Dale Dietrich
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Category — Policy Analysis

Eben Moglen’s Plone Keynote – ‘Software and Community’

Categories: FYIOpen SourcePolicy Analysis

Below is a Youtube video of Eben Moglen's keynote speech at the 2006 Plone conference in Seattle (Oct 25-27).  Professor Mogeln is a professor of law and history of law at Columbia University, serves pro bono as General Counsel for the Free Software Foundation, and is the Chairman of Software Freedom Law Center.

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.

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Law Review Article – Microsoft’s War Waged with FairUse4WM

Categories: DRM Arms RaceFYIPolicy Analysis

Text of Microsoft v. Viodentia Complaint (Sept 22, 2006)
Engadget replicates an article from the Columbia Science and Technology Law Review entitled "Microsoft's War Waged with FairUse4WM". It provides a good history of DRM circumvention, Microsoft's suit and the DMCA.

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.

Soucrces: Engadget

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ippr Report Recommends U.K. Copyright Law Include a Private Copy Right

Categories: CopyrightDMCA-like LawsDRM AnalysisDRM Restricting UseFair Use/DealingInternational Legal ReformPolicy Analysis

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.

Sources: BBC | Engadget | Hexus | Pocket-lint | CIO | Times Online | UPI | Xinhau | Daily Tech | TechNewsWorld | TechWeb | Silicon.com | Guardian Unlimited | Variety | P2PNet | P2PNet | PC Pro | Playfuls | Washington Times

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Michael Geist Concludes 30 Days of DRM

Categories: Artists Against DRMBig Media v InternetCopyrightDMCA-like LawsDRM & ResearchDRM AnalysisDRM Arms RaceDRM as Market LockDRM CircumventionDRM Restricting UseFair Use/DealingIntrusive TPMs - RootkitsLegal ReformLobbyingPiracyPolicy Analysis

Version of 30 Days of DRM
Canadian Copyright reform is in the air. In anticipation of possible legislative action this fall, Michael Geist’s 30 day series of daily articles “30 Days of DRM” has come to an end. While he ultimately argues, as I do, that it would be preferable NOT to adopt
DMCA-like anti-circumvention legislation in Canada, the Conservative government may succumb to the copyright lobby. These articles, which are quite good, propose limitations that should be included in any such Canadian DMCA-like legislation to fairly protect Canadian consumers and to guard against the multitude of problems created by the U.S.’s enactment of anti-circumvention measures in the U.S. Digital Millennium Copyright Act.

30 Days of DRM:
- Day 1 – Linking Copyright and Anti-Circumvention (Markets)
- Day 2 – Region Coding (Markets)
- Day 3 – Oversite of DRM Misuse (Markets)
- Day 4 – DRM Misuse Sanctions (Markets)
- Day 5 – DRM Labeling and Consumer Awareness (Public Protection)
- Day 6 – Interoperability (Public Protection and Markets)
- Day 7 – DRM-Free Library Deposits (Public Protection)
- Day 8 – Privacy (Circumvention Rights)
- Day 9 – Reverse Engineering (Circumvention Rights)
- Day 10 – Security Research(Circumvention Rights)
- Day 11 – Involuntary Installation of Software (Circumvention Rights)
- Day 12 – Research and Private Study (Circumvention Rights)
- Day 13 – Criticism, Review and News Reporting (Circumvention Rights)
- Day 14 – Private Copying (Circumvention Rights)
- Day 15 – Artistic Access (Circumvention Rights)
- Day 16 – System Repair (Circumvention Rights)
- Day 17 – Broken or Obsolete Technology (Circumvention Rights)
- Day 18 – Backup Copies of Software (Circumvention Rights)
- Day 19 – Backup Copies of Digital Consumer Products (Circumvention Rights)
- Day 20 – Public Domain (Circumvention Rights)
- Day 21 – Print Disabilities Circumvention Rights)
- Day 22 – Libraries (Circumvention Rights)
- Day 23 – Education Institutions (Circumvention Rights)
- Day 24 – Time Shifting (Circumvention Rights)
- Day 25 – Statutory Obligations (Circumvention Rights)
- Day 26 – Investigation of Concealed Code (Circumvention Rights)
- Day 27 – Government Works (DRM Policy)
- Day 28 – Review of New Circumvention Rights (Circumvention Rights)
- Day 29 – No Ban on Circumvention Devices (Foundation Issue)
- Day 30 – Prohibition on Contractual Circumvention of Rights (Foundation Issue)
- 30 Things You Can Do

Source: Michael Geist’s 30 Days of DRM Page

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Response to IFPI’s Piracy Report Comments on Canada

Categories: PiracyPolicy Analysis

Text of IFPI’s 2006 Piracy Report
Michael Geist responds to the IFPI’s allegations concerning Canadian piracy in its recent global report on piracy.

Sources: Michael Geist  |  Slyck  |  P2PNet  |  mediacaster  |  Times Online

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Prof Ed Felton: Nuts and Bolts of Network Neutrality

Categories: Net NeutralityPolicy Analysis

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.

Source: Professor Ed Felton

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One Year After Grokster Decision: File Sharing Continues to Unabated

Categories: BigMedia v P2P ProvidersPolicy Analysis

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.

Sources: San Jose Mercury News | MSNBC | LA Times | Star Tribune

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British MPs call for DRM Disclosure on Products

Categories: DRM AnalysisInternational Legal ReformPolicy Analysis

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.

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Publishers and Copyright

Categories: CopyrightPolicy Analysis

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.

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EFF Report: Unintended Consequences: Seven Years under the DMCA

Categories: DMCA-like LawsDRM AnalysisLobbyingPolicy Analysis

Text of Report
HTML Version of Report
The Electronic Frontier Foundation (EFF) has released version 4 of their “Unintended Consequences” report, detailing problematic side effects arising out of the Digital Millennium Copyright Act.

Sources: ars technica  |  Ed Foster’s GripeLog  |  Tech News  |  afterdawn.com  |  TMCNet  |  Internet News  |  TG Daily  |  Axcess News

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What Lies Ahead for the Canadian Recording Industry Association?

Categories: BigMedia v. P2P UsersPolicy Analysis

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.

Source: Howard Knopf

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Setback for Net Neutrality

Categories: Legal ReformNet NeutralityPolicy Analysis

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.

Alas, the Democrats appear to stand a fighting chance to take back the Senate this fall. ‘Net neutrality legislation will have to wait until then.
 
Related Story: Net Neutrality Not An Optional Feature of Internet

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What Might Conservative Copyright Look Like?

Categories: CopyrightDMCA-like LawsDRM AnalysisFair Use/DealingLegal ReformPolicy Analysis

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”.

Sources: Michael Geist’s Blog | The Hill Times Related Story: Tom Flanagan’s Creators vs. Consumers – Windsor Star

Dale’s Comment: I agree with these proposals and would add the following additional recommendations:

  1. 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]
  2. Content providers should be legally required to work with others seeking interoperability to ensure that all content can be played-back using competitive products.
  3. 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.

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French Law Could Open Up iTunes to Any Device

Categories: DRM AnalysisDRM as Market LockInternational Legal ReformiVOD/iTVNew Business ModelsPolicy Analysis

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.

Sources: PC Magazine | engadget | Yahoo! News | Inquirer | Reuters | Boston Globe | ars technica | Globe & Mail | MobileMag | Playfuls | Silicon.com | Business Week | Red Herring | PC Pro

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FCC Releases 12th Annual Report on the Status of Competition in the Video Programming Market

Categories: Digital TVFCCPolicy AnalysisSatellite Radio

Text of 12th Annual Report

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.

Coverage: WJLA ABC 7 News | The State Cathy Kirkman | Feb 10, 2006 FCC Press Release [.doc]

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Australian Parliamentary TPM Report Accepts User Concerns

Categories: DMCA-like LawsInternational Legal ReformPolicy Analysis

Text of Committee Report | version

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.

Sources: Michael Geist | LawFont.com Summary | The Age

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Canada’s Private Copying Levy Distortion

Categories: CopyrightLobbyingMedia LevyPolicy Analysis

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.

Source: Michael Geist

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The Year of Living DRMishly

Categories: DRM AnalysisPolicy Analysis

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.

Source: Wired

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UK Watchdog Howls at DRM Woes

Categories: DMCA-like LawsDRM AnalysisInternational Legal ReformPolicy Analysis

Text of NCC submission to all-party Internet group inquiry into DRM
The UK’s National Consumer Council (NCC) is calling for new laws to better protect consumer rights when it comes to enjoying digital content.

Sources: PC Pro | vnunet.com | Inquirer | BBC | Macworld | Politics.co.uk

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DMCA Triennial Rulemaking: Failing Consumers Completely

Categories: CopyrightDMCA-like LawsDRM AnalysisPolicy Analysis

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

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UK Inquiry into DRM and the Law

Categories: CopyrightDMCA-like LawsDRM AnalysisInternational Legal ReformNew TechPolicy Analysis

The All Party Parliamentary Internet Group (APIG) is to hold a public inquiry into the issues surrounding Digital Rights Management (DRM), including the degree of protection needed for both copyright holders and consumers.

Sources:
The Register | APIG

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Digital Rights Mismanagement

Categories: AntitrustDRM AnalysisDRM as Market LockPolicy Analysis

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

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RIAA v. The People

Categories: BigMedia v. P2P UsersPolicy Analysis

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.

Source: EFF

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Would you Pay 5 Cents for a Song?

Categories: Big Media v InternetNew Business ModelsPolicy Analysis

A McGill academic and former Clash producer, Sandy Pearlman, proposes a 5 cent per downloadable song solution.

Sources: Blogcritics.org + Globe & Mail Article | Irish Eyes | Londonist | Zero Paid | Mac Observer

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