Dale's Comment: Listening to this was my first introduction to Professor Moglen's ideas. I don't exactly know what to make of this speech. With the flair of an elequoent Baptist preacher he advocates on behalf of the free software movement. The speech has many interesting and compelling points.
But, my goodness, this substance of his speech seems to be, Open Source – all good, Closed Source – all bad, all the time. To my mind there is a place for both. Contrary to the underlying sentiment of this talk, I believe capitalism and software-for-profit is critical to global development and advancement. Open Source software is also, obviously, very beneficial to the world. Both have their place and importance.
Perhaps I haven't had enough exposure to Professor Mogeln yet. But while interesting, I found his talk, effectively dissing closed source software and its creators, eerily discomforting.
What's new to me from this piece is that Judge John Coughenour granted a motion request to subpoena e-mail providers Yahoo! and Google in search of Viodentia's identity. If that yields a relevant IP address, Microsoft is permitted to issue subpoenas to the ISP that operates or issued that IP address in order to determine the identity of Viodentia. Engadget says Viodentia claims to live outside of the U.S. If this is true, none of these subpoenas should amount to anything.
Text of Report
The UK think-tank, Institute for Public Policy Research (ippr) has released a study, “Public Innovation: Intellectual Property in a Digital Age” where, among many other things, it recommends that U.K. citizens should have the right to copy their own content for their own personal use – something currently prohibited in the U.K. It concludes:
…in seeking to limit pirate activity, emphasis should be on commercial harm to the rights-holder, rather than the act of sharing itself. As such, we recommend UK law be amended to include a private right to copy. Again, this will serve to increase legitimacy of the IP regime by legalizing actions that thousands of individuals already undertake without significant harm to the rights-holder.
The BPI had come to the same conclusion earlier this year. As it stands now millions of U.K. citizens are breaking the law when copying their purchased DVDs or CDs onto their computers and iPods or creating compilation tapes of their own music. The existing law is silly. Kay Withers, one of the report’s authors, said:
The idea of all-rights reserved doesn’t make sense for the digital era and it doesn’t make sense to have a law that everyone breaks. To give the IP regime legitimacy it must command public respect.
In the U.S. personal copying for private use is enshrined in law as part of their fair use doctrine. In exchange for paying levies on blank media, the private copying exemption contained in section 80(1) of the Copyright Act makes it legal for Canadians to reproduce musical works for private use.
As Michael Geist and others have recommended, Canada and Britain should explicitly make copying of purchased content of any type (audio, video, text) for private use legal – without a media levy and without penalties for circumventing DRM/TPMs to do so. Any click wrap/shrink wrap or other end-user license terms to the contrary should be unenforcible.
In this interesting piece, Princeton Professor, Ed Fulton does an admirable job of outlining both sides of the ‘Net Neutrality debate and argues that, perhaps, leaving well-enough alone (legislation-wise), for the time being, may be the best means of meeting the objectives of ‘net neutrality advocates.
Text of U.S.S.C. Grokster Decision I link to several “one year after” stories. The essence of these stories, as anyone who has paid attention over the last year knows, is that, while the law suits may continue, and the content industry legal tactics may be changing, Internet-based file sharing not only continues but has increased.
Dale’s Comment: As has been the pattern of the content industry for a century, fighting new technologies may stem the inevitable tide for awhile, but in the end, the content industry will have to adapt its business models to the Internet era. As with all the technologies they opposed in the past (player pianos, FM radio, VCRs, cassette tapes and more), the content industry will, of necessity, embrace consumer-friendly and fair Internet music distribution business models and, despite themselves, will likely be even more profitable when they do. The question is, how long will they persist with this futile battle.
Text of Committee Report A British Parliamentary Committee is recommending regulations that require digital content packaging/websites to clearly inform consumers as to exactly what they can and cannot do with digital content “protected” by DRM. At present, details of the DRM restrictions applied to digital content are typically buried deep within legalese-laden license agreements that are unpenetrable by the average consumer.
Sources:ars technica | BBC | P2PNet | The Register | Silicon.com | PC Pro | vnunet.com | ZDNet | Cathy Kirkman Dale’s Comment: It has been my belief from the day iTunes launched, that its success has been largely due to the fact that consumers have no idea that the songs they purchase on iTunes will not be playable on competitive devices they buy in the future, that they cannot legally sell their music, give it away, or will their music library (purchased for thousands of dollars) to their heirs when they die. A requirement that a company stamp a warning label such as “Not Playable on Your iPod” on the back of locked-down CDs would go a long way towards ensuring content owners think twice before imposing restrictions that are clearly counter to the reasonable expectations of their customers.
In this very interesting piece, Professor David Vaver discusses the interesting history of copyright law and argues that copyright lasts too long, is too oppressive, too restrictive and that publishers should not only have copyrights, but duties as well:
Publishers owed legal duties of fair price and free access when the copyright term was only 28 years long, when their only exploitation right was to prevent outright copying of all or most of a work. They then had no power to stop translations, fair abridgments, even stage adaptations or performances. The copyright laws no longer impose the same legal obligations on publishers that they faced in the 18th and 19th centuries. But now that publishers have got copyright terms that run four or five times longer, now that they can control almost every way a work can be exploited, perhaps they should look into their souls and ask whether they do not continue to owe the public, morally at least, those same duties of fair price, fair access and fair contract.
Source:Slaw: Professor David Vaver Dale’s Comment: I had the pleasure of studying International Law with Professor Vaver when he was a professor at Osgoode Hall Law School. He is now Professor of intellectual property & and information technology law, University of Oxford.
Howard Knopf, who acted against CRIA in the recent Canadian file sharing litigation, has written a very good summary of CRIA’s current situation in the context of the contemporary Canadian political environment.
The highly charged populist uprising over who owns the Internet lost its first significant battle when a U.S. House of Representatives committee voted down legislation that would block phone companies from establishing an Internet toll system for companies such as Google and Skype. Instead, the committee adopted compromise provisions, authorizing the FCC to investigate violations of network neutrality after the fact and levy fines of up to $500,000 on a case-by-case basis. Sources:Red Herring | ars technica | PC Magazine | InfoWorld | ZDNet | CNet | TMC Net | CIO | Beta News | SF Chronicle | Michael Geist on Canadian “Net Neutrality” Telcom Reform Dale’s Comment: Few things, it seems to me, are more important to the continued growth of the Internet than ‘net neutrality.
Net neutrality is the concept that Internet users should have unfettered access to all the Internet has to offer, and that network operators should be prohibited from blocking or degrading signals or content traversing their networks. Without ‘net neutrality, carriers such as AT&T could charge companies like Skype, Vonage and Google (or their customers) additional tiered fees to guarantee their services won’t be eroded or blocked when provided to end-user customers like you.
Because the fees charged by telcos such as AT&T, Verizon and Quest for data carriage are not enough to cover their losses from declining voice carriage rates, they are now floating the idea that tiered Internet access fees should be charged for access to specialized Internet services. This is absurd! Consumers already pay higher fees for the bandwidth needed to access broadband-intensive services. Charging additional tiered fees is simply double-dipping.
One would have thought that the Abermoth scandle-ridden Republican-controlled Senate would be less-likely to pander to special interest lobbyists through this mid-term election cycle. But in voting this bill down, they’ve done just that.
What Might Conservative Copyright Look Like? April 2, 2006 With the new Harper/Conservative Parliamentary session starting in Canada this week, Michael suggests that the new conservative government approach to copyright reform should include the following three elements: (i) enshrined fair dealing/use rights should be illustrative (as in the U.S.) rather than a comprehensive list; (ii) eliminate the stricture of Crown copyrights; and (iii) legal protection for digital locks (ie: technological protection measures (TPMs) and digital rights management (DRM) schemes) should be approached with trepidation to guard against how TPMs are frequently used to limit interoperability of new technologies, impede new market entrants, and foreclose competition”.
Canada should adopt legislation similar to that currently under consideration in France, whereby consumers of legally purchased content would be explicitly permitted to: (i) circumvent any TPM to make copies of purchased content interoperable with any media player; and (ii) convert digital content into alternative emerging formats for personal use and playback (eg: convert CDs, to MP3s). [See related articles posted on March 21, 2006 and March 22, 2006]
Content providers should be legally required to work with others seeking interoperability to ensure that all content can be played-back using competitive products.
The first-sale doctrine should apply to all digital content marketed to consumers so that such consumers will have the unfettered right to transfer/give-away/sell their legal copy of content (without retaining copies) as can be done with books, records, CDs, DVDs, video games etc. Canadian and U.S. copyright law should explicitly pre-empt any EULA provisions attempting to override such first-sale rights.
Once these measures, the very measures the music industry is fighting, are universally adopted, I believe the first serious dent into online piracy will be made. Treat honest people fairly and they will purchase music online in droves. Treat them like criminals and, well, you know.
A law being proposed in France would force companies like Apple to open up content downloaded from, say, the iTunes Music Store to be used on non-Apple devices. If they don’t comply, customers would be allowed to break the DRM.
This annual report is a comprehensive overview of competition in the cable, satellite, OTA, wireless and related markets. If you want a solid overview of the regulatory environment for these industries, this report is a terrific place to start.
The Australian House of Reps Standing Committee on Legal and Constitutional Affairs released its report on the Review of Technological Protection Measures ("TPM") Exceptions. The report includes 37 recommendations with a long list of protections including exceptions for fair dealing, education, and libraries.
The Copyright Board of Canada last week released its proposed tariff for 2007 for the private copying levy. The numbers remain unchanged. Geist argues for either ensuring the levy covers all private copying or the levy should be dropped.
This year may be the year that gadget makers finally conquer the living room, replacing DVD players, VCRs and personal video recorders with all-in-one media devices that serve up HDTV, pre-recorded movies and digital music. If so, it will likely also be the year that people learn the meaning of DRM, an acronym the industry says stands for digital rights management, but critics say should stand for digital restrictions mongering.
In this report the EFF describes why it believes that the third triennial DMCA rulemaking, currently underway before the U.S. Copyright Office, does not effectively address the concerns of American digital media consumers. Source:EFF
How Apple, Microsoft, and Sony cash in on piracy prevention by using it as an anti-competitive, anti-consumer means to lock customers in. All the while, a threat of legal sanctions hang over anyone wanting to break, or anyone willing to assist them in breaking, those locks to move their ‘purchased’ content to a competitive platform or service. Source:Slate.com
PDF: RIAA v. The People It’s been two years since the RIAA started suing music fans who share songs online. Thousands of Americans have been hit by lawsuits, but both peer-to-peer (P2P) file sharing and the litigation continue unabated.