A Copyfighter’s Musings

SBC’s suit to prevent the RIAA from using the DMCA subpoena provision has been moved to the DC Circuit.  That’s the same circuit that already ruled in RIAA v. Verizon.  This means that the appeals decision in RIAA v. Verizon is really the one to watch here.

Filed by Derek Slater at 12:58 am under General news
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1.  The one that everyone’s been talking about – Jessica Litman’s Sharing and Stealing.  See comments here, here, and here.

2.  One I stumbled upon in my research – Mark Lemley and R. Anthony Reese’s Stopping Digital Copyright Infringement Without Impeding Innovation.  The authors argue for several interesting alternatives to enforcing copyright against third-parties. 

They also take an interesting approach to Napster and Aimster, favoring the latter approach over the former while finding fault in both.  Their main reason is that Napster affirms that any actual knowledge of infringement, regardless of a capacity to act on that knowledge, nullfies the Sony defense.  That is a plausible reading, but, as I have said before in light of Grokster, I don’t think it’s correct.

Set aside, for the moment, the confusing way of applying Sony in the contributory section and the lack of application in the vicarious section, and look at the Appeals decision’s general approach.  Both section’s of the Court’s analysis stressed Napster’s control over users’ activities.  Moreover, both sections, as well as the remedy section, stressed that Napster should only be expected to control infringing uses within the bounds of its current technology.  As I wrote the other day, this rule essentially preserves the possibility for a multiplicity of design models on the Internet.  Centralized P2P like Napster can exist because it has substantial non-infringing uses, but it is still expected to control the infringing uses within the bounds of its system.

Regardless of whether you agree with Lemley’s and Reese’s assessment of Napster’s knowledge requirement, their criticisms work against my argument above because what the Appeals court said and what actually happened are quite different.  The District Court and Appeals Court created a remedy that a) went beyond the bounds of Napster’s system, by essentially requiring them to analyze the content of files, and b) required Napster to screen out all infringement of a given song, which was essentially impossible.  In that way, they negated the technology-preserving aspect of the opinion.

Lemley and Reese would say that that damns the general approach I laid out above – though it does look less plausible practically speaking, I’m not so sure it’s a terrible rule.  More later.

Filed by Derek Slater at 6:26 pm under General news
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The holidays put me out of commission for awhile, so, before the busy but drawn out semester’s end, I want to catch up on several interesting bits of news.

1.  Of course, I’m thrilled by Diebold’s folding and will be delighted when Harvard receives both my counter-notice and Diebold’s subsequent withdrawl letter.  I hope that Diebold’s carefully timed manuever doesn’t preclude a ruling in the case (though, from the press release, that sounds less likely) or slow down further discussion of e-voting. 

Once again, I would like to thank everyone who helped and supported me through this process.  I’m just happy that I could do a tiny bit to help the real stars in this, the Swarthmore students who first got the ball rolling.  They’re the ones who first put themselves on the line and who organized this massive bluff-calling.  And I’m glad that there were organizations willing and able to support those students, too.  Bravo.  (The Crimson wrote the article I urged them to write early on, covering the broader battle.  Three cheers for  that, too.)

More later on what sort of reposting I intend to do.  For now, browse the entire archive here, or the tasty excerpts here, here, and here.  Also, more later on my continuing discussions with Harvard about their DMCA policies.

2.  I’m late to the recent Posner opinion party.  Follow Donna’s links here and Scrivener’s Error.  Read the full opinion because it’s fun and quick, and because it’s got an interesting bit about copyright misuse.  You should also note what Posner does and doesn’t say about ProCD and Bowers.  He says that contracts between two parties wouldn’t apply to third-parties (which seems somewhat tautological to me), so no contractual violation beyond the copyright infringement claim is possible here; however, he doesn’t say that contract claims would not be possible in these sorts of cases.  Copyright misuse only precludes enforcing one’s own copyright, so even if the contracts amounted to misuse, they wouldn’t be invalid.  Posner notes that allowing the data company to enforce its contract against the municipalities would be “absurd”, but in a somewhat less extreme case, one could see the argument working.

So, the door is still left open to forgo copyright in favor of contract.  What Posner suggests here is that it’s possible you might not be able to have both.

Further reading: 3rd Circuit Breaks New Ground on Copyright Misuse, discussing an application of misuse as a constitutional problem, not just antitrust violation, and how that could affect DMCA cases.  It also mentions a previous Posner opinion in which he discussed how using copyright to suppress criticism could be considered misuse (sounds familiar, ay?).  See also Anti-Circumvention Misuse by Dan Burk, about abuse of DMCA’s access control provisions, among other things.

3.  IP Justice has written some fascinating pieces on the FTAA.  See also Donna’s post.  I have put time into several copyfighting organizations, but IP Justice is the last one I can remember sending money to.  The international treaty front is, in some ways, the least focused on but the most important.

4.  Given that his court date for DeCSS was only about a week away (Dec 3, says IP Justice), can you believe Jon Johansen created a work around for Apple’s FairPlay DRM? 

I wonder if Jon got more, less, or the same amount of backlash for this as he did for DeCSS.  That is, do people really believe that QTFairuse is going to cause mass piracy of iTunes files?  iTunes files are far more piratable than DVDs – all you have to do burn and rerip or record the sound as it goes to the soundcard and recompress, while, without DeCSS, you’d have to do a lot more analog workaround (see also Macrovision) and know more about movie file compression to redistribute movies.

Filed by Derek Slater at 3:41 pm under General news
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John Palfrey wrote a wonderful editorial for The Crimson about the University’s DMCA policies, making the case for reform.  Do check it out.

Filed by Derek Slater at 9:57 am under General news
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As The Crimson’s follow-up article notes, I have filed for counter-notice on my Diebold posting. Thanks to the Berkman Center, in particular John Palfrey, Diane Cabell, and Devon Bush, for putting it together. More on all this later. (Note: I didn’t have to nearly beg The Crimson for ten days to write this article; they called me after following my blog to get the scoop. And they actually covered e-voting this time, not just the copyright part. Of course, that means they also made the same mistake about fair use that they made last time, which I mentioned to this reporter and to The Crimson, but you win some you lose some.)

Filed by Derek Slater at 2:36 pm under General news
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Professor Lessig’s Free Culture is due out in March.  You can get some advance excerpts here. Make sure to check out the Afterword, which lays out his policy suggestions.  See also Professor Lessig’s blog of his presentation and Peter Northup’s follow-up.

Filed by Derek Slater at 9:24 pm under General news
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Earlier, I reported on my C+D from Diebold and my challenge to Harvard’s using it as one strike against me in its 512(i) policy.  Today, Harvard’s general counsel officially ruled that the University would not count my posting as an infringement.  My record and Internet access are safe.

While I greatly appreciate the University’s appropriate response and the effort it took to discuss this matter with me, I must say that my appeals process is cause for concern. I say my process because there is no official appeals process.  Here’s how the system currently works: First, the University sends a letter telling the student that access has been cut off and to respond within five days.  The University provides minimal information about potential defenses.  Like Brown, the University also suggests that the infringing material must be deleted, regardless of the infringing act.  When you assert your intention to submit a defense, the University computer security staff tells you that it will forward on whatever you provide. Before hand, you have no idea who to contact directly; I only knew to contact the general counsel because my boss, John Palfrey, helped me.  From here, it’s a black box – no clear standard of review, no official way of getting a hearing, no required or recommended format for defenses.

Without a legal background and the incredible support of the Berkman Center and the EFF, I doubt I would have known the right people to contact and the right way to approach this; in fact, the letter I received from the general counsel cited John’s discussions with him as one reason for the ruling. Most students would be in a severely disadvantaged position.

Again, I thank the University for dealing with me fairly. However, I believe that this process must be altered to treat all students justly while taking into consideration the University’s concerns about liability.  Educating students about defenses and providing a clear appeals process are good places to start, and I intend to keep pushing for such reforms.

That’s the story internally.  As for moving beyond defending myself before the University – well, I’ll have more to say on that later.

Filed by Derek Slater at 4:26 pm under General news
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Ed Foster on first sale and eBay (via Furdlog)

Ernest Miller’s First Amendment views.  Every once in awhile, Ernest has hinted about these on pho in relation to copyright.  This fuller explanation is most interesting, particularly because I’m in the midst of an information society class with a focus on broadcasting and reading Technologies of Freedom.

Filed by Derek Slater at 4:09 pm under General news
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Aimster’s creator Johnny Deep, via his daughter Aimee, submitted this plea for help to Politech today.  Following up on my previous comments, I have sent in the following response to the list, urging people to NOT support the filing for cert.

Dear Declan and Aimee,

My name is Derek Slater – I’m a blogger and an affiliate at Harvard’s Berkman Center for Internet and Society.  I’d like to argue that people should NOT back Aimster’s writ, unless you have a death wish for the Sony doctrine and P2P  – Declan, feel free to repost on Politech.  I write the following with no offense intended to John or Aimee, but rather to evaluate the case.

The Aimster case’s facts form a bad foundation for a reevaluation of Sony in the P2P era. At best, Aimster is a somewhat centralized service, not wholly unlike Napster, and has thus far had trouble proving any non-infringing uses.  At worst, Aimster actively encouraged infringement on its fully centralized P2P service.  Its tutorial’s screenshots showed how to download copyright holder’s content specifically, and the centrally-controlled Club Aimster service helped automate acquisition of copyrighted works on Aimster.  The record industry alleges that John Deep has boasted that Aimster is “Napster squared.”

As my description suggests, Aimster’s exact functioning and conduct has been in dispute. However, we do know enough to say that Aimster probably has some level of centralization and thus control; both the District and Appeals Courts agreed on this much.  In turn, the Supreme Court is likely to treat Aimster more like Napster than Sony’s Betamax.

With that in mind, why give the Court a chance to write an overbroad opinion?  We’d be better off with the Court evaluating Grokster and Morpheus, a much more similar situation to Sony.  The Court doesn’t like protecting shady characters and, if the Court adopts my “worst case” interpretation, it will be happy to rule against Deep and anyone who seems remotely like him. The Court will treat all P2P as a tool of infringement, rather than just a tool.

Indeed, this is how both the lower courts viewed Aimster, generating colossally harmful rulings.  The District Court ridiculed Deep’s defenses and crafted, in direct conflict with Sony’s, a rule based on “principal” and intended uses.  The Appeals Court treated Aimster’s encryption as “willful blindness,” and, in an opinion rife with dicta, Judge Posner implicitly tried to rewrite Sony.  He argued that infringing and non-infringing uses must be balanced on a case-by-case basis and closed by stating: “Even when there are noninfringing uses of an Internet file-sharing service, moreover, if the infringing uses are substantial then to avoid liability as a contributory infringer the provider of the service must show that it would have been disproportionately costly for him to eliminate or at least reduce substantially the infringing uses.”  In effect, Posner created a technological redesign rule that could force Morpheus to accommodate filtering tools and would likely have forced Sony to impair copying using Betamaxes.  (Posner’s rule is not unlike a negligence standard, which I have critiqued elsewhere).

Having these opinions on the books is bad enough.  Let’s not put Sony on the line here by bringing Aimster’s case before the Supreme Court.  To give Sony, P2P, and Internet innovation their best chance to survive, we should wait to bring the best possible defendant before the Court.  If you must support this case, please do so only by focusing on the proper standard of review, as the EFF did its appeals amicus.

Sincerely,
Derek Slater

Filed by Derek Slater at 6:07 pm under Big Ideas
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Frequent readers know my fondness for discussing third party liability rules, including possible alternatives to the Sony/Napster/Grokster line.  I’m presently outlining a short paper discussing, with a focus on P2P, why the basic insight of that line – remedies tailored to a system’s current architecture, with expansive protection for system’s lacking control – is needed now more than ever and is superior to a negligence rule.  In previous posts, I’ve laid much of the framework for this piece, but I’ve missed one point.

The plaintiffs in Grokster suggest that the P2P providers should have used an alternative design to prevent infringement – namely, they could have used filters.  Let’s assume that filtering could be done without impeding legtimate uses – that is, the fair uses we currently associate with P2P remain possible. (Footnote: Probably, this would mean filtering out, rather than filtering in, copyrights works.) Let’s also ignore the problems I previously noted with the scenario.  Given that filtering works without overtly harming legit uses, why should we worry about such a rule?

To see the potential problems, we must first recognize one essential fact: no filtering list will be comprehensive.  New copyrighted works are created every second.  In turn, a P2P provider like Streamcast can’t simply include one filters list within the software – it must be able to update this list for eternity and disseminate it to all users.  In other words, Streamcast needs to create some form of centralized control.

This will have three related consequences:

1.  The Internet, generally speaking, does not discriminate against particular design choices.  You can make something client-server, centralized P2P, decentralized P2P – the Net doesn’t pick a winner.  Instead, we let people innovate in a variety of ways and reap all the benefits.

This liability rule does pick a winner or, at least, a loser – decentralized P2P designs – and thus chokes off innovation.  You might say that this rule is not that different from telling Napster 1.0 to filter its central index.  But filtering in Napster 1.0 doesn’t dictate that the centralized P2P model cannot exist.  Rather, it attempts to come up with a solution within that particular technological design.  In turn, the variety of potential designs is presevered.

2.  Not only do we end up with less innovations, but we’ll also have less innovators.  One of the benefits of a decentralized design is a reduction in creator’s infrastructure costs.  That is, if you’re an amateur programmer, you can release a P2P program into the wild without having to maintain a central server or even a website after it’s been downloaded enough.  You can come up with a general purpose tool and let others figure out how it can be used best.

This is precisely what happened with Gnutella.  Justin Frankel and Tom Pepper came up with it themselves, released it, and that was it for their involvement.  Gnutella is mostly associated with Morpheus today, but it has also been implemented as a Web search engine called InfraSearch.

3.  With less innovators and innovations, we will inevitably impact legitimate uses.  Because we don’t know what those uses might be, we won’t know what we’ve lost.  Furthermore, if we normally think of the Net as a tool of disintermediation, then this rule would mean re-intermediation.  We would be forcing people to connect to some central source in order to distribute legitimate speech.

One might respond that this centralization would have little impact.  People can use Napster to distribute legitimate speech in the same way they can use Morpheus.  There are two potential problems. First, we’ve contracted the number of channels that someone can speak through – only those who can maintain the necessary centralization can control the channels.  Second, with centralization, the system becomes less reliable in certain ways.  In the most innocent case, I’m talking about a Windows server error or a brown out knocking out a server and thus someone’s legitimate use.  In the worst case, I’m thinking of someone attacking the server purposely to disable some controversial speech – someone distributing political documents, for instance.  That sort of fear has influenced the design of Freenet.

As you can see, we end up with many of the same problems you see with other tech mandates.  It wouldn’t change the actual design of the Internet but it would practically affect the brilliance of end-to-end.  Paraphrasing Professor Lessig, it’d be the “Internet,” but not in any sense the Internet that we know today.

When I’ve discussed this argument with others, I’ve often been asked, “So, what do you think we should do about libel and obscenity and everything else on the Internet? Just let it and piracy run rampant with no way of stopping it?” My first reaction is to step back and note that, sure, the values and benefits of the Internet are often in conflict with other social values.  But do we want copyright alone determining how that conflict is settled?  Are we willing to let copyright make design choices for the Internet’s future?

So: questions? comments? criticisms? Like I said, I’m planning a paper, so I’d love to hear counterarguments.

Filed by Derek Slater at 6:18 pm under General news
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We’ve been down this road before (see also here).  Moving the system to Windows has opened this hole even wider.  One interesting note about MyTunes: According to the MyTunes site,  it’s making bit-for-bit copies of the files and that’s probably why it can’t copy AAC/Fairplay tracks.  Remember, you can get around this restriction by using a program like TotalRecorder to capture the sound as it goes to your soundcard – so the fun has just begun.

Filed by Derek Slater at 10:57 am under General news
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So some Senators are now pushing an ACCOPS-esque act.  Follow this logic, if you can:

Economic crises have finally forced this country to confront the absurd stupidity of its “tough on crime” policies, including mandatory minimum sentencing.  Through these economic crises, the MPAA’s studios are doing better than ever.  The RIAA has suffered recently, but it’s one of many hurting industries.  Thus, we should incarcerate more people who threaten copyright holders’ business models.

Glad we got that all cleared up. Please return to your regularly scheduled cursing and yelling.

Filed by Derek Slater at 1:25 am under General news
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UPDATE: Here are my notes.

Tomorrow night, I’ll be at “Adapting to the Beat: The Music Industry in Flux,” a panel discussion featuring GartnerG2’s Mike McGuire and FMC’s Walter McDonough among many others.  As long as what’s said there is not confidential, expect some notes up here. Watch this space for more.

Filed by Derek Slater at 8:38 pm under General news
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So, I was going through my Winthrop House mail yesterday and came upon an email, subject: “iTunes – another plea!” At first, I thought someone had run into the Win2k crash bug. On the contrary, the program was working well – perhaps too well from the RIAA’s perspective.  The email urged everyone to share their files via iTunes streaming so that we would have one, gigantic Winthrop House music collection.

And, of course, the plea ended with an assertion that this is “completely legal.” Not so fast.  Looks like a public performance webcast to me.  Apparently, similar threads on many other campus mailists have generated more discussion of the legality.

In any case, let me ask a somewhat targeted question: is this a public or private activity? That is, does this fit the copynorm “share with friends, not strangers”? We’re all part of one campus residence, but I haven’t met any of the people streaming songs.

Filed by Derek Slater at 8:32 pm under General news
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One thing I was thinking about when writing my most recent post on PSU/Napster was LAMP – not LAMP exactly, because it’s a limited service, a legal kluge (see this nice post here), created for somewhat different reasons than PSU/Napster – but rather the concept of blanket licensing for students’ music access.  For reasons obvious to those who frequent this blog, that has some appeal to me.  LAMP excited me because it provided a model for what other companies and schools could experiment with, even though this implementation was far from perfect. So, any strict absolutism about what the university must do in all possible circumstances doesn’t really comport with my intuitions.

I am still wary of universities getting over-involved in providing music access, but, as I indicated in my latest post, some instances would be cause for less concern.  PSU/Napster troubles me because it is so woefully inadequate and so removed from the university’s mission and similar types of university provided services.  If the former were less true and the school were much more necessary to coordinate the purchase (which may be the case with CL-style blanket licensing), perhaps it’d be a different story. In the case of LAMP, the school already had the blanket license and the cable network setup for other reasons; it was a shorter jump to create the service.

Filed by Derek Slater at 8:17 pm under General news
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