Thursday, June 30, 2005

Jot: Russia to Introduce Internet Monitor Commission

In its efforts to protect intellectual property rights the Russian government:
will introduce a new Internet commission that will monitor the web for illegal sites and violations of authorship rights, said Aslan Yusufov, a senior prosecutor in the legal department of the general prosecutor's office.
I guess this is also an effort to reduce the unemployment rate, considering the work this commission will have on its hands, monitoring the (Russian) internet for copyright infringing content. Maybe it will do a little overtime and get rid of some non-copyrighted speech that it might deem illegal nonetheless.

Jot: Korea's Gamers Anonymous

New South-Korean laws come to the aid of game addicts:
And the ministry of culture and tourism has to come up with solutions for the problems related to games, such as addiction to games and youth gambling.

New laws encourage the ministry to set up clinics and educational centers for game addicts and related policies

Wednesday, June 29, 2005

RealNetworks Markets Grokster

RealNetworks apparently uses the Grokster decision to market its own Rhapsody 25 music service. According to Brandweek it ran a full-page ad in the LA Times, New York Times and USA Today. I haven't seen it, but here's a description:
Creative for the print ad shows the names of bands forming a judge's gavel. Copy reads: "THE DECISION IS IN. THE BEST CHOICE FOR FREE, LEGAL DIGITAL MUSIC IS RHAPSODY. On Monday, the Supreme Court made its decision. Now you can make yours by going to It's the only place where you can get free and legal access to over 1,000,000 songs, and share music with your friends. Great music whenever you want it. No hassles."
If you haven't seen it either, don't worry that you might miss out on making your own decision. RealNetworks also plans to lure you to its service by deploying "an aggressive search-term campaign that capitalizes on the ruling". They're at it again: the big words of "free(dom)" and "choice" and the capitalization on another company's success. Or in this case, legal missery. Makes no difference to RealNetworks; just playing the game.

P2P Monitoring by French Rights Organisation

In April the French Data Protection Authority CNIL authorized the software lobbying organisation SELL to track and monitor file exchanges on P2P networks. Now SELL's sister organisation for copyrightsholders, SACEM, is likely to obtain the same permission. It will use the company Advestigo, which has asked CNIL for an authorization to collect IP addresses and send anti-piracy messages to file-sharers.

SACEM's action would consist of three phases:
  1. both up- and downloaders will be located and receive an automatic message to inform them of the illegal character of their acts (that's illegal in SACEM'S view when it comes to downloading)
  2. if these users continue their infringing activities SACEM may ask a judge to order their ISP to terminate the subscription
  3. after that the SACEM may file a complaint against the file-sharers with the authorities, which can lead to a criminal investigation and prosecution
This is all not very new and surprising. More and more the push for P2P monitoring seems to overcome privacy protections. In France SELL provides a precedent for SACEM. In Sweden the Data Protection Board ruled that the national anti-piracy organisation broke data protection laws by collecting IP addresses, but it also made clear that private organisations can apply for an exemption to the data act. Dutch anti-piracy organisation BREIN already collects IP addresses and sends warning messages to file-sharers. Authorization of these activities is taking the first privacy hurdle in the longer run to the second: obtaining the identities behind the IP addresses. It now seems like the first hurdle gets lower and lower to the benefit of the second. In the end there may be little privacy protection to jump over before reaching the finish line: a lawsuit for copyright infringement.
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Thru WeBlogs P2P & NTINC [French]

French Minister Greets Grokster Decision

Grokster has crossed the Atlantic and hit the shores of France. The French Minister of Culture and Communication, Renaud Donnedieu de Vabres, came with an official reaction to the decision yesterday [French - (rough translation mine]:
Renaud Donnedieu de Vabres, Minister of Culture and Communications, thinks that the decision of the Supreme Court establishing responsibility for the owners of software that allows the illicit exchanges of files (peer to peer: "poste à poste") is likely to move the debate in France forward.

He hopes that this decision can contribute to aid the deliberation of all the actors involved.

He notes with interest that it constitutes a useful and important stage in the fight against illegal file-sharing and contributes to the emergence of a protected legal offer, which is in constant progression.

In this perspective and in the wake of the parliamentary debate on the [draft] bill on copyright in the information society, which will be examined at re-entry, the Minister of Culture and Communication has asked his staff for a legal evaluation of the American decision.
I doubt that the French Minister has actually read the decision, but apparently his staff will. That is probably the most interesting part of his rather flat reaction: the American decision is not just deemed a useful guide for the national debate (in which the Minister chooses sides), but also for the deliberations on the regulatory changes in the French copyright law. It is not stated, but suggested that MGM v. Grokster may be used as a source, or even inspiration in the parlimentary debate on copyright reform as part of the implementation of the European Copyright Directive. Has the European echo started?
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Thru WeBlogs P2P & NTIC

Tuesday, June 28, 2005

Cashing In On Grokster's Footnote 12

Grokster is cashed in by Digimarc, the first company to give yesterday's US Supreme Court's ruling a commercial twist. In the lead of a press release this DRM corporation states:
Court ruling in MGM v. Grokster identifies digital watermarking as a technology that P2P file-sharing companies could deploy to deter copyright infringement.
Together with encryption and fingerprinting technology, watermarking is directly referred to on page 16 of the Supreme Court's opinion [PDF] as one of the "new technological devices that will help curb unlawful infringement". However, more indirectly, Digimarc refers in its press release to the now (in)famous footnote 12 of the opinion and the attached paragraph that describes one of the three indicators of intent within the inducement test [see p. 22]:

The paragraph:
Second, this evidence of unlawful objective is given added significance by MGM's showing that neither company attempted to develop filtering tools or other mechanisms to diminish the infringing activity using their software. While the Ninth Circuit treated the defendants' failure to develop such tools as irrelevant because they lacked an independent duty to monitor their users' activity, we think this evidence underscores Grokster's and StreamCast's intentional facilitation of their users' infringement.12
And footnote 12:
Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony safe harbor.
Much has been said about this paragraph and footnote. If you haven't already, read the posts linked to in the previous sentence for the bigger picture. Just focussing on this specific passage, the Supreme Court tries to keep its breath, while breathing; to suck and blow at the same time: a failure to prevent copyright infringement through technological measures does not bring intent in itself, but in combination with indications of marketing efforts (e.g. advertising) this failure may become the straw that breaks the file-sharing system's neck.

Digimarc, and the content industry, now burn this straw as part of their push for the implementation of technological measures that prevent copyright infringement and assist enforcement efforts after a copyright infringement. The message is clear: P2P file-sharing companies better patch footnote 12. They better deploy (DigiMarc's watermarking) technology, not just to prevent infringement, but to prevent being shut down just because they fail to deploy watermarking, fingerprinting, encryption. Show good intentions, instead of intent. Redesign you open infrastructure, join the DRM club and legalize. In this light the failure to develop technological measures becomes a bit more than an extra, propelling footnote to intent by indications of marketing.

Footnote 12 and attached paragraph (in that order) cater to the drive for closed, DRMed P2P networks by the content industry. And Digimarc, like other companies, are reaping the fruits and willing to cater to both parties: "Digimarc and its business partners stand ready to support copyright holders and the P2P industry as they consider the implications of this important ruling." In the meantime the catering Digimarc got today was a "coincidental" victory banquet with the Motion Picture Association of America "at a luncheon discussion with the Congressional Entertainment Industries Caucus". It must have had the sweet taste of success.

Google Video Viewer Launched & Patched

Yesterday Google introduced an in-browser video player for its Google Video Search: Google Video Viewer. One of its features apparently prevents users playing videos that are not hosted on Google's servers. The usual suspect, Jon Lech Johansen, rises to the occasion and provides a patch "to remove this restriction".

Monday, June 27, 2005

Grokster Loses...Unanimiously

From the SCOTUS Blog:
The Supreme Court ruled unanimously that developers of software violate federal copyright law when they provide computer users with the means to share music and movie files downloaded from the internet.


The opinion by Justice Souter [PDF]

A snip:
"We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."
Justice Ginsburg concurred [PDF], joined by the Chief Justice Rehnquist and Justice Kennedy


Justice Breyer concurred [PDF], joined by Justices Stevens and O'Connor

Some (European) reflections later on, after the frenzy has calmed down (in the (US) blogosphere)

(Thru The Importance Of...)

Two roundups of commentary on the decision: Furdlog & EEJD

Friday, June 24, 2005

Dutch Supreme Court Advised: ISP Must Provide Personal Data

The Dutch Supreme Court has been advised to decide that the ISP Lycos has to hand over the personal data of an anonymous customer to a private third party. The so-called "Advocaat-Generaal", a neutral counsel to the Supreme Court on cases brought before the court, apparently follows the conclusion in an earlier ruling by the Amsterdam Court of Appeals in the Lycos v. Pessers case.

Pessers, a Dutch lawyer and stamp trader that offered stamps for sale on eBay, was accused of fraud by a Lycos customer on a website hosted by Lycos. Pessers demanded the personal data of this customer to take legal action, and a court of first instance ordered Lycos to comply. Lycos appealed the decision, but the Amsterdam Court of Appeals decided that the ISP did have to provide the data, even while it acknowledged that the accusations on the website were not "apparent unlawful". This condition for website removal by ISPs derived from the European E-Commerce Directive was not met, and the decision was criticized for bringing an a less strict test for providing personal data by the ISP:
a) that it is likely that the information is unlawful against the third party
b) the third part has a genuine interest in obtaining the personal data
c) that there are no other, less-intrusive means to obtain the personal data
d) weighing the interests of the third party, the ISP and the subscriber
If the Dutch Supreme court takes over the advice of the Advocaat-Generaal, this may have important consequences for both annymous speech on the internet, the (liability) position of ISPs and, related, the provision of personal data of file-sharers by ISPs to anti-piracy organisation. In relation to the last pooint, it was the Dutch anti-piracy organisation BREIN that financed Pessers defense before the Supreme Court by providing two lawyers. BREIN is currently in court to obtain the personal data of file-sharers from five Dutch ISPs, and a confirmation of the Lycos v. Pessers case by the Dutch Supreme Court would undoubtedly provide it with a (legal) advantage. In his advice the Advocaat-Generaal apparently rejected Lycos' view, as also argued by the ISPs' attorney in the current file-sharing case, that criminal proceedings would be the path to follow to obtain personal data. This will be a very interesting (legal) summer for anymous speech, the position of ISPs and the crystalisation of legal issues surrounding copyright enforcement against file-sharers. There has been a heat wave in Holland the past few days, and there will be a second, legal one in the coming months.
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Decision Lycos v. Pessers, Amsterdam Court of Appeals [PDF - Dutch]
Extensive commentary on the Amsterdam Court of Appeals' decision [Dutch]
Thru webwereld [Dutch]

Thursday, June 23, 2005

Machiavellian Picture Association of America

The Motion Picture Association of America (MPAA) has reportedly issued a correction to its disputed claims that it shut down an illegal DVD/CD replicating plant and seized $30 million in illegal stampers and DVDs:
In response to the company's objections, the MPAA issued a release correcting its assertion that the plant was shut down.

The trade group said the $30 million figure was reached by estimating the value of the DVDs that could be produced by the stamping machines that were seized.
That's right, could be produced. The MPAA presented potential losses as actual losses. Possible future infringements as current infringements. I wonder if this exemplary for the MPAA's calculation of damages allegedly brought by P2P networks and private copying, for example. Believing that the possible worst is the reality that is. This is not just bad math, this is a mind set: if users can steal, they will steal, thus they actually steal. If users can copy, they will copy. If users can share, they will share. It is in human nature to do so, to do bad.
"Thus, you must know that there are two kinds of combat: one with laws, the other with force. The first is proper to man, the second to beasts; but because the first is often not enough, one must have recourse to the second."
That's Machiavelli speaking in The Prince, and the MPAA seems to be taking his view of human nature and advice on ruling the public to its heart: it's a combat, with lawsuits and with technological force. It's for the better of man, if not in its own princely interests: to gain, maintain and expand its power through fear and love.

Jot: No copyrighted Characters on Library Mural

In '89 Disney threatened to sue three day care centers in Florida for having painted Mickey Mouse on their walls. The Mickey Murals were removed. No wonder a muralist, working for a public libary, chose a jungle theme instead of her original idea:
“I had a lot of designs, and I talked to the head librarian about what I had in mind,” she said. “My first idea was to have a perspective painting of library shelves going off into the distance, with books lying open on the ground and different kids’ book characters popping out of them. That would have been really hard to do because of copyright law."

US Federal Trade Commission P2P Report

The day the US Supreme Court's decision in MGM v. Grokster did not come down the US Federal Trade Commission issued a report on its December 2004 workshop on P2P file sharing: Peer-to-Peer File-Sharing Technology: Consumer Protection and Competition Issues [PDF]. At a first glance it doesn't seem to bring much exiting stuff, though it tries to present the opposing views of the debate. A little less prudence would have been nice:
Given the legal uncertainties pending the [Supreme] Court’s [MGM v. Grokster] decision, FTC staff concludes that it would not be prudent to draw conclusions or make recommendations regarding the intellectual property issues raised by P2P file sharing.

Tuesday, June 21, 2005

Online Anti-(Child) Pornography Rules to Take Effect

Next Thursday Title 18, Section 2257 of the U.S. Code created under the Child Protection and Obscenity Enforcement Act will take effect. That is, unless the Free Speech Coalition, a trade organisation of the adult entertainment industry, is heard in its complaint and motion seeking a Temporary Restraining Order enjoining enforcement of the Title 18, Section 2257.

The section in question sets out rules for the registration of the identity and age of performers in adult (read porn) magazines and movies, which should be handed over to federal inspectors on demand. Not jus producers of the content are covered, but also so-called "secondary producers" like websites that distribute it. While aiming to battle child porn, the regulation is said to be part of a politically motivated crack down on porn in general. As an anonymous technology provider said in this August 2004 Wired article:
"Unlike enforcement of obscenity laws, which require vetting of community standards, this is 'yes or no, do you have the documents?' for webmasters," said one technology provider close to the matter who requested anonymity. "This is a much more efficient way to wipe out online porn, a goal Ashcroft has already stated."
Ashcroft has now been replaced by Gonzales as Attorney General, but the goal stays the same. As do the concerns and emotions. Says Will Doherty of the Online Policy Group:
"Unilaterally changing interpretation of the law to require that every Web site owner check and record IDs from all those who appear in explicit images is an outrageous attempt by a repressive administration to effectively halt the publication and exchange of many images of adults -- including those of lesbian, gay, bisexual and transgender persons -- engaged in consensual explicit activity."
Both the scope of the proposed rules and the likeliness of an anti-pornography agenda using such an important and delicate subject as anti-child pornography regulation, is troubling. By pushing pornography in the realm of child-pornography the needed subtlety for an effective, constitutional enforcement gets lost in the crudeness of generalization.
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See also Little-Known Anti-Pornography Statute Threatens Free Speech by Ernest Miller (Aug 26, 2004)

Jot: Debunking MPAA's Crack Down Claims

The Motion Picture Association of America cracks down on a DVD plant, apparently makes up some bogus claims and the plant owner has to do damage control in a press release:
"The MPAA release falsely claimed that the 'High Tech Task Force stamped out an illegal DVD/CD replicating plant.' This is categorically not true. Our business is to duplicate material for customers who own the copyright and material that is in the public domain. By these false allegations, the MPAA has slandered our name and reputation and damaged the business that my husband and I spent 14 years to build"

Publishers Ask Google Library Project Moratorium

The Association of American Publishers (AAP) has sent Google an unpublished letter in which it asks to stop scanning copyrighted books for six months till concerns over copyrights are cleared. R. Adler, vice president of legal and governmental affairs of AAP
[S]aid the letter was sent because members of the publishers' association feel they have not "gotten satisfactory answers to their questions about copyright infringement." Many publishers say that Google does not have the right even to scan a copyrighted book -- they argue that making a digital copy of a volume for any commercial purpose requires the permission of the copyright holder.
Google is scanning the libraries of several universities, of which Harvard and Stanford have allowed copyrighted books to be included in the process. Google has not yet answered to the requests, but thinks that their "program is fully consistent with fair use under copyright law." Six months sounds like a short term to get "satisfactory answers". Might this be the prelude to a fine-tuning lawsuit over Google's Library Project?
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Related CoCo: Long Google Digitization Project Article
CoCo: Jot: The Napsterization by Google Print
CoCo: Jot: National Libraries Support Euro-Google Digitization Project

SearchEngineWatch Blog

Jot: Webcast Copyright Office On Music Licensing Reform

If you can spare the time, and possibly some growls, the US House of Representatives' Subcommittee on Courts, the Internet, and Intellectual Property has a (live) webcast of the Oversight Hearing on "Copyright Office Views on Music Licensing Reform." Star of the Hearing: the Copyright Office's Marybeth Peters. Start: 10.00 AM EST / 16.00 CET.

Monday, June 20, 2005

Amazon DRM Labeling Falls Short

Apparently Amazon has started to label the new CDs that contain DRM: [COPY PROTECTED CD]. As noted by Joseph Hall on his Not Quite a Blog 2.0:
This is the first time I've ever seen a CD on Amazon listed as [COPY PROTECTED CD] (they're usually listed as ENHANCED or something else). It's the upcoming CD of Amici Forever, Defined. This is likely due to Amazon customers complaining about CDs not working in their devices after purchase.
The (mandatory) labeling of CDs/DVDs has been a subject of legislation and litigation on both sides of the Atlantic. Article 95(d) of the German Copyright Law, which states that content protected by technological measures should be clearly marked and indicate the properties of these measures. The proposed US Digital Media Consumers' Rights Act (DMCRA) would introduce a comparable provision.

Whether Amazon's trying to avoid liability for unplayable DRMed CDs and/or increasing the transparency for consumers so that those can make a more informed purchasing decision, the current labeling falls short. At least, in light of some of the French court case(s) on the subject. In Association CLCV / EMI France (2003) a French Court considered the "DRM label" on EMI CDs: "This CD contains a technical measure limiting the copying possibilities." That the CD was unplayable on certain car stereos was not indicated, and the court considered that EMI had been guilty of misleading the public vis-à-vis the scope of playability of the CD. The court mandated a new text for the label: "Attention, it cannot played on all devices or car stereos."

In another French court case, Françoise M. v. EMI France (2003, confirmed this year), the court considered: 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. The French court confirmed that Françoise M. was entitled to cancel the sale against the distributor (citing INDICARE Report, p. 59 - PDF). In other words, as outlined in this earlier post, "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)."

This is all European law, and I'm not sure which (US) provisions could be applicable on an online retailer like Amazon. Still, Amazon's [COPY PROTECTED CD] seems not specific enough to adequately inform consumers of the characteristics of the purchased good. And it is possibly too general a label not to be considered misleading.

Jot: Pinatas Hit with the Copyright Stick

The LA Times runs a story on copyrightholders, notably Disney, coming down on stores that sell pinatas resembling copyrighted (cartoon) characters: Winnie the Pooh, SpongeBob, Shrek, The Incredibles, Nemo, for example. An interesting insight in the pinata cottage industry, and how some try to avoid copyright infringement:
They know about the lawsuits against the sellers in Los Angeles and do not make character replicas, although they sometimes staple party plates of characters to their pinatas.

Thursday, June 16, 2005

MPAA's Glickman Rhetoric Redux

The full P2P-Communist speech of Motion Picture Association of America's President Dan Glickman is now available in webcast and word document. While he closes his speech with the "hope we can work together in a non-polarizing way", his rhetoric does exactly the opposite, of course:
[I]f you peruse the Internet, you can find advocates for a radical new movement that believes that all intellectual property should be commonly owned.

These people think that copyright laws are too constraining and that the Internet should be seen as a "global commons" with little regulation and no enforcement of intellectual property laws.
Who is he talking about? Who are these radicals that believe in public ownership of "all intellectual property"? Global commons or Creative Commons? For Glickman dissent apparently means radicalism. Even if those radicals actually don't believe in a total maximalisation of common ownership.

Glickman on the other hand has some great lessons for Elementary and Secondary school childeren on Intellectual Property rights:
"There is not much difference...or any difference in terms of legal protection between them and physical property rights." [from webcast]
Yeh, Intellectual Property = Physical Property --> Downloading = Theft

But let's close with some nice words from Glickman, The Great Uniter. He twists his own rhetoric and suggests that movies create communism communities, where technology has a harder time to win over the individual for a collective mindset (And, yeh, movies are apparently no technology.):
"Movies are a way that bring people together. Technology is a wonderful thing. But in many respects what we found is that technology not necessarily resolves in a sense of community. Sometimes it does and sometimes it doesn't." [from webcast]

Warner to ISPs: Content for Names

During a seminar on "online piracy" in the Netherlands last week a representative of Warner Home Entertainment made it clear that Internet Service Providers won't get movie content licensed, unless they provide the indentifying information of their customers on demand.

In a concluding panel discussion at the seminar a representative of one of the Dutch ISPs said they declined to hand over the IDs of its file-sharing customers to anti-piracy organisation BREIN to protect their privacy. Warner Home Video's Ruud Lamers responded that as long a the providers stick to this opinion they don't have to expect any content from the major players. That is, Warner does not want to be confronted with "anonymous" IP addresses in case of copyright enforcement, and puts the delivery of identifying information as a condition for licensing deals!

This threat came a week before BREIN took five ISPs to court today to obtain the identities behind the IP addresses of 42 file-shares. The ISPs requested a procedure on the merits instead of today's normal summary proceeding. Whatever will be decided, a final outcome is yet unclear, especially since the ISPs have counter-sued BREIN themselves. In the meantime apparently no movie content for them till they stop to protect their customers' privacy.
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Thru Solv [Dutch]

DMCA Copyright Censorship Mess-Up

In what looks like another attempt by a religous group to use copyright to shut down online criticism, the Watch Tower Bible and Tract Society (WTBTS) apparently pressured an US ISP to take down the Canadian website of a critical former Jehova's Witness. The site called contains various quotes from works published by WTBTS in an attempt to illustrate some of the failed phrophecies that organisation has made over the years. From's press release:
For example, one of the most recent additions to the collection is Watch Tower's 1932 claim that the "theory of gravity" is thoroughly in error and that electrical forces, instead, hold the planets in orbit and hold everything down on the earth's surface -- a remarkably ludicrous claim, even when compared to the limited scientific knowledge of the 1930s. Also included were quotations demonizing the Internet, the Media, the United Nations, and other non-Witness entities as ‘tools of the Devil.’
The WTBTS invoked Digital Millennium Copyright Act (DMCA) provisions against the site back in January, which led to some adjustions by and a legal correspondence, available in the site's News & Update section. Still, the site was taken offline by the ISP in May, apparently due to some administative mix-up: "Your e-mail leads me to suspect that the original [January-RL] notice was stored in the fax machine's memory and mistaken for new, since something similar has happened once before," says the web host's attorney.

What's striking to me about this story is that the ISP apparently did not take the time to check the validity of the notice or inform (in advance) that the website would be taken down. It saw DMCA on an outdated fax, feared possible vicarious liability and steered for the DMCA's safe harbour provisions instead of putting up a fight for its customer. A choice that can hardly be blamed, since possible litigation and liability costs outweigh the displeasement of one customer. It's the DMCA's notice & take down system that brings a privatized shoot first - check later situation, in which you have to pay up for an ISP that's not so trigger happy.

This case has some relation to the copyright censorship that was used by the Church of Scientology. This sci-fi sect has been particularly aggressive trying to prevent the spread of their copyrighted works and connected criticism. In The Netherlands Scientology's practices have been part of a long legal battle, in which its attempts to get the so-called Fishman Affidavit removed from Dutch writer's Karin Spaink site have failed. This summer the Dutch Supreme Court will likely put Scientology's legal claims next to where their reli-fiction belongs: in the trash can.

Wednesday, June 15, 2005

Macrovision DMCA Lawsuit Targets DVD Copying Products

Macrovision announced today that it has filed a Digital Millennium Copyright Act (DMCA) lawsuit against Sima and Interburn. According to Macrovision's press release:
[Their] infringing products allow users to make new unlicensed DVD disc copies by stripping Macrovision's patented ACP technology. The suit charges that Sima and Interburn therefore violate both Macrovision's patents and the DMCA, which prohibits circumvention of copy protection mechanisms.
The image above is of Sima's C-2, one of units products targeted in the lawsuit. Sima writes on its site that these "units allow you to preserve your family memories to DVD and enhance their video image at the same time", and has a notice on its site:
Use of this product for unauthorized duplication of copyrighted material from DVD, VHS or other media is prohibited under federal copyright laws unless the copy qualifies as a fair use under the Copyright Laws.
Circumvention of copy protection mechanism for fair use is not allowed under the DMCA. (The DMCRA seeks to change this.) If the products would actually rip Macrovision's
Analog Copy Protection scheme, and the press release claims that they "have very limited commercial uses other than to circumvent Macrovision's copy protection technology [...]", another DVD X Copy like ruling could follow. DVD X Copy also happens to be the main product Interburn is selling on its site. A site that stands on the blacklist of the manufacturer of DVD X Copy for allegedly
"selling licenses that either CANNOT be activated or are cracked versions that DO NOT WORK properly and/or that contain spyware. Product purchased from these sites will be deactivated and are not eligible for support or updates and should be returned for a refund." [bold in original-RL]
Nice. But I guess those who buy their DVD ripping software from a well-used international DMCA (lawsuit) bypass called the internet, can't be bothered if they download their copying software from a non-US site.
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Later Be sure to read Ernest Miller's post on the lawsuit, explaining something I just very slightly touched upon: "This isn't about digital anti-circumvention (the most commonly invoked), but analog anti-circumvention." As a backgound he provides article 1201(k) of the DMCA, which sees on "Certain Analog Devices and Certain Technological Measures" and, according to Miller, "makes it quite clear that Congress considers this technology copy protection technology, and because it is mandated for VCRs, makes arguing around it quite difficult."
Also interesting is his follw-up to the post: Mark Cuban Has Questions About the Macrovision DMCA Lawsuit.

MPAA President Sees Communist Connection with P2P

The President of the Motion Picture Association of America, Dan Glickman, spreads more of the same rhetoric at the eve of the MGM v. Grokster decision by the US Supreme Court. In a speech yesterday he suggested a link between P2P and communism, heated up the cold war and warned for a decline of freedom.
"Shall we keep in place legal protections that promote the free market, or shall we tear down those protections in such a way as to allow the black market to prosper and dominate?" he asked. "If we have learned anything over the past 50 years with the collapse of communism and the triumph of free-market capitalism, we have learned that abusing private property rights actually leads to less creativity, less technological development and less freedom."
Yeh, black-white, capitalism-communism, control-freedom, left-right, up-down. More constructive polarization for a better digital age. Will somebody ever start the fire to melt down the copyright poles?

Swiss Copyright Reform Eyes Europe

Switzerland is working on a new copyright law, with a first draft expected at the beginning of 2006. One of the key issues will be the implementation of anti-circumvention legislation in accordance to Switzerland's obligations under the World Intellectual Property Treaty. Apparently the WIPO's provisions provide "no consensus on "how consumers are to be protected from the misuse of such control possibilities." The draft is now to be designed closer to European law", says this Heise article.

I'm not sure what that means. Are the Swiss searching for more consumer protection towards DRMs, and do they expect to find it in the European Copyright Directive (EUCD)? That is not the most enlightening example to follow. When it cones to protection of technology (article 6 EUCD) vs. the protection of consumer interests (article 5 EUCD) the EUCD does not live up to its statement in Recital 31: "a fair balance of rights and interests [...] between the different categories of rightsholders and users of protected subject-matter must be safeguarded." The EUCD is a rightholders centric piece of legislation, and unless the Swiss take some of the European consumer protection law into consideration, eyeing European law does not bring more protection against 'misuse of such control possibilities".

More noteworthy developments:

-There has been considerable opposition against the extension of levies beyond blanck CD's/DVD's (to, for example, computers). This extension might now be stopped.

-Under current copyright law downloading of copyrighted material is considered to be an act of private copying, while the unauthorized uploading of copyrighted material is deemed illegal. This is likely to be codified in future legislation.

Jot: Jack Valenti Finally Turns Into Concrete

Motion Picture Association of America's headquarters to be named The Jack Valenti Building.

[Link to MS Word press release.]

Tuesday, June 14, 2005

Norway: From Playback to Setback Under EUCD Implementation

Over at INDICARE a new article has been published on Norwegian's efforts to get its copyright laws in line with the European Copyright Directive (EUCD), especially in relation to technological protection measures: Norwegian implementation of the EUCD article 6 by Thomas Rieber-Mohn. The author reviews the recent White Paper of the Ministry of Culture and Church Affairs which contains various amendments to Norwegian's Copyright Act [unofficial english translation].

I think the article is a bit hard to follow at times, but it lifts out some interesting aspects. They're summarized in the article's conclusion:
Further, the ban [on circumvention of technological protection measures-RL] shall not apply to acts of circumvention that are needed in order to enjoy the work within the private sphere on so-called "relevant playback equipment". The proposed "interface" [to copyright exceptions-RL] obliges right holders to respect the relevant copyright exceptions while shaping their technological measures. If they do not do so, the beneficiary can file a complaint to a specialist tribunal empowered with the authority to - ultimately - grant a permission to circumvent.
On "relevant playback equipment": consumers may circumvent DRMs on, for example, CDs, if these DRMs prevent the enjoyment in the private sphere of the CD. The interesting part is that the White Paper restricts this limited circumvention to "relevant playback" equipment. This means that DRMs on a CD may be circumvented to "enjoy in the private sphere" on a CD player, not for conversion to MP3 players. I don't know the background to this lock-in to relevant playback equipment, but the reasoning might be that a subsequent ripping of CDs to MP3 player or computer, after circumventing their DRMs, puts the music files up for grabs through P2P networks. The prevention of this kind of "unsecured" platform-shifting has been part of the strategy to prevent the dissemination of copyrighted material. Rightly so, I think, the Norwegian parliament has criticized the proposal in its first hearing, and it is probable that conversion to MP3 (players) will be part of a revised, future proposal.

Interesting is also that for on-demand-services, such as online music stores, the determination of what is relevant playback equipment is governed by the contract in place between the service (e.g. iTunes Music Store) and the client. Contractual freedom thus overrides limited circumvention by the consumer. I'm only pondering here, but would this mean that consumers can be tied by contractual terms to a specific playback platform? Proprietary songs for proprietary players, where DRM does not already pave a path to this direction?

On "interface towards copyright exceptions": this interface refers to the requirement under article 6(4) EUCD for member states to take measures that rightsholders provide users with the possibility to benefit from certain copyright exemptions (private copying being not one of them): e.g. for teaching, archiving, library use. As stated in the article, article 6(4) does not apply to online on-demand-services if exemptions are excluded by contract. The White Paper proposes a failsafe mechanism in case the rightsholder does not provide the possibility to enjoy copyright exemptions: the "beneficiary" can make a request to a committee appointed by the Ministry that can set a time limit for the rightholder to comply, after which the committee can allow the benificiary to circumvent the used technological protection measures. This "failsafe" is exemplary for the change of (legal) position of rightholders and users in the enforcement of (copy)rights under technological protection measures. Now it is the user that has to actively seek to secure its interests, confronted with a technological barrier in first and a procedural barrier in second instance. The article says that for consumers this procedural failsafe is an "effective means to enforce her copyright exception privileges" and that it is important that "it lies with the consumer to trigger this right." While the Norwegian proposal seeks for a balance between rightholders and user rights, one might question the "effectiveness" and the "importance" of the proposal. The existing fulfillment of user interests is prevented by the implementation of DRMs, and users are forced to negotiate with rightholders to secure their interests, having a possibly time-consuming procedure with an uncertian outcome as a failsafe. This makes the path of enfocement of interests a long and winding road.

Friday, June 10, 2005

Sweden: Anti-Piracy Group Broke Data Protection Laws

The Swedish Data Ispection Board has ruled that the anti-piracy group Antipiratbyrån has broken the personal data act by recording the IP addresses of file-sharers, their alias, the file name and the server through which the connection was established. The Data Inspection Board argued that if an IP address can be linked to an individual user it is should be classed as personal information and thus be covered by the personal data act.

Antipiratbyrån monitored and tracked the IP address in their effort to crack down on the file-sharing of copyrighted material through P2P networks. This crack down can hardly be called a great success for the anti-piracy group, especially from a public relations perspective. Starting with a raid by Antipiratbyrån on an ISP Bahnhof back in March the organisation has been under constant scrutiny and legal complaints. Its email correspondence with American counterparts was published on the internet, it was discovered that an infiltrator linked to the group might have planted evidence on the ISP's server, before thousands of Swedes reported the group to the Data Inspection Board. It is not yet clear if under today's ruling Antipiratbyrån's collection could be classed as a criminal offence. For some time now the group has been giving the IP addresses to the police directly, instead of storing them themselves for later prosecution.

The Swedish ruling stands in contrast with a decision by the French Data Protection Authority (CNIL) last April. CNIL decided that the software lobbying organisation SELL was allowed to send "piracy prevention messages" to file-sharers and collect their IP addresses in databases. As outlined in this earlier post 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]
The Swedish Data Inspection Board has now expressed another opinion. However, it made clear that "an organisation may apply for exemption from the personal data act." Antipiratbyrån is expected to have their application for examination with the Data Inspection Board on Monday. So, one of Europe's liveliest P2P stories continues, and, compared to other countries, is just to start
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Related Austrian Court: IP Address = Telephone Number = No Privacy Protection

Thursday, June 09, 2005

Pooh & Pokemon P2P Porn Pimps

No mascot, just lame jokes for the latest round of propaganda. Parental anti-P2P propaganda from Childnet International, which closely cooperated with the International Federation of the Phonographic Industry (IFPI) for their Young People, Music and the Internet - a guide for parents about P2P, file-sharing and downloading. Childnet seeks to inform parents of the potential (legal) risks of P2P use by their children trough a brochure, and while trying to pose objective, spreads more fear than balanced facts: viruses, open doors, spyware, chat room lurkers, zombie pc's spreading personal medical information and of course porn, porn, porn. The threats from P2P are numerous and imminent and even that the most trusted of child's friends are into the scheme: "Even files named “Winnie the Pooh” or “Pokemon” have been found to contain pornography."
After such a revelation what to say of arguable claims like "Downloading music without permission from p2p is illegal in most countries"? I just can't get that honey drivrn bear out of my head.
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CoCo: More Kids Propaganda on World Intellectual Property Day
CoCo: French Mascot Joins the Propaganda Club
CoCo: Dutch Propaganda Pigs Hit Schools
CoCo: Time for a Copy Cat
CoCo: Politician Demands Propaganda Guide Pulled

Copyrighting Race & Gender

Copyfight refers to a post by Professor Michael Madison on a "case in which a stage production of Grease was halted by the rights organization because the female cast was going to play female students in an all-girls school putting on a performance of Grease." The stage production reacted with Grease and Desist, a musical answer to the legal threat. It reminded me if a snip in an article on cross-casting that had a less amusing outcome:
Cross-casting along gender and racial lines has been used in the theater for years, starting with productions of Shakespeare. On Broadway now, Denzel Washington is playing Brutus in "Julius Caesar" and James Earl Jones and Leslie Uggams headline "On Golden Pond." In 2001, a film version of "Hamlet" set in the post-Civil War South included a black Polonius played by Roscoe Lee Browne.

Such casting does not always go smoothly. In Glenelg, Md., last month, a high school production of "Huckleberry Finn" had a black Huck Finn and a white Jim, but the copyright holder objected to the cross-casting and the performances were edited out of a C-SPAN talent show.

Wednesday, June 08, 2005

Lack of P2P Control Threat to Asian Governments

The deputy director-general of WIPO's regional Asian office, Geoffrey Yu, has a hard time with the increasing internet access and predict governments will have so too:
"It’s only a matter of time that illegal downloading becomes the longer-term threat to the governments in Asia,"


"Soon, we won’t be having large scale commercial operators pirating music and movies in large concentrated warehouses but we'll see millions of individuals doing the same in their own homes. That's actually a bigger threat because it's harder to control."
Set aside the questionable equation of large scale commercial pircay and individual file-sharing, one can wonder about the suggestiveness of this "hard-to-control" threat (to governements even). Should the threat be countered by imposing controls? Should increased internet access come with increased control over that access? A tuned-down internet for the masses that are getting a taste of the "forbidden fruits" of file-sharing? I guess Yu is only expressing his frustration, but coming from a represenative of a supra-national IP body this kind of unsubtle talk is something to watch. Even if it isn't that surprising.

Chinese Internet Registration Flow Chart

This is a picture of the (interactive) flow chart the Chinese Ministry of Information Industry has set up to register all China-based internet sites. Danwei provides clause 57 of the Telecommunications Regulations to which the terms for registration refer. Unsurprising the clause is more than a little broad.

Tuesday, June 07, 2005

CDT: Stick & Carrot for the Digital Consumer

The US civil liberties and public policy organization The Center for Democracy and Technology (CDT) has released a policy paper today called Protecting Copyright and Internet Values [PDF]. The CDT believes that there is a path forward in the polarized copyright debate and argues that three components are essential to come to a satisfactory balance for all stakeholders:
  • Punish the bad actors: setting examples to discourage infringement
  • Digital Rights Management (DRM): a light, consumer friendly version
  • Copyright education: "Reaching young consumers is particularly important"
The CDT calls this the "carrot-and-stick approach". A method that brings the image of a donkey to mind, but the CDT is actually talking about consumers. Some organisations and individuals with more "unbalanced" views about the internet and copyright might say this paper treats consumers as donkeys and consumers must be donkeys to follow the policy it sets forth. I wouldn't go that far, though I think the CDT offers more stick than carrot.

The stick of punishment is vastly gripped by the CDT. It is clear about its position on the RIAA and MPAA lawsuits against individual file-sharers and p2p networks like Grokster: they are bad actors and the first should be punished for infringement and the second for inducing this infringement. It calls the lawsuits "a dinner‐table conversation for families all over the world". It must realize that those families also dwell in the sensationalistic stories of the RIAA/MPAA suing dead people and prosecuting grandma's and children. To prevent "a consumer backlash" the CDT stresses the importance of due process and the acceptance of "fair settlements" ($4000) by copyrightholders. It offers no solutions for the current cost of litigation, which makes "due process" a hollow phrase for individuals and makes $4000 dollars look like a fair settlement indeed.

Digital Rights Management is hailed as providing price differentiation and extended consumer choices. To achieve this the CDT argues that "content owners are generally within their rights to put out restrictive DRM. In a functioning market, DRM that fails to provide an attractive bundle of rights at an attractive price will fail." This promise has accompanied DRM from the start, but until now consumers are more than often confronted with several issues pointed out by the CDT: privacy, transparency, informed purchasing decisions, and something it calls "First Amendment uses of content". This refers to the fair uses of (online) review and commentary, political ads and scholarly use. With this phrasing the CDT seems to want to avoid the inclusion of the fair use of private copying. It is mentioned nowhere in the paper, while it is a hot consumer issue related to DRM (see e.g. DMCRA deliberations). Maybe it is too much to ask from a small, general policy paper like the CDT's, but a balance for all stakeholders asks for more than (rightfully) raising (some) consumer interests, while taking the premise that restrictive DRM is okey since the market will fix it.

The paper breaths a fear of governmental intervention, e.g. ISP blocking and filtering mandates and technological mandates. These surely are worrisome, and the CDT has used its stick to fight them in the past (e.g. Pennsylvania child porn case). However, it seems to envision that the market will provide consumers with a juicy carrot if mostly left to itself. That can do, if at the same time consumer interests are safeguarded by both copyright and consumer protection laws and technology. Till that time it's hard to blame some unbalanced people for not eating the carrot and balking at the stick.
- - -
Later Ernest Miller at The Importance Of... analyses the CDT paper in more depth and also thinks it offers more stick than carrot. He notes that the paper doesn't mention the Digital Millenium Copyright Act (DMCA) once. That's indeed a (conscious?) omission, which is more striking than the lack of reference to the Digital Media Consumers' Rights Act (DMCRA) I pointed to. The last would update the DMCA to to treat users not just like mere consumers but more like, what Miller calls, "citizen-creators" (implementing a fair use circumvention right).

Miller also higlights a sentence that seems more clear now: "Other legal tools, such as consumer protection laws, should be used aggressively against those who trick others into violating copyright law." That is, to my reading, consumer protection law should be used to battle copyright infringement, not so much to protect consumer interests. This stand may explain why consumer protection law is not applied to what it is relly ment for: protection against possible (DRM) intrusion in consumer interests related to privacy, transparency and (sale) contracts, among others. I'm not that familiar with the US situation, but Europe has a fairly fragmented collection of consumer protection law that could be applicable on DRM issues. (For a short overview I shamelessly plug INDICARE'S Report + Update, specifically chapter 3 [PDFs]).

In the comments to Miller's post, Seth Finkelstein explains why CDT's treatment of the interests of consumers/creator-citizens is so shallow:
It's important to understand that CDT is basically a business-oriented policy organization, mostly telecomm. Not that that's a bad thing per se. But that's what they are.

The report is "balanced", from their perspective - it's balanced between the interests of the business of big copyright-owners, and in the interests of the business of big tech/bandwidth companies. These are somewhat in conflict, and CDT outlines the issues.

Security Researcher Guillermito Fined in Civil Case

Today the Harvard based French security researcher Guillame Tena, aka Guillermito, was sentenced to pay a fine of 10 300 euros in damages and interests to Tegam in a civil case, according to his own blog [French]. Tegam had sought 9000 000 euros in damages. It looks like he is going to appeal the decision.

In March Guillame Tena was fined a suspended fine of 5000 euros for counterfeiting in a criminal case. He had used a pirated version of Tegam's Viguard anti-virus software for his research, in which he showed several vulnerabilities in the software. Tegam used questionable (scare) tactics against Tena in the run up to the criminal and civil processes, and one can question if the claim of counterfeiting was actually brought to effectively prevent the (re)publication of his research. In the meantime Tegam came in a state of liquidation, while the rights on Viguard were taken over by another company [French link]. Details on the latest ruling will probably emerge in the coming days. For background on the Guillermito case, see this earlier post (especially the update): Security Researcher Condemned for Publication Vulnerability.

Jot: Brazil Signs Bill to Suspend Drug Patents

In its effort to get the drugs used to battle AIDS as widely and cheaply distributed
Brazil's lower house of government on Wednesday approved a bill that would suspend patents on all antiretroviral drugs and allow Brazilian companies to produce generic versions of the drugs if the Brazilian government cannot negotiate price reductions or licensing agreements with patent-holding pharmaceutical companies.
Thru Karl Jonsson's Weblog

Crazy Horse Copyright Breeds Buffalo

For those of you who are deluded by the idea that strict copyright enforcement restricts creativity, read this story about a saddle maker who worked six weeks on a life-sized bison art project with an image of Chief Crazy Horse on it for an old-west fest, only to find both the name and image to be copyrighted when he wanted to put it up for auction. Instead of painting over the image he crossed back home through the US, rush-ordered "an emergency-replacement fiberglass buffalo" and created a second piece.

Monday, June 06, 2005

Jot: British Minister Seeks Copyright Extension

Britain's new Minister for Creative Industries and Tourism, James Purnell, apparently plans to walk the US trail on copyright protection of popular music and is likely to announce the plans on an extension of its length next week :
"Finding talent and artists is expensive," Mr Purnell said. "There is a view that long-term earners are needed so that the record companies can plough money back into unearthing talent."

"Bands like Coldplay will make enough money for their company to discover around 50 or 100 bands."

Copyrighting Traditional Culture

The eight session of WIPO's Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC) opens today at Geneva. High on the agenda is a possible extension of copyright protections on traditional culture, mostly pushed by developing countries. This short article takes a look at the issues and notes that
One solution proposed by industrialized nations is to divide rights into two types: "personal rights," which preserve respect for traditional culture, and "asset rights," which prevent valued cultural icons from commercial misuse.

Jot: Online Shopping Exploitation

New study reveals large majority Americans lack knowledge on the working of privacy policies and price differentation of online shopping. So, what's new?

File-Sharing Lawsuits Hit Swedes

The Swedish English language paper The Local reports that the Swedish anti-piracy organisation Antipiratbyrån has given the IP addresses of 200 file-sharers to the police for breaking copyright laws. Instead of collecting the IP addresses in its own database Antipiratbyrån now hands them over directly to the authorities, while the Swedish Data Protection Board decides if IP addresses should be considered personal data and collecting them would bring a violation of data protection laws.

In April an Austrian court decided that dynamic IP address should be considered the equivalent of telephone numbers, which as "master data" "are not subject to privacy of telecommunications, but rather only to data protection." This would allow identifying information connected to the IP addresses be revealed in criminal court proceedings over copyright infringement.

These Swedish/Austrian questions on the protection of IP addresses might be covered in The Netherlands, where the anti-piracy organisation BREIN would have been in court today for a civil procedure to obtain the identities behind the IP addresses of 42 file-sharers from five Dutch ISPs. However, the ISPs requested a procedure on the merits instead of a normal summary proceeding, prolonging the trial date. In the wake of the Dutch lawsuit a German court ruled that access providers are not obliged to hand over customer data when there is a suspicion of copyright infringement. The lawyer of the five Dutch ISPs thinks the decision will strengthen the legal postion of the ISPs.
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Related Sweden: Threat Prohibition Copyright Protection Meager Trade Off for Users

Jot: US Supreme Court Rejects Lexmark's (DMCA) Petition

From the press release:
The United States Supreme Court has rejected Lexmark's petition for certiorari, upholding Static Control's position against the Digital Millennium Copyright Act (DMCA) and copyright issues raised by Lexmark in connection with Static Control's sale of Lexmark compatible chips.

The latest ruling marks the fifth straight victory for North Carolina-based Static Control Components Inc. and the end of Lexmark's attempts to use the DMCA to create a monopoly in aftermarket supplies. Static Control now offers the only Lexmark compatible chips that have been cleared by the courts under the DMCA or copyright.
Update: Furdlog's Frank Field wondered why the Lexmark v. Static Control case was not on today's US Supreme Court's list and thinks he's losing it. He isn't, but the answer is bewildering. AP reports that
"Due to an error in calculating the filing deadline by the law firm responsible for filing the Petition for Certiorari, the petition was filed late and therefore rejected," Lexmark said in a statement. " Accordingly, the petition was never docketed.
Wow, that's so sloppy, it's beyond believe. And Lexmark is the one losing it.

Friday, June 03, 2005

Back Up: INDICARE DRM Publication Wave

Back from a ten day Eastern internet black out, I've got a lot of catching up to do. For starters, let me highlight the recent publication of the First Supplement [PDF] to INDICARE's State of the Art Report on Digital rights Management and Consumer Acceptability. It provides the developments since the Report's publication in December 2004:
Topics that this publication reports about are, among others, the authorized domain, recent studies concerning the position of consumers with disabilities and DRMs, developing countries, and international aspects of DRM in general. The supplement describes recent legal initiatives in Norway, Germany and Belgium. It also highlights some important consultation procedures and initiatives concerning DRMs that were initialised by the European Consumer Law Group (ECLG), The European Consumer Organisation (BEUC) and the Transatlantic Consumer Dialogue (TACD). An update on recent technical developments in the field of copy protection for different media is given. Finally, the role of DRM in the information economy is discussed and if DRM, from the business perspective, are primarily means of copy protection or business model enablers. New DRM-based business models are introduced that are based on viral marketing, peer-to-peer networks or subscription and rental services. And then there are alternative business models, new DRM-free content offerings that are reported about in this supplement.
Also, put online last Monday, a fresh flow of articles at the INDICARE site [PDF]:

Digital music usage and DRM. Results from a representative consumer survey
by Nicole Dufft

The use of digital rights management in document supply
by Andrew Braid

National libraries, preservation and digital rights management. INDICARE-interview
by Tobias Steinke

Digital rights management and mass amateurization
by Dan Hunter

Consumer acceptance of digital rights management systems
by Marc Fetscherin

Real money for virtual items: A case for DRM?
by Danny Vogeley

Preparing for the Iditarod of the digital world
by Natali Helberger

INDICARE consumer survey on digital music published
by Nicole Dufft

A2K: Access to Knowledge – Make it happen
by Natali Helberger