Jot: Intellectual Property Rights Badges for Scouts

In Hong Kong "copyright awareness" is raised with the Intellectual Protection Tutor Programme. Apparently scouts are a prime target. All those who complete the programme get a....Intellectual Property Rights Scout Badge!

INDICARE Article Flow: DRM & Libraries and Science

The latest INDICARE Monitor has been published. Most articles have been online for some time, and will soon be available in PDF. Now they can be read at the INDICARE site. The focus this month is DRM and "science, higher education, and libraries". Take your pick:

Preservation versus exploitation
Dilemmas in the reissue of historical recordings

Abstract: While the market for the reissue of historical recordings seems sufficiently attractive for there to be multiple reissues of the same recordings, there is the additional aspect of the preservation of the audio heritage. This is largely being undertaken by private actors who invest substantial time and money in audio restoration and research. A recent court decision acknowledges that such work is protected as intellectual property. Even so, different interests in this field are a barrier to enforcement of rights so that digital watermarks might prove the most acceptable solution.

DRM and developing countries
Comments on the INDICARE state of the art report

Abstract: CPTech endorses the findings of the State of the Art Report. It, however, criticizes that the report focuses on Europe only, and points out that DRM is a global issue that should receive more consideration in international fora, such as WIPO.

The role of digital rights management in library lending

Abstract: Libraries purchase and lend a wide variety of materials, from the most common of trade items to small press publications and even ephemeral resources. They also serve het-erogeneous communities with a wide range of interests, skills and resources. As cultural mate-rials become available in new technologies libraries endeavour to make these available to their target communities. From the very earliest digital products, libraries have worked to present these to their users. Libraries are now lending electronic books and audio books using technol-ogy that is very similar to that used for the sale of these same formats. But both libraries and publishers need a paradigm shift before digital materials achieve the revolution over the Guten-berg legacy.

Fair use licensing in library context
A privacy-preserving lending service with a revenue sharing business model

Abstract: Any technical solution intended to support library exemptions and other fair use provisions has to take into account national regulation, the local use context, and the requirements of business models. In this article a model is proposed for dealing with these challenges. It is exemplified for the library context claiming that it is possible to support library exemptions and still maintain a high level of privacy with DRM systems. Finally new business models for libraries are sketched based on revenue sharing using superdistribution and delivery chain tracking.

The role of digital rights management in Open Access

Abstract: Growing conviction that scientific progress will significantly benefit if scholarly articles and research papers are made freely available on the Web has given rise to the Open Access (OA) movement. While there is some awareness that OA articles may require digital rights management (DRM), there is currently only low-level interest in the topic, with many OA advocates maintaining that it has no relevance to OA. The issue is complicated by the fact that there are currently two ways in which research papers are made OA, each of which has different implications from a rights point of view.

QA Focus information for digital libraries
A case study of CC implementation

Abstract: Creative Commons (CC) licences are a way to clarify the conditions of use of a work and avoid many of the problems current copyright laws pose. This article describes how a CC licence has been used to maximise take-up of the deliverables from QA Focus, a JISC (Joint Information Systems Committee) funded project. It then looks at CC's potential in the European academic sector and discusses relevant issues.

Jot: Copyright Clearance Halts Student Film

Students make ecology film, use REM's "Everybody Hurts", fail to clear copyright, performance film halted.

Few More Insights in Google Digitization Project

The latest issue of Cites & Insights has a report on a presentation by a Google and University of Michigan library representative on the Google Digitization Project, providing a few semi-insights:

• Google indemnified the University of Michigan against any legal issues that arise from copyrights.
• All the participating libraries and Google sent letters to the U.S. legislature requesting resolution of the orphan copyright issues. Google is encouraging a database of copyrights so that libraries and others can determine easily if a work is protected by copyright.
• [The librarian] says that the project has already proven to be a factor in driving clarification of intellectual property rights, including the orphan copyright issue.
• When books appear in Google search results, there is also a link to the record in Open WorldCat (www.oclc.org/worldcat/open/default.htm) to assist users in finding the book in local libraries.

European Commission Discussion Foresees Collapse Broadband Industry Unless ISPs Police

The European Commission is joing the debate about online film distribution. On the so-called Europe Day at the coming Cannes Film Festival the Commission will organise a discussion on how to establish an online film market in Europe. At that event the Commission will also report on a preliminary discussion during which stakeholders gave some initial views on how to secure a healthy business environment for the (European) movie industry. Besides wondering how to come up with a legal offer that can compete with "illegal" file-sharing and a little politically correct musing on the public domain, this somewhat shady reporting seems pretty clear at what's really on the mind of the movie industry and followers:

Producers all called for a better co-operation with Internet providers (IPs). They pointed out that IPs should take more responsibility with respect to illegal downloading. The Commission insisted that so far the IPs relied on a free-rider model. If there would be no fair share of responsibility between the film industry and IPs it is foreseeable that the broadband industry will collapse.

The majority of participants agreed that a fine-tuned sanction system should be set up by IPs to prevent continued illegal downloading: letter of warning followed by downgrading access speed, followed by temporary blocking of access followed by termination of contract.

If true, that are some big ideas the big boys are playing and the European Commission flirting with:

• collapse of the broadband industry, unless providers take their share of responsibility (That should probably be read: collapse unless providers held accountable)
• providers should do the policing and sanctioning for the movie industry (That's their responsibility)
  

So, the broadband industry would collapse unless providers can be held accountable for not doing the dirty work of the movie industry. Is that what I'm reading? Or am I just cynical here? And where have I read that before?

Free Must-Have DRM Article Collection

The first volume of the INDICARE Monitor has been bundled into a massive PDF and is up for download under a Creative Commons license: 62 articles, 230 pages with keyword and names index on a wide range of DRM topics.

From the introduction:

In our view the INDICARE Monitor turned out to be among others a place,

• where empirical consumer research is reviewed and presented,
• where young researchers working on DRM can present original ideas and research,
• where interesting interviews with key persons in the field take place,
• where European and US debate meet,
• where different approaches of value-centred DRM systems design are presented and scrutinized, and
• where you can find information about DRM events which are not covered elsewhere (e.g. workshop and conference reports).

In my view this is great stuff up for grabs! But then I'm a bit biased...

Jot: Russia's Security Service Seeks Regulation ISPs

Russia's new KGB, the Federal Security Service, pleads for new rules to control ISPs. The Ministry of Information opposes.

Jot: National Libraries Support Euro-Google Digitization Project

The European rebellion against the "don-no-evil" empire has started: (Americano)phobia for cultural imperialism might be one reason for nineteen European national libraries to support a European version of Google's digitization project.

Chinese Digital Download Service Profits from Piracy

I've got no idea what proposed download prices are in relation to an average Chinese income, but digital download service 99Bill.com aims at taking 50% of the revenue:

With 99Bill.com's service, DVD-quality movies will be made available for Chinese users to download at a price between 2 renminbi to 10 renminbi, with the proceeds split evenly between 99Bill.com and the content providers, he said. [1 renmibi = US$0,12 - RL].

That may seem like a steep cut for content providers to give up, but under the current system most -- if not all -- of their profits are going to the pirates instead of the content providers. In this context, giving up 50 percent of the revenue in exchange for the ability to generate a profit may seem reasonable. "You're still going to make a lot of money," (99Bill.com's) Kwan said.

Now, either piracy here isn't as rampant as in China and the steel on the entertainment industry's throat isn't that cold to lower its margins. Or this Kwan man is one hell of a negotiator. But then he hasn't negotiated with Hollywood, yet.

Austrian Court: IP Address = Telephone Number = No Privacy Protection

An Austrian court does some legal bending and bends around privacy protection of ISP customers as a result. It concludes that an (dynamic) IP address is the equivalent of a telephone number and has to be considered "master data". This brings a lower protection regime, says the court:

"Master data are not subject to privacy of telecommunications, but rather only to data protection. Information about master data provided to criminal courts - i.e., the regular revelation of a user's identity based on a telephone number (which corresponds to an IP address) - can be provided if the suspect is to be investigated and prosecuted for a specific crime;"

That specific crime is offering 3,864 music files for upload from 1:42:26 PM EDT till 2:03:37 PM EDT on October 07, 2004. (More in the articles linked below.)

- - -

Thru Heise [English]
Also Urheberrecht [German]
Court ruling [German]

Jot: Bahrain Mandates Registration Local Websites

Bahrain's Ministry of Culture has ordered all local webmasters to register their sites:

[The Ministry's Head of Press] admitted that he did not know what a weblog was, but said that even personal websites would have to comply with the new procedure. He added that it would not be possible to register online and registration would have to be done directly at the information ministry. After each registration was validated, the person in charge would receive an ID number that would have to be posted on the site.

Jot: Software Emulation Lawsuit Protects Code, Not Functionality

EasyJet wins copyright infringement lawsuit over software emulation after a claim that

EasyJet had adopted the "look and feel" and overall functionality of the Navitaire software; that it had copied individual keyboard commands entered by the user to achieve particular results; and alleged that certain forms of results in the form of screen displays and reports, including icon designs, had been copied so that the user interface looked the same.

Source code is protected, not software's functionality.

More Kids Propaganda on World Intellectual Property Day

Someone actually commemorates toaday's World Intellectual Property Day: the Business Software Alliance (BSA). Its President and CEO Robert Holleyman says:

"We must continue our shared public-private efforts to deter piracy and promote intellectual property rights in every corner of the globe. Our children's ability to learn, create and innovate must be protected now and in the decades ahead."

To protect our children's future the BSA has initiated several educational propaganda programs. Besides the already well-know weasel of the Play It Cybersafe campaign, there are various European initiatives in which the BSA teams up with other piracy fighters. The Italian Controla Pirateria is riddled with references to popular (sci-fi) culture and has its mascot doing battle with some monstrous P2P mainframe machine:

Not so cool as its Italian counterpart, but still pretty mind bending, are the comics from the Taiwanese Right Click campaign. The cops actually pop up through your screen when you make a "wrong click":

For the older kids there's BSA's higher education program Define the Line "that emphasizes the importance of using software legally and being good cyber citizens." For those good cyber citizens visiting the site and taking its quick poll the line is pretty thick and sharp:

Do you think there are negative consequences of illegally downloading or sharing commercial software?

YES		4%
NO		95%
Votes Cast as of 04/26/05: 4043

Still much to educate propagate till next year's World IP day, I guess.

German Court Prohibits Distribution P2P Software

Today the German District Court of Hamburg has prohibited the distribution of the P2P software Cybersky-TV. This program is build on ByteTornado, a sort of BitTorrent on steroids, and allows the anonymous recording of TV streams without being bothered by DRMs. The software cuts the images in strips and puts a time stamp on them before an exchange, after which the receiving end puts uses the time stamps to put the strips back in the right order to create the original image.

The court confirmed a temporary injunction against Cybersky-TV and the company behind it, TCU, which was obtained by Pay TV channel Premiere. Premiere feared that their programs would be distributed by Cybersky-TV after they had been decoded on a PC. The court has now also prohibited that TCU "advertises" that its software makes "free Pay TV" possible. TCU did not deny the possibility that their software could be used for copyright infringing uses, but stated that it was to the copyrightsholder (Premiere) to come down on the individuals that might offer illegal streams.

A spokesperson of TCU said that the company will appeal, though the ruling has not been released yet. (Hope to report more as soon as it has...)

Update: Pulled from the Cybersky-TV site:

Dear Cyberistas,
as promised we today received the verdict!

Its not really bad...
Bad news: The software we made is NOT allowed.
Good news: The software with a "Premiere-Pay-TV-Recognizer and Blocking"-Plugin is allowed.

So as a result, I have to sit down again, write additional module/plugin and can finally release. I guess I will need 2 weeks to find the string "conditional access system ID" in a delivered stream. Any tv-stream with that string inside (VTX,CC) will not delivered over the network. Thats all.

And in addition we have to change the website. Premiere said, we advertised illegal features with the presentation of press coverage.

- - -

Thru Heise [German] (Note that the Heise report speaks of Cybertelly, which is likely incorrect, being another P2P program based on ByteTornado that was not disputed)
More background in this earlier post: Cybersky: Super TV-P2P On Trial

Later: As noted in the comment section TV-Free.org gives an oversight of several "P2P TV" programs.

French Court: DVD Protection Incompatible with Private Copying Exception

Last Wednesday I posted on a French court decision that underlined the legality of copy protection measures. I pointed out that this decision was more about the possibility to use consumer protection law to protect consumers against such measures, rather than through copyright law itself (e.g. private copying clause). In the last paragraph I noted that a real decision about private copying would be given in a few days in another case, possibly generating more sensationalistic headlines like "Court Kills the Right that Never Was".

The decision came on Friday, but he headline is different then expected, as the title of this post makes clear. A Paris Court of Appeal reversed an earlier decision that had rejected private use as a right and now prohibited the use of copy protection measures on DVDs, being incompatible with this private use. For some background an excerpt from Natali Helberger's article on the first, reversed decision:

The personal copying exception in French copyright law, so the court says, has not the quality of a "right". Instead, the personal copying exception describes the (exceptional) case that consumers who want to make a copy for personal use are not obliged to acquire the rightsholder's permission before doing so. The court went further and argued that nothing different could apply once France had implemented the European Copyright Directive. The Directive left it to member states whether they would provide for a personal copying exception. But even if France decided to do so, the personal copying exception must, according to the Directive, not conflict with the normal exploitation of a work or unreasonably prejudice the legitimate interests of rightsholders. The court then decided that the selling of copies of DVDs was a case of normal exploitation, and rightsholders had a legitimate interest to recoup the investments made.

The latest decision apparently takes a different stand. I've not yet found the ruling, but it is an interesting one, not the least from the perspective of European law. As said, the European Copyright Directive (EUCD) leaves it to member states to ensure that consumers can benefit from copyright exemptions, if the rightsholders using the protection measures don't do so voluntarily (article. 6(4) EUCD). However, fifteen of the 21 exemptions under the EUCD do not have to be provided, amongst which private use. The national provision of a private copying exemption is not mandatory on the basis of the EUCD. This leaves much to decide to the courts, if the national legislature fails or chooses not to intervene.

In general France is taking some interesting steps when it comes to the protection of private use. This latest decision follows on an earlier one, which acquitted a 500+ movies downloader and burner on the basis of the private copying clause. French magistrates also speak out for the "MP3 generation". However, some of the court decision are not in line with each other. This seems very much a transition period that lacks clarity on which side of interests will finally be solidified.

- - -

Also Urs Gasser
French report + English translation

Grolsch Brings Non-Compatible Bottleneck-Can Gadget

Just in time for Queens day Dutch beer brewer Grolsch has come with, as it claims, the first "blikbeugel". This little bottleneck can be locked to a can to increase the drinking experience. Initial tests have show that the "blikbeugel" is not compatible with cans of competitor Heineken. Time for some "reverse-engineering" then. Or would that bring DMCA-like issues? (Obviously trying to squeeze in some legal aspects here.)

Videotron: Canada's Industry Service Provider

If you're a Canadian and appalled by the erratic behaviour of a group of ISPs putting up a fight for your privacy rights, be sure to consider Videotron. Videotron hands over the data of its customers with due speed when requested. Under the motto "Videotron agrees to protect its clients' privacy, Videotron does not agree to protect its clients piracy" [PDF], this ISP will not seek judgments, but let the entertainment industry judge over its customers. Videotron has made up its mind about your rights, while other ISPs say that they are "not in a position to make a determination if some activity is legal or illegal. Certainly if the court determines that it's illegal (to upload to Kazaa) we will respond to it." Videotron provides clarity in muddy times.

While Videotron is happy to take care of your rights, it is even more enjoyed by looking after those of the entertainment industry. No wonder that Videotron's lawyer, Serge Sasseville, is bewildered that other service providers would not do so, especially as they provide access to the pipes through which they push their own content:

It's peculiar, added Sasseville, that the ISPs are fighting the order so fiercely since many of them own entertainment subsidiaries that produce TV and film content that's increasingly being downloaded online for free.

Choose Videotron. Choose copyright over privacy piracy.

Jot: Librarians Guard Moore's Law Magazine

Intel offered a $10,000 bounty for the magazine containing the original Moore's Law article. Now issues disappear from libraries and librarians have to stand guard.

Jot: Nikon Encryption Broken

Nikon's white balance encryption, potentially thwarting competition and raising DMCA issues, has reportedly been broken.

Finland Joins the Privatized Copyright Policement Club

It seems like the entertainment industry is slowly getting legislative foothold in its enforcement efforts, spreading from the US to Western and now North-Western Europe. The Finish Electronic Frontier Foundation (EFFI) reports on a statement by the parliament legislative committee on the revision of the new Finnish copyright law. EFFI notes two proposals in this statement that have been in effect elsewhere for long and would bring copyrightholders, after obtaining a court order, a right to let the ISP:

-provide a user's identity behind an IP address, if there are suspicions of copyright violations

-disconnect the internet connections of violating parties, if "the economic damage caused by the actions of the user became notable"

This shows just another step of the privatization of copyright enforcement assisted by public policy decisions. The mere suspicion of copyright violations may trigger a court (order) procedure in which alledged copyright infringement would lead to a real privacy infringement. Finland will now have it all, no longer the country so sadly neglected and often ignored.

- - -

Thru EDRI

Long Google Digitization Project Article

Technology Review has the longest article I've seen so far on the Google digitization project. But then I haven't seen that much. On the privatization of human literacy, the future of libraries, the three doors of Brewster Kahle, putting pressure on the DMCA and the digitization process:

“We put a whole shelfful of books onto a cart, keeping the order intact. We check them out by waving them under a bar code reader. Overnight, software takes all the bar codes, extracts machine-readable records from the university’s electronic catalogue, and sends the records to Google, so they can match them with the books. Then we move the cart into Google’s operations room.”

This room will contain multiple workstations so that several books can be digitized in parallel. Google is designing the machines to minimize the impact on books [...] “They scan the books in order and return the cart to us,” he continues. “We check them back in and mark the records to show they’ve been scanned. Finally, the digital files are shipped in a raw format to a Google data center and processed to produce something you could use."

Jot: Accussed for being Blogger and/or Woman

The first lines of some extremely vague Iranian news clip:

The court of justice examining lawsuits of several ladies accused of weblogging cleared them of the charge, Judiciary spokesman Jamal Karimi-Rad said on Thursday.

Can somebody tell me what's the deal here? Were these "ladies" accussed because they were weblogging, or because they were "ladies" and weblogging? I guess the first, it may be the last, I fear both....

General Motors Sews Cow's Udder to Waits' Face

He may sound like a diesel engine, but he sure isn't going to let others use this sound to promote their own engines. Tom Waits is looking into the legal options against General Motors for impersonating his voice and style in a Scandinavian Opel commercial. The commercial can be viewed here, wrongfully credited to Waits. The resemblance is uncanny indeed.

Marketers must find something in Waits' gravelling voice that makes it ideal for car commercials, because earlier both Audi and Lancia ripped it off. Waits sued them, as he sued chip maker Frito-Lay and his own record company for using one of his songs for a Levi's ad. He certainly does not want to be associated with commercials in any way:

"Commercials are an unnatural use of my work. It's like having a cow's udder sewn to the side of my face. Painful and humiliating."

Ahw, that must hurt. Maybe he should start a support group with Supergrass (and Bowie and Iggy and Radiohead and...)

- - -

Related: News article

Jot: China Releases IPR White Paper

Today the Information Office of China's cabinet released a white paper on the protection of intellectual property rights in China over the years: New Progress in China's Protection of Intellectual Property Rights. Lots of figures and (legislative) name dropping, which makes me as interested in China's IPR initiatives as aware about my lack of knowledge about them.

Jot: Brunei Keep Positive over Pirated Local Boy

Weird little news snippet about American original songs that are first nationalized, then pirated and finally praised for their international appeal:

Local artiste Boboy has had a couple of hit records like Pak Mamat Ada Kebun (a Malay rendition of Old McDonald Had A Farm) and Mummy Minta Seringgit (Mummy, Can I Have A Dollar?) that entered the top five music chart in neighbouring Malaysian states.

Unfortunately, the tracks have been pirated and thought to be performed by a foreigner instead of the original vocalist, but this at least proves that Bruneian songs do have an international appeal and are sought after in other markets.

French Court Confirms: Copy Protection Measures Legal

Yet again a French court has confirmed that copy protection measures are legal. Last Friday the Court of Appeals of Versailles noted that while a music company may be liable for a refund of a CD's price if the used DRM prevents it from playing on certain devices, the implementation of DRMs is allowed if the user is sufficiently forewarned of its presence.

The headline of this posting, an echo of the French media coverage [e.g. 01net, French], is somewhat sensational. This case is really about labeling, and, much more interesting, about how consumer protection law may have a (future) presence in the protection of consumers (users) against DRMs. Since I have not yet seen the particular decision of the Court of Appeals, I refer to the (confirmed) decision of September 2003 by the Tribunal de Grande Instance of Nanterre that was on appeal [First decision on page, French].

In 2003 the French consumer organisation UCF did question the legality of the use of DRMs after a French woman wasn't able to play her CD in her car stereo (a Renault Clio). The Nanterre court did not come to answer it on procedural ground, and instead considered that:

Françoise M. (the consumer) established that the CD in question was not playable on all her devices, that this anomaly restricted its usage and constituted a hidden defect within the sense of Article 1641 of the French Civil Code. [INDICARE Report, p. 59]

That is, one of the main characteristics of the purchased product (playability) is not present and the consumer's legitimate expectations towards the use of the CD have not been met. This could be considered a "breach of contract" between the retailer and consumer, and lead to a liability related to Article 3(1) of the European Sale of Goods Directive (lack of conformity). (See INDICARE report, pp. 58-60). The French decision in question argued along these lines, though based on French law.

What's important about this legal reasoning is that the protection of consumers against (overzealous) DRMs is sought outside the (traditional) realm of copyright law. While the lack of balance between rightsholders and consumer interests within copyright (e.g. Article 6 v. 5 EUCD) is a point of concern that should be solved, consumer protection law may prove to be of increasing importance in a time that the commodification of information speeds on.

What's unclear is in how far consumer protection law is applicable on the copyright flavoured situations as raised by the French case. For example, would private copying be considered an essential characteristic of a DVD or CD and is it a legitimate expectation of a consumer? Another French court already decided to the contrary. A decision that has been appealed and will be decided upon in a few days. Expect more sensationalistic headlines, e.g.: "Court Kills the Right that Never Was." Time for new rights, time for consumer protection law.

- - -

Background info: Much of this is a reflection of the (Legal chapter) INDICARE State of the Art report [PDF] (pp. 48-49, 55, 59-60)
Also It's not a right, silly! by Natali Helberger on the (French) private copying cases

- - -

Update: Those few days are over and the decision is in: French Court: DVD Protection Incompatible with Private Copying Exception

Jot: The Napsterization by Google Print

The chief executive of major publisher Bloomsburry expresses his technophobia over Google's digitization project that could lead to the "Napsterization of the publishing industry":

"We are being given an opportunity to undermine our industry. It may not seem inherently scary at the moment. But my concern is what this will lead to in 10 years. We are opening a Pandora's Box, and we have no idea where it will lead. We just don't know, once they have this material, what they will do with it."

Jot: Rambo Goes to Court

Sylvester Stallone will be fighting his next battle in court. Women's magazine Sly Magazine has filed a $1 million copyright infringement lawsuit against American Media, the publisher of Stallone's fitness magazine Sly. We all know what Rambo had to say at his first run-in with the law: "They drew first blood!"

Jot: Will Nikon Rely on DMCA to Thwart Competition?

Nikon's encryption of white balance information possibly shuts out third party converters and raises DMCA anti-circumvention issues.

Jot: Chinese IPR Park No Disneyland

Shanghai has an Intellectual Property Rights park and it celebrates its 1st birthday with a week of activities with the theme....intellectual property rights. First I thought this was like a Disneyland for the Chinese IPR enthusiast, but then the article proved me wrong. Still, would have been great: Grokster on Ice. Or, Grokster Iced, as MGM might prefer.

Swedish Artists: Downloading Politically Incorrect

A group of 114 Swedish pop artists has signed an open letter condemning unauthorized downloading as being "on the verge of becoming politically correct". That's about the last thing I'd think about downloading, especially in Sweden, where coming copyright policy will make downloading illegal. I'd say that some evidence points in the other direction: it becomes cool for teens to download and associate themselves with piracy, because it is politically incorrect.

The artists also express the sentiment that downloading is theft:

"We accept that it is the owner's name on the door of the flat where he lives. We don't think it is strange that the grocer earns money from the sausage which is sold in the store. But when the work is creative it is considered that we who created it should accept having it taken by others without getting anything in return."

As a sentiment they are more than entitled to it. As a legal argument the equation of intellectual property and "real" property is poor and "on the verge of" being rhetoric. Until I can download sausages or eat songs I consider them two distinct goods: rivalrous and non-rivalrous. Of course artists should get paid for their work, but not on the basis of baloney argumentation.

- - -

Open letter [Swedish, PDF]

DMCRA Gets Another Consumer Endorsement

From the INDUCE Act Blog comes the belated news that the Homer Recording Rights Coalition has endorsed the Digital Media Consumers' Rights Act (DMCRA) [press release]. I'm a bit skeptical about the (extra) impact this endorsement will have on getting the DMCRA signed into law. Both the entertainment industry and consumer (electronics) side were already heavily represented and fiercely opposing each other during the DMCRA's Congressional hearings. If it does one thing the HRRC's endorsement shines some extra (media) light on the reintroduction of the DMCRA last month.

In a recent post I noted that MGM's concession at the Supreme Court hearing on MGM v. Grokster that ripping a CD would be a fair use weakens the argumentation of the entertainment industry against the DMCRA in the aforementioned Congressional hearings. This kind of concessions, or procedural slips, might do more good for the DMCRA than any more endorsement. Unless it's by the MPAA/RIAA. That would be right after they hail file-sharing and curse DRM.

- - -

For some background info on the DMCRA you might want to check out a short article I wrote: Restriking the Balance: From DMCA to DMCRA.

BTW, the HRRC site also provides a nice reverse chronological legislative history of the Digital Millennium Copyright Act with lots of links to documents

Metro Coding: Technology Enforces Market Strategies

Yesterday Fox and IBM unveiled a technology that is aimed at keeping television content within a certain area and of the internet: metro coding.

[Metro coding is] a technology that uses a digital signal's transport-stream identification, or TSID, to determine the market area targeted by the broadcaster. Once the market is determined, the technology prevents content from being played on any device outside of that area.

Metro coding is not even about copy(right) protection per se, but about coding market strategies into technology. It seems to seal of local markets in order to ensure differentiated revenue streams, for example through syndication. Locking down content in the home network, in a metropolitan area and prevent extra-local distribution through the internet keeps the rest of the world fresh to plough.

This metro coding is reminiscent of the broadcast flag, a DRM scheme seeks to guarantee the secure distribution of digital over-the-air content. Of course this security cannot be guaranteed, even if the Federal Communication Commission tries so by mandating DRM technology. Interestingly enough an IBM research manager says that "In order for (this technology) to be successful, it has to be broadly available within consumer-electronic devices." That is, unless the implementation of metro coding technology in consumer hardware is mandated like the broadcast flag, content will still go global. I can't imagine that consumer electronic manufacturers will do so voluntarily. The broadcast flag has proven to be a bitter challenge, and, with a pending lawsuit over the FCC's authority to mandate, it is still unclear if it will actually rise to the sky this summer.

- - -

Related: Short Article on the (main arguments against the) Broadcast Flag
Cross-posting with the INDICARE Blog

Jot: Bush Bumper Sticker Copyright Infringement

Man sues Republican party for infringing on bumper sticker design.

Jot: Moore's Law's 40th Birthday

Moore's law turns 40 today:

The complexity for minimum component costs has increased at a rate of roughly a factor of two per year ... Certainly over the short term this rate can be expected to continue, if not to increase. Over the longer term, the rate of increase is a bit more uncertain, although there is no reason to believe it will not remain nearly constant for at least 10 years. That means by 1975, the number of components per integrated circuit for minimum cost will be 65,000. I believe that such a large circuit can be built on a single wafer. [PDF]

German Song Lyric Sites Cease & Desisted

I've never really understood musicians that prefer to fill their CD booklets with fancy artwork at the expense of the inclusion of song lyrics. Worse are song lyrics written down in some cryptic handwriting, or cut-and-pasted and printed in a surreal collage, for the listener to decipher (Radiohead-syndrome). Whenever I really want and need to read the lyrics, because of a foreign tongue or unintelligible growling by the singer, I go to a song lyrics site. It may take a few searches and several sites before I get the lyrics I want, but music enthusiasm drives you a long way.

That may come to an end now. At least, there are signs that the amount of online resources for song lyrics are going to be trimmed down. In Germany 42 non-commercial websites that provide song lyrics have received warning notices to take down the lyrics, or face fines higher than usually demanded for the offering of copyright infringing MP3 files.

The (German) law seems pretty straightforward about it that placing (song) lyrics online without permission constitutes a copyright violation. Still, I can imagine it is pretty hard for the website owners in question and music fans to understand this kind of absolute enforcement. Fencing off the exploitation, commercially or not, of copyrights may be a right, but one may question if it is the right thing to do. Not in the last place from a business perspective, coming down on the true fan base.

Jot: Google-Library Digitization Project

Just a little more on the Google-Library digitization project.

Jot: More Cracking of Napster's WMA DRM

Derek Slater of A Copyfighter's Musings chats with PyMusique/Musik coder Cody Brocious on the cracking of Napster's WMA DRM:

You have to have paid for the songs first to do this circumvention, because the keys have to be retrieved from Napster. This tool will actually circumvent and remove the DRM, rather than recording from the sound card or employing other similar workarounds to create unencrypted files. The tool will not circumvent Napster To Go songs using Janus DRM, which is WMA DRM v10 and different from the DRM applied to Light and Premium songs.

Cybersky: Super TV-P2P on Trial

A software program called ByteTornado stands at the centre of a German legal battle over the ability to freely and anonymously exchange television content over the internet. ByteTornado is kind of a BitTorrent on steroids that allows realtime television viewing and transmission. It is the core technology behind the P2P programs CyberTelly and Cybersky-TV. The last is the anonymous, unregulated, "wilder" brother of the first and allows the recording of TV streams, not being bothered by DRM. With a PC and TV tuner card users can transmit their own content, but also DVDs, or paid TV content, as is the fear of pay TV company Premiere.

Premiere obtained a temporary injunction against the distribution of Cybersky-TV, which prohibits

to offer or distribute or operate the Software TVOON Media Centre and/or Cybersky TV, as long as this contains a Peer-to-Peer Function, which allows to broadcast or receive decrypted Content of PayTV-stations over the internet. [TVOON is a personal digital recorder, apparently DRM-free-RL]

On April 26th a Hamburg District Court will decide if the company behind Cybersky-TV, TC Unterhaltungselektronik AG (TCU), may or may not distribute the program. For investors TCU apparently provides a pro-Cybersky-TV legal opinion by some unnamed lawyer:

"If emule or grokster or the hundred other filesharing tools which you may find in all pc-magazines are legal, cybersky is legal too" [...] "a software provider is never responsible for abuse of single users"

Well, that has to be seen. In Germany and on the other side of the Atlantic: this is MGM v. Grokster German style.

- - -

ByteTornado/Cybertelly/Cybersky site
"Legal stuff" page with referred quotes
TVOON site [German]
Thru Urheberrecht [German]

- - -

Update (26/4): The ruling is in: German Court Prohibits Distribution P2P Software

Jot: ISP Sued for Disclosing Subscriber Info to RIAA

Think twice before picking an ISP: a subscriber sues Comcast for handing over her name and address to the RIAA without a Court order.

French School (Anti-)Propaganda Clash

This week the Ligue Odebi, a French action group focussed on digital rights, will come with its own internet & P2P anti-propaganda. Its 14 page booklet will be a point-to-point rebuttal of the brochure Music and Film: Adopt the Net Attitude (French), a government and entertainment industry hybrid that has been distributed over 400 French schools.

It is unclear if this booklet will prove to be more subtle than the propaganda it seeks to repel. On Oblique's forum [French] some of the drive behind this initiative is at least revealed:

If this project of school propaganda is by principle unacceptable and revolting, the conditions of drafting of this pseudo-guide are quite as scandalous:

- the government uses public money to promote the economic interests of the industry

- [It is not] believable that the beneficiaries finance this guide without having impact on its content

- Neither associations of parents of pupils nor teachers were consulted on editing such "a guide": instead it has been edited by professional lobbyists...

- Lastly, it is intolerable that this guide can be used to diffuse the interpretation which the beneficiaries of the law have, while at the same time a Court of Appeals has just put forth a contrary judgment. Until now, in France, it is the Judge who judges.

The last point refers to the recent judgement that acquitted a downloader on the private use clause. The gov-industry's propaganda guide rather creates the image that file-sharing as a whole is illegal and can be punished by prison terms and large fines. This while at the moment the debate about the (legality/legalization of) file-sharing is in full force in France. Maybe we'll reach an equilibrium some day, but for now the (anti-)propaganda wars to recruit kid soldiers rage on.

- - -

Ligue Odebi site [French]
Related: Product Placement Propaganda
French Magistrates Speak Out for MP3 Generation

Internet filtering in China 2004-2005

Today the Open Net Initiative released its report on internet filtering in China 2004-2005 [PDF].
Here's the abstract:

The OpenNet Initiative tested China's Internet filtering of web content, blog postings, and e-mail correspondences. Our testing found efforts to prevent access to a wide range of sensitive materials, from pornography to religious material to political dissent. Unlike the filtering systems in many other countries, China’s filtering regime appears to be carried out at various control points and also to be changing over time. China operates the most extensive, technologically sophisticated, and broad-reaching system of Internet filtering in the world. China’s intricate technical filtering regime is buttressed by an equally complex series of laws and regulations that control the access to and publication of material online. However, ONI found that most major American media sites, such as CNN, MSNBC, and ABC, are generally available in China (though the BBC remains blocked). Moreover, most sites we tested in our global list’s human rights and anonymizer categories are accessible as well.

Here's a Washington Post article on the study, which is critized here for its uncritical reporting on the sole technology focus:

The problem is that the focus is purely technological and that is part of the problem I have with this kind of research. This kind of research only makes sense with observation made on the ground. Strategies to go around the often-failing filtering technology is so common place that controlling the internet is an illusion. But since this illusion matches the classic way of framing the China-story by the Western media, top-down, evil and powerful, papers like the Washington Post just repeat the assumptions of the researchers without asking any critical questions.

Mein Kampf & Copyright

Last month I reported on how copyright is used to prevent the publication of Hitler's Mein Kampf. Now the German magazine Der Spiegel runs a story on the issue, and at his blog Karl Lenz gives some additional insights on the copyright on illegal works. He seems to think that from a legal perspective there is nothing wrong with the use of copyright to prevent publication. One might disagree, but as I pointed out the sheer availability of Mein Kampf on the internet makes this prevention hardly effective.

Jot: MP3 Blogging

Short Guardian piece on MP3 blogging and copyright.

PyMusique Creators Crack Napster DRM

The creators of PyMusique have now focussed on Napster, and reportedly cracked its DRM to make it work with Linux:

[I]n the process of making PyMusique work with Napster, the group have broken the Digital Rights Management (DRM) system that the company uses. Unlike Apple's iTunes, the DRM is applied 'server-side', making the decryption process a lot more complicated. The team have formulated a method for removing the DRM on WMA files allowing them to play on non-Windows systems.

Amazingly, [PyMusique creator] Brocious says the DRM crack could be applied to other stores (MSN Music, Napster, Wall mart) using the WMA file format; "we would have to figure out how to get their license keys, which is a relatively trivial process".

Spanish Internet Inquisition Pokes with IP Cushions

Last Friday the Spanish government approved an anti-piracy plan of the Ministry of Culture that, amongst others, seeks

• the formation of specialized public prosecutors and judicial experts to make fast judgments against intellectual property crimes

• the creation of specific Internet anti-piracy police units

• the creation of a working group "to detect and to remove illicit content on the Internet"

The working groups would be made up by authors rights organisations and internet providers, and might bring intellectual property censorship to the internet. Apparently the anti-piracy plan wants these groups to oversee the data stream on the net and police it for infringing content. This would be another example of the enforcement of public policies by private parties, thus curbing around the constitutional protections that dominate the state-citizen relationship. However, from the reporting it is yet unclear to me if this Spanish Internet Inquisition will actually poke with some hard cushions, and how they would think to realize this.

Internet user groups and consumer organisations are upset by the anti-piracy plan, and that they were not invited to participate in its drafting. These same groups are coming to arms against the extension of levies on data carriers to compensate for private copying. At the end of this year there will be a revision of the Spanish intellectual property law, and the collective management organisation for authors rights, SGAE, has already called for putting a "canon" on harddisks, USB sticks, printers and even DSL connections.

The consumer organisations point out that it is inherently unfair to ask for an (extended) remuneration, while anti-copying measures (DRMs) are introduced that actually make this copying impossible. Some have started an anti-canon campaign:

One consumer organisation (FACUA) has put a petition online against both the anti-copying measures and the canon. It asks not to extent the application of levies and for the recognition of a private copying right

"in order to end the use of anti-copying systems in musical and audio-visual works, which are easily circumvented by the piracy Mafia, while they do no more than to limit the user's possibility to make copies of his CDs to enjoy them in MP3 players, for example." [translation mine-RL]

It looks like things are heating up in Spain. Little IP fires are burning all over Europe.

- - -

Sources:
Heise article 1 + 2 [German]
Internautas website
SGAE website
Monty Python's Spanish Inquisition MP3 + text + MPEG

French Data Protection Authority Allows P2P Monitoring

(Sell anti-piracy poster: "All pirates will end one day by engraving the same game")

The French Data Protection Authority (CNIL) has decided that the software industry may track and monitor file exchanges on P2P networks. The software lobbying organisation SELL is allowed to send "piracy prevention messages" to file-sharers and collect their IP addresses in databases. These are common anti-piracy practices and widely used.

In Sweden the collection of IP addresses by the national anti-piracy organisation was reported to the Swedish Data Inspection Board, because "it is illegal to archive information that purports to, and can be linked to, individual data (i.e. IP-numbers that can be linked to subscribers) and to try to link this to criminal actions." While the Swedes still have to decide, the French now have.

CNIL said that IP addresses will only get a "personal character within the framework of a legal procedure". It also thought that the actions presented by "SELL were likely to preserve a balance between the protection of the rights of the people of which data are processed and the protection of the rights from which the authors and other rightsholder profit." [translation mine-RL]

Interesting to call this the "preservation" of a balance. That's a new balance then, with less privacy protection due to increased monitoring and registration of individual internet behaviour. You can argue that this provides the preferred balance, but it certainly does not preserve the (in)balance that was.

- - -

Thru Audionautes
CNIL on its decision [French]

World's Nicest Litigators Launch International Wave P2P Lawsuits

The largest wave of international file-sharing lawsuits started rolling this morning in Amsterdam. At a press conference the head of the International Federation of the Phonographic Industry (IFPI), John Kennedy, announced that legal actions are taken against more than 950 persons in 11 (European) countries. He showed some pretty high self-esteem: "We have been responsible and transparent litigators - some might say the nicest litigators in the world."

The nicest litigators in the world have now put their eye on several European countries for a new round of nice litigation. Amsterdam was likely chosen to bring this nice message, so that the Dutch anti-piracy organisation BREIN could bring some extra attention to its own nice message: the first lawsuits against uploaders in the Netherlands start today. Last month Dutch ISPs forwarded 50 cease & desist orders for BREIN to their customers. The fruitful result: 7 people settled for an average of 2100 euros, 43 did not react to the threat of nice litigation. BREIN will now have to get a court order for the ISPs to provide the names and addresses of those 43. There is no legal basis for ISPs to hand over such information to private persons or organisations like BREIN, and it may prove a long road of nice litigation for BREIN to actually see any result.

My personal favourite vision from this morning's press conference came from the director of Dutch collecting organisation BUMA/Stemra. He not just thinks that it is a shame that ISPs do not automatically deliver the name and address information of their customers, but apparently he complained that

Thanks to the increasing storage capacity of devices and the increasingly fast broadband connections providers and hardware producers make it very easy for consumers to copy music.

Well, why not sue those providers and hardware producers for contributory liability? Demand restriction of hard disk capacity to 20 gb and a return to dial up modems for private persons. Anything to protect the music, right?

- - -

Sources:
IFPI site with Kennedy's speech, press releases and statistics on file-sharing
WebWereld 1, 2 [Dutch]
Bits of Freedom news letter on BREIN'S litigation with PDF of cease & desist letter [Dutch]

Jot: Grouper's Restricted File-Sharing Model

LA Times article on Grouper, the 30 persons max. file-sharing application that tests the boundaries of copyright.

Product Placement Propaganda

While teaching the kids that downloading equals theft, and that you may end up in prison for doing so, why not put some product placement in your propaganda. French news paper Le Monde reports on the entertainment industry's propagandists bringing their message of fear to the schools and pushing the products of their sponsors at the same time:

It is time to launch the video clip of Promomusicfrance, also a partner. The CD industry lobby transmits its message [...]: "Distributing musical files of which you do not have the rights brings 3 years of prison and a 300 000 euros fine... That's a big risk for something small. While there are free offers and legal pay sites." The logos of the Ipod products and the Itunes site appear on the screen. Apple is obviously a partner. [translation mine-RL]

That is, a partner to the anti-piracy campaign, which hits the French public schools at the moment. The 3 years of prison threat is misleading. Pushing selected logos on a captive audience of school kids only reveals the shamelessness of these tactics. Brand your product! Get them while they're young! This statement by one of the propagandists of the campaign shows the craving for fresh, young meat:

"For the pupils of 4^E and 3^E, it is a little too late, [...] they already took bad reflexes. In fact it would be necessary to be able to intervene as of the primary school."

That's about 7 years! The kids' age, not the prison sentence they're threatened with, which still stands at three years. Soon we will be harvesting a generation of juvenile delinquents.

- - -

Le Monde article [French]
Thru WeBlog P2P & NTIC [French]

Jot: Barcelona's Hacker School

BBC reports on a "hacker school" in Barcelona. A teacher on hacking's sexiness:

If you go back 50 years ago what was sex education? Sex education was 'sex is out there, don't do it, you'll get diseases'. We have the same situation now. We can't really tell you what hacking is.

Jot: Filtering in Bahrain

Open Net Initiatives' latest filtering report, this time on Bahrain. (Filtering in China 2004-2005 will be released coming Thursday.)

Faces of the Piracy Cult

Take a good long look. This is what the entertainment industry is up against: teenage Long John Silvers roaming the networks with the biggest grin. These particular self-acclaimed pirates are from Sweden. The photograph is an entry into a competition launched by the site Piratbyrån that asks "pirates" sent in photographs of themselves in pirates' clothes. To make it all the more easy they refer to the site's "piratshoppen", where young models show off shirts with the Piratbyrån logo.

Yeh, piracy is cool, sexy and very fashionable. Piracy is a life style, and these teenage kids are getting their kicks and living it out. The piracy cult is mainstream culture and surfacing under the repressive enforcement of copyrights. Well, that is the picture you might (literally) get from this stylish piracy propaganda.

In light of the recent "piracy" crack down Piratbyrån has also asked its readers to boycott the companies behind the anti-piracy organisation Antipiratbyrån and the IFPI: Don't Buy DVDs *Don't Rent Movies*No Cinema, is my crude translation of the call at the bojkott.com site [Swedish]. Seems a bit strange, to call kids to boycott content they hardly bought in the first place, true pirates as they are. The Bojkott logo and some more Colgate teethed pirates:

So, are these the new rebels without a cause? Rebels, yeh. No cause, nah. They've been branded pirates by the industry and now they live up to its high expectations, tasting the fruits of freedom that the internet brings them. You might just wonder to what extent the free in freedom means gratis to them. If the industry's accusations of pillaging are cultivated, and this cultivation becomes culture, what then happens to the fight for true user rights?

- - -

Related: Swedish Anti-Piracy Organisation and ISP Shae Hands

Monopoly "Modder" Gets Out of Jail Free Card

Ever felt the frustration of getting milked by your opponents' endless rows of hotels and houses while playing Monopoly? The maker of RadGames' Super Add-Ons apparently did, and decided to add some extra game play to the mother of all capitalistic games. Monopoly manufacturer Hasbro was not amused by this "modding" and wanted to send RadGames to Go to jail for trademark and copyright infringement. It got a temporary restraining order and RadGames had to stop producing its Monopoly compatible board game.

However, this week the United States District Court for the Southern District of New York lifted the order and refused to enter into a preliminary injunction, noting that:

"RADgames has added a new, original creation to the market which is designed for use with the plaintiff's product but is distinctive in its own right."

And, it may prove to bring extra value to owners of the original Monopoly, increase the popularity and sales of Monopoly itself and, finally, bring a solution to thousands of boards being toppled out of sheer frustration over getting squeezed to the bone for your last Monopoly dollar.

- - -

RadGames' press release and site

Finnish DrinkOrDie Crackers Acquitted

A Finnish court of appeals has acquitted two members of a DrinkOrDie group from copyright infringement. The two were convicted with two others in 2003, but appealed. From the news article:

The court noted that the men, known as "crackers", did not personally benefit from the pirate copies, and that they were only distributed to a small group rather than to the public at large. They used computers at a vocational college in Kuopio to download, "crack" and distribute files.

The men were associated with DrinkOrDie, a global organisation that distributed illegal files known as "warez". It was broken up around the turn of the millennium by law enforcement agencies in various countries, including the United States and Australia.

Last month the leader of an Australian DrinkOrDie group lost an appeal against extradition to the US for copyright infringement. With these kind of Finnish rulings one can imagine why the US tries to get alledged infringers within its juridical (and penal) reach.

- - -

Thru Karl Jonsson's Weblog

Movie & Music Industry Proposals ISP Self-Regulation

European Digital Rights reports in its latest news letter on the efforts of the movie (MPA) and music (IFPI) industry to come to a self-regulation of ISPs. In order to curb copyright infringements the industry asks providers to:

• "remove references and links to sites or services that do not respect the copyrights of rights holders".
• "require subscribers to consent in advance to the disclosure of their identity in response to a reasonable complaint of intellectual property infringement by an established right holder defence organisation or by right holder(s) whose intellectual property is being infringed"
• terminate contracts of recidivist
• implement instant messaging to communicate with infringers
• implement filtering technologies to block sites that are 'substantially dedicated to illegal file sharing or download services.'
• voluntarily store data for copyright enforcement

Several of these propositions blatantly violate the privacy protection of users. Advance disclosure of one's identity to aid copyright enforcement would be a significant weakening of users (defense) rights. The content industry could skip getting a court order to require ISPs to link subscriber's names to IP addresses.

Furthermore, these are just more examples of a tendency to focus on internet intermediaries for law enforcement. The current restricted liability is subject to renewed scrutiny, and might be widened at the expense of ISPs, or better, its subscribers. Speaking of which, the letter also points to this gem:

"To enforce terms of service that prohibit a subscriber from operating a server, or from consuming excessive amounts of bandwidth where such consumption is a good indicator of infringing activities."

Yes, forget about that digital revolution of production and distribution models. It will be a top down world after all, if the incumbent industry can help it.

Jot: Brazil Spreads Open Source Gospel in Africa

Brazil assists African governments with the adoption of open source software for the managment of Top Level Domain (TLD) registries.

Jot: Grokster and the Pizza Principle

Berkely professor Hal Varian tracks the historical clash of copyright and technology in today's New York Times (registration required):

So what should the policy be for new technologies like Grokster? I advocate the Pizza Principle: If you want everybody to get as big a slice as possible, you first have to figure out how to bake as big a pie as possible. Once you have a nice big pie, you can let people fight over how they slice it up.

With respect to technology, the Sony decision got it right: encourage technologies that create more total value. Then, let companies fight to find business models that deliver that value to consumers. They can be awfully creative when they are forced to be.

European: Patent Genetically Modified Soy Not Revoked

The European Patent Office (EPO) has decided no to revoke the patent on Roundup Ready soy of biotech company Monsanto. The genetically modified soy is widely used, though the European Union has for long been hesitant to approve Roundup Ready corn for consumption. The safety of consumption aside, the patenting of the soy raises interesting control issues.

Farmers using the genetically modified (Roundup Ready) soy may have lower production costs, but they also enter into a relation of possible restrictive licensing with the company providing the soy (i.c. Monsanto). Farmers will have to buy there seeds from the company or authorized dealers, may not resell them to others and possibly not reuse them. Eventually genetically modified and patented soy may flood the market at the cost of (more expensive) conventional soy, creating a lock-in for the farmers. The basis of food production may become covered by the control of patents.

The planting of Monsanto's soy was approved last year in Argentinia. At a press conference, organised by Greenpeace, the president of the Federación Agraria Argentina said:

"Countries which allow for patents on life give up their sovereignty on their national resources and violate the rights of the farmers to use their own seeds. Farmers who are sowing Monsanto plants have to be aware that they are also growing the seeds of monopoly; this is true for Europe and Argentina. The company is taking farmers prisoner and denying them the chance to return to farming non-GE seeds."

Greenpeace notes that Monsanto's patent contravenes with article 53(b) European Patent Convention:

European patents shall not be granted in respect of:

(b) plant or animal varieties or essentially biological processes for the production of plants or animals; this provision does not apply to microbiological processes or the products thereof.

My knowledge on these patenting issues is insufficient for extensive commentary. I'll be looking forward to some, from either side in the weeks to come. I'd like to know why I should sink my teeth in a genetically modified sandwich.

- - -

Greenpeace press release at Common Dreams (obviously biased)
Related: US IP Order Targets Iraqi Seed Savers
Australian Seed Piracy

Jot: Brokers: Copyright Affirmation Always Good Thing

So, what do the brokers think about a NY court providing common law protection to pre-1972 sound recordings:

Commenting on New York State Court of Appeals ruling giving copyright protection to pre-1972 recordings, Morgan Stanley says "affirmation of copyright is always a good thing," although it sees "little immediate impact on trading."

I'd say some might disagree, on the affirmation part.

Grokster Transcript

The transcript of the oral argument in MGM v. Grokster has been posted by The Challenge of P2P blog: Grokster Oral Argument Transcript [PDF].

- - -

Thru Copyfight

Jot: Iranian Report on Torture of Bloggers

Iranian government is to present a report on the torture of bloggers. Human Rights Watch sees risk of cover-up.

Paper: Social Costs of DRM Rules and Standards

Dan L. Burk has released an interesting looking paper on SSRN called: Legal and Technical Standards in Digital Rights Management Technology. For your consideration, here's the abstract:

This paper examines certain social costs of deploying digital rights management or "DRM" systems to protect copyrighted content. The calculus of costs and benefits for such technical self-help is highly complex, and the prospect for successful "self-help" via such measures is uncertain due to the deterministic nature of the technical design. DRM systems essentially provide an automated alternative to legal protections such as copyright. But because it is impossible to program complex situational responses into DRM systems, DRM constitutes the equivalent of a legal rule, rather than a legal standard. Thus the literature on rules and standards is useful in evaluating the effects of DRM deployment. As this literature would predict, DRM shifts discretion away from the user, toward the producer, and DRM design therefore resembles legal rule making rather than legal standard setting. Previous analyses of rules and standards suggests that rules are preferable when the costs of ex ante decision-making will be lower than the costs of ex post discretion and adjudication.

Ex ante DRM design decisions by content producers are also likely to be driven by the character of the technology. At the same time that DRM stands in for a legal rule, it also comprises a technical "standard." For reasons of interoperability and trust management, DRM will tend to converge on a single standard. This means that DRM will tend toward a type of technological "monoculture," presenting opportunities for the standards owner to engage in anti-competitive market distortions. This result will tend to be reinforced by legal anti-circumvention measures, a trend already apparent in the employment of the DMCA in some court decisions. However, more recent appellate decisions seem determined to resist this result, employing statutory re-interpretation and the threat of anti-competition sanctions to reverse the worst effects of DRM market distortion.

The Steps of Separation of Forbidden Linkage

Last month the German online magazine Heise was prohibited to put a link to a site that provided forbidden anti-cirumvention software in one of their articles. The written opinion of the court is now available, of which Heise itself has the following summary:

The Munich court ruled that, by providing a link to the company's homepage, heise online had intentionally provided assistance in the fulfillment of unlawful acts and is thus liable as an aider and abettor in accordance with Section 830 of the German Civil Code just as the vendor in itself is. While no link was provided to download the software, it could be downloaded two clicks later, which the court found to be inadmissible. For the court, it sufficed that readers could directly access the vendor's web site from the link in the report. The court also did not find it relevant that readers were also able to find the product via a search engine. Rather, it ruled that providing a link made finding the software "much easier", thus increasing the danger of violations of copyrights considerably.

Interestingly enough the German court frees Heise from accusations on the basis of the anti-circumvention provision of the German copyright law (Section 95a, German), and instead relies on the Civil Code to come to a conviction. This is unlike, for example, the conviction of the hacker magazine 2600 under the DMCA's anti-circumvention provisions for posting the DeCSS.exe some years ago. Assistance, inducement...there are enough legal roads outside copyright to protect intellectual property.

Remains the question, how many steps of separation must there be for a link to be legal? Apparently two is not enough. Three, four, five - when does clicking become so cumbersome that there cannot be liability for assistance in unlawful acts? "See no evil, speak no evil, hear no evil", would a be a nice title for this ruling. With a contradictory subtitle that underlines the internet's reality when it comes to attempts to suppress forbidden information: You can't click, but you can't hide.