Derek Slater at 12:48 pm under Big Ideas
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I’m used to seeing huge ads for Movielink as well as MPAA anti-piracy statements in The Harvard Crimson.  Yesterday, there was a full page ad for the new version of Morpheus, touting an upgraded file-sharing system (discussed here) as well as Streamcast’s recent legal victory.

Predictably, Morpheus still seems to be saturated in adware.  When they released a version in the spring that interoperated with other P2P systems, I could barely get searches to work on all networks at any sort of reasonable speed.  I don’t know if that’s any better now, but I’m betting the program’s still not that slick.  Do tell me what your experiences are.

One new feature did strike me. In addition to enabling use of proxy servers to protect privacy, Morpheus has supposedly implemented some anti-spoofing tools built off of Bitzi (which, fwiw, was co-created by Mike Linksvayer who now works for Creative Commons)  Morpheus doesn’t spell out how this works and I refuse to load this software onto my computer again to find out, but it seems that Morpheus will be tapping into Bitzi’s metadata catalog.  For identified files, people will be able to see if it’s been listed by someone as a spoof or as legit. 

I’ve read about other peer-rating systems to combat spoofing, but this is one of the first anti-spoofing tools I’ve seen implemented in a P2P system.  I don’t know how well it’s going to work, because I don’t know a lot about how good Bitzi is. It certainly seems interesting.

Of course, it seems copyright holders could enter spoofed files into Bitzi and rate them with high integrity.  Thus, even if Bitzi helps people sort out spoofs, the technological arms race will continue.

Update: Mike explains how it works and Bitzi’s implementation in P2P software.

Filed by Derek Slater at 12:59 pm under General news
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The DCIA‘s Marty Lafferty emailed me this opposition paper on Induce.  Check it out; not much different from others, but figured it’s worth getting out there.

Filed by Derek Slater at 11:42 pm under General news
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Professor Felten has posted a new draft of the Induce Act.  At long last, the drafters have decided to focus more narrowly on decentralized P2P rather than the grab-bag standard of the original Induce.  Well, good for them, but it’s still overbroad.  Felten points out that the Web and perhaps the Internet itself would be covered.  It could also apply to Windows networking, which allows sharing of folders over a network that certainly could be considered “public.”  Furthermore, it could apply to IM systems that allow people to send files.  “Locate and obtain” is in no way restricted to your typical search interface; consider an IM service with a chatroom called “Share Music” (this is basically how sharing on IRC works, with bots that you can query).  Even if you think they could successfully defend themselves, they could still be dragged through a money intensive lawsuit.  And the boundaries of this definition will be continually pushed by new technologies.

Shall we go on?

Update: Ernest reports on some letters sent by public interest and tech groups cautioning Hatch, Leahy, et. al.

[note: corrected a typo -10/6]

Filed by Derek Slater at 9:39 pm under General news
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The Coral Consortium is a cross-industry group promoting interoperability between DRM. On that note, let me repeat:

There is no such thing as fully interoperable DRM.  Don’t even click your heels – just accept it. 

As Ed Felten wrote a few months back, “To make DRM work, you have to ensure that not just anybody can build a music player — otherwise people will build players that don’t obey the DRM restrictions you want to connect to the content. DRM, in other words, strives to create incompatibility between the approved devices and uses, and the unapproved ones. Incompatibility isn’t an unfortunate side-effect of deficient DRM systems — it’s the goal of DRM.”

I understand that Coral may help certain players shake hands – maybe Apple gets friendly with MS and Real, and all their limited set of devices work together using some “transcoding,” and that provides some benefits in the marketplace.  However, that in no way equates to “maximizing” consumer choice as Coral purports to do.  Maximizing consumer choice would mean actually allowing anyone to create a device or software that plays digital media.  At the very least, all the open source creators will be left out in the cold, for they cannot sign the relevant non-disclosure licensing agreements any DRM would require. 

Felten again: “MP3’s designers … didn’t seem to realize that customers would get their own technology, and that customers would decide for themselves what technology to build and how to use it. The compatible-DRM agenda is predicated on the same logical mistake, of thinking that technology is the province of a small group that can gather in a room somewhere to decide what the future will be like. That attitude is as naive now as it was in the early days of MP3.”

What’s more, how socially wasteful is this?  Consider how many random consortiums have been created over the last year to deal with this problem.  First, none of them have done anything. Second, if they were to actually “fix” this problem, then DRM would lose much of its value. The only purpose DRM serves right now is in creating these barriers to interop and legitimate uses.  It doesn’t prevent piracy.  Given that, they could eliminate all these barriers simply by selling in MP3 or Ogg.  Rather than taking this route, companies are investing large sums in these consortiums.

Filed by Derek Slater at 3:46 pm under General news
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1.  I’ve had the pleasure of working with Urs Gasser for the last year on the Digital Media Project.  He was the lead on our recent iTunes paper and has a couple more papers in the works.  He also has just started a blog.

2.  You may remember Dotan Oliar from his paper pre-Eldred offering an economic analysis of term length as creative incentive.  He now has drafted a fascinating new paper called, The Origins and Meaning of the Copyright Clause.  The abstract:

“In Eldred v. Ashcroft (2003) the Supreme Court reaffirmed the primacy of historical and textual considerations in delineating Congress’ power and limitations under the Intellectual Property Clause. Nevertheless, the Court overlooked what is perhaps the most important source of information regarding these considerations: The debates in the federal Constitutional Convention that led to the adoption of the Clause.

To date, several unsettled questions stood in the way of identifying fully the legislative history behind the Clause. Thus, the Article goes through a combined historical and quantitative fact-finding process that culminates in identifying eight proposals for legislative power from which the Clause originated.

Having clarified the legislative history, the Article proceeds to examine the process by which various elements of these proposals were combined to produce the Clause. This process of textual putting together reveals, among other things, that the text “promote the progress of science and useful arts” serves as a limitation on Congress’ power to grant intellectual property rights.

The Article offers various implications for intellectual property doctrine and policy. It offers a model to describe the power and limitations set in the Clause. It examines the way in which Courts have enforced the limitations in the Clause. It reveals a common thread of non-deferential review running through Court decisions to date, for which it supplies normative justifications. It thus concludes that courts should examine in future and pending cases whether the Progress Clause’s limitation has been overreached. Since Eldred and other cases have not developed a concept of progress for the Clause yet, the Article explores several ways in which courts could do so. Lastly, the Article doubts the accepted wisdom of parsing the Clause dichotomously into a patent power and a copyright power.”

Filed by Derek Slater at 12:00 pm under General news
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This is about as bad as it could get. The court follows Bowers and affirms that copyright holders can override copyright’s limitations via contract. Moreover, the court rejects bnetd’s argument under the reverse engineering exception of the DMCA. (via Felten)

EFF’s got a press release up. The appeal brief will, I would expect, involve reference to Skylink.

Update: Ernest and SethF are on the case.

Filed by Derek Slater at 12:00 am under Big Ideas
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After all this, I can’t tell you how happy I am to read this.  Thank you EFF, Stanford Clinic, OPG, Nelson and Luke, et. al.  Not only was (at least most) of the posting fair use, but it was so obviously fair use that Diebold has to pay for its use of the DMCA.  The court ruled that 17 USC 512(f) applies to Diebold’s conduct.

From the EFF:

“EFF Wins in Diebold Copyright Abuse Case

Voting Machine Company Liable for Damages, Costs in Landmark Ruling

San Jose – In a landmark case, a California district court has determined that Diebold, Inc., a manufacturer of electronic voting machines, knowingly misrepresented that online commentators, including IndyMedia and two Swarthmore college students, had infringed the company’s copyrights. This makes the company the first to be held liable for violating section 512(f) of the Digital Millennium Copyright Act (DMCA), which makes it unlawful to use DMCA takedown threats when the copyright holder knows that infringement has not actually occured.

The Electronic Frontier Foundation (EFF) and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School sued on behalf of nonprofit Internet Service Provider (ISP) Online Policy Group (OPG) and the two students to prevent Diebold’s abusive copyright claims from silencing public debate about voting.

Diebold sent dozens of cease-and-desist letters to ISPs hosting leaked internal documents revealing flaws in Diebold’s e-voting machines. The company claimed copyright violations and used the DMCA to demand that the documents be taken down. One ISP, OPG, refused to remove them in the name of free speech, and thus became the first ISP to test whether it would be held liable for the actions of its users in such a situation.

‘This decision is a victory for free speech and for transparency in discussions of electronic voting technology,’ said Wendy Seltzer, an EFF staff attorney who worked on the case. ‘Judge Fogel recognized the fair use of copyrighted materials in critical discussion and gave speakers a remedy when their speech is chilled by improper claims of copyright infringement.’

OPG Executive Director Will Doherty said, ‘This ruling means that we have legal recourse to protect ourselves and our clients when we are sent misleading or abusive takedown notices.’

In his decision, Judge Jeremy Fogel wrote, ‘No reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold’s voting machines were proteced by copyright . . . the Court concludes as a matter of law that Diebold knowingly materially misrepresented that Plaintiffs infringed Diebold’s copyright interest.'”

Filed by Derek Slater at 8:39 pm under General news
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Go here to learn about IPac, an intellectual property PAC.  They have three main principles.

1. Creators of ideas and inventions have the right to be compensated for their work, but not to limit political expression, veto technological innovation, or restrict education and scientific research. [read why]
   
2. Intellectual property laws should be judged by their potential to foster new creativity, as required by the U.S. Constitution. [read why]
   
3. Intellectual property laws should be clear and explicit, so anybody can create without fear of lawsuits. [read why]

Filed by Derek Slater at 7:32 pm under Big Ideas
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Donna reports that the PDEA has passed through the House.  Among many fine points, she notes the lack of debate on this issue.

The bill itself lists many “findings” about the state of piracy and that it must be counteracted, but there seems to have been no research regarding whether heightened criminal enforcement under lower standards would be beneficial. Much the same can be said for the Pirate Act’s allowing the feds to go after infringers as a civil offense.  No one at the hearing even thought to compare the war on piracy to the war on drugs.  Moreover, on a more concrete level, there’s not even the most rudimentary evidence regarding whether these prosecutions and lawsuits would have any practical impact.

Consider: as enforcement increases, more users will turn to more secretive systems that employ encryption and proxy servers. They will also turn to trusted small worlds networks, which, when linked together, may be just as powerful (particularly for popular content) as the current networks.  Looking at the current civil suits, enforcement seems to make little noticeable difference to traffic on the file-sharing networks. 

Congress could have done research on all these fronts and tried to more clearly demonstrate how criminal prosecutions and employing powers of the state (e.g., how do the privacy protections interact with wiretapping?) might affect matters, but it doesn’t seem like they have.  Certainly, they can assume that heightened penalties may provide some piracy reduction.  The question is: what is the net benefit?  Even setting aside the sort of cultural costs of turning millions into criminals, both the PDEA and Pirate Act involve large sums that must be spent on training and employing the feds.  As some pointed out, that money could be spent on more worthwhile enforcement in other areas of the law.  From what I’ve seen, they have not clearly demonstrated that the benefits of enforcement will outweigh these costs.

Filed by Derek Slater at 4:04 pm under General news
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The rains kept many away, I think, so it was less crazy than expected.  I gotta say: Trippi’s got a certain something in his voice and inflection. I could see why people would listen to and get behind him, and I could see a little of what makes him special.  The way he talked about the campaign and the bottom-up nature was at times inspiring (at times, he was clearly channeling Jim Moore).  That was cool.  Unfortunately, I can’t tell you anything substantive because it was all off the record.  Yeah, it allows him to let down his guard and say some things he otherwise wouldn’t, but those are really the main things worth talking about.  Rebecca Mackinnon asked why it was off the record and got more than a few – I think undeserved – strange looks; it’s an entirely reasonable question.

Filed by Derek Slater at 9:56 pm under General news
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Joe Trippi’s on campus, and the hype is coming in full force, on posters and in my e-mail box. At first, I was pretty excited and wanted to go to his new study group, but that’s receding as the student chatter grows. Maybe I’m too cynical but…

Joe Trippi helped do some really interesting campaigning and fundraising using the Internet and social software. He was a critical component, and he’s probably an amazing person. So are guys like Zack Rosen and Neil Drumm. So are David Weinberger and Jim Moore. Haven’t met them, but probably so are Zephyr Teachout and Matt Gross.

I wonder: will the mass of students attending Trippi’s study group have any idea who these people are? And will they ever care to? The posters advertising the event set Trippi up as the The Guy, when really he was The Guy Behind The Guy (Dean), and there were plenty of other incredible people behind him. This was, in some respects, an open source, bottom-up campaign, right?

Some students were keen enough to start a new TrippiAtHarvard blog – neat, you discovered blogging. But why not integrate with the rest of the Harvard bloggers? There’s already a whole community here ready to interact with you – hell, Weinberger and Moore both work at the Berkman Center. (Note: dropped the editor a line, and hopefully they will come to blogs@harvard).

Look, I’m only marginally a student of this stuff, and I’m not asking for people to have already read, say, Clay Shirky’s take on the campaign. I’m not questioning people’s levels of knowledge or interest in the subject matter – it’s not about that. Rather, I worry about their perspective. I hope that people don’t start tripping over Trippi, when there is so much more going on in this space than him and so many more amazing people at work. You overlook them, and you by definition don’t get it.

Filed by Derek Slater at 12:18 am under General news
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Frank provides links to news articles as well as the law’s text.  It’s got a couple of new exceptions it seems, but the privacy and anonymity concerns remain.

Filed by Derek Slater at 1:08 pm under Big Ideas
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I haven’t bothered to post about these issues because others have gotten to them quicker and better than I could, but that doesn’t mean you shouldn’t find them.  Donna has all the goods on the recent court decision putting the “limited times” clause into effect and nicely dealing with the copyright v. commerce clause issues, as well as the push behind a new Induce Act draft.  Ernest, of course, will follow-up with more soon on what’s been dubbed Induce 2.0.

Filed by Derek Slater at 12:46 pm under General news
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