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{Wednesday, December 11, 2002}

Elcomsoft trial closes. News.com reports that it doesn't look good for elcomsoft. But that might be ok, because the constitutional issues the case raises about DMCA will only be raised in appeal: During the trial, Judge Whyte denied most of ElcomSoft's attempts to present evidence about what customers did with the Advanced eBook Processor software they purchased. After the prosecution objected, the judge quashed e-mails presented by the defense that appeared to be from customers and cut off some lines of questioning about why people were purchasing the software.

Jefferson Scher, an attorney with the law firm Carr & Ferrell, said he would be surprised if the jury doesn't convict ElcomSoft. "The law says thou shalt not sell, and it's very hard to find loopholes in the law," Scher said. He believes most of the "juicy issues"--such as how free-speech protections square with the DMCA and how much authority Congress has in enforcing copyright law--will come up on appeal.

posted by Richard Koman 11:22 AM Comment

Washington Post today:: In the first decision of its kind in any country, Australia's highest court ruled yesterday that Dow Jones & Co., which publishes the Wall Street Journal and Barron's, must stand trial in Australia, not in the United States, for allegedly defaming a mining executive from Melbourne. Like most countries, Australia offers fewer free-speech protections than are afforded by the First Amendment to the U.S. Constitution.

posted by Richard Koman 11:03 AM Comment

{Monday, December 09, 2002}

Here is Declan's piece on Judge Posner adding his (conservative) voice to those advocating limits for the expansion of intellectual property. "These rights keep expanding without any solid information about why they're socially beneficial," Posner said. "At the same time that regulations are diminishing, intellectual-property rights are blossoming--(two) opposite trends bucking each other."

posted by Richard Koman 9:58 PM Comment
Luke Franci has taken up Lessig's call to give more to EFF than to the cable/telephone/etc monopoly that want to take control of how the public gets to use the Net. Luke figures he pays $50 a month for cable net access and going out to movies, so he's chronicling his attempt to beat that in donations to the "good guys." So far so good. Guess Luke doesn't spend money on CDs anymore.
posted by Richard Koman 9:37 PM Comment
Article in today's Chron about 321 Studios new DVD ripping software, and the suit -- a preemptive challenge to DMCA -- they've brought against the movie studios.
posted by Richard Koman 5:07 PM Comment
The Washington Post has a follow up piece on the Wal-Mart v. FatWallet to-do. An interesting thread is that Wal-Mart's action might be a good thing in the long run since this is the first time corporate use has affected the common consumer. I'm posting the text of it here, since I can't find a link to the piece on the Post's site.
Wal-Mart's recent use of the Digital Millennium Copyright Act (DMCA) to keep its prices from being posted on several comparison-shopping Web sites marked the 1998 law's debut to the average American consumer.

The giant retailer's legal assault on a few consumer-oriented sites last month triggered marquee media coverage and a fair amount of negative publicity for the Arkansas-based mega-chain. But Wal-Mart appears to think the DMCA is a good tool for protecting its business.

"If we need to, we will do it again in the future," said Jeffrey Gitchel, an attorney with Pittsburgh-based Kirkpatrick and Lockhart, the firm Wal-Mart Stores Inc. hired to wield the four-year-old DMCA against FatWallet.com, a Web service that allows subscribers to post retailers' prices, sales and other special offers so readers can comparison shop in one place instead of hoofing it to the mall or browsing throughout the Web.

FatWallet.com irked Wal-Mart by publishing the retailers' post-Thanksgiving sale prices -- two weeks before Thanksgiving. Wal-Mart objected, arguing that the advance posting violated the DMCA because its price lists protected under copyright law, spokesman Tom Williams said. Other retailers, including office-supply giant Staples, went after similar price comparison Web sites, but Wal-Mart was the only one to use the DMCA as its justification.

University of California-Berkeley law professor Deirdre Mulligan -- who led a defense of FatWallet.com -- said that compilations of facts, such as information on Wal-Mart's upcoming sales, don't violate copyright laws. Nevertheless, the threat of a lawsuit convinced the shopping sites to de-list sales prices for Wal-Mart and other retailers.

Wal-Mart also tried to use the DMCA to force FatWallet.com to reveal who posted the prices, but backed down after Mulligan and a legal team came to the Web site's defense. In certain circumstances, the DMCA allows companies to obtain such information without asking a court for a subpoena.

"Non-judicial subpoenas are always kind of questionable because companies don't have to put themselves at that much risk of answering to a court," said technology policy consultant James Harper.

Harper said Wal-Mart's action was the first time that copyright law has crossed paths with "Joe and Jane Sixpack," and he said that if Wal-Mart keeps the DMCA in its own legal arsenal, other retailers will feel more comfortable using it in high-profile ways.

The DMCA traditionally has been used by groups like the Recording Industry Association of America (RIAA) to crack down on illegal music file-sharing on Napster, Aimster, Kazaa and other services, and it likely will remain that way, according to Gitchel.

While those copyright battles have made plenty of waves among file traders, geeks and policy wonks, the intersection of copyright law and the digital age has remained a relatively minor issue to most Americans.

Earlier DMCA protests often would involve "12 geeks" in front of the Supreme Court or a company that used the law to foil digital music distributors, Harper said, observing that "it's not exactly taking it to the streets."

Mulligan agreed that the Wal-Mart example will put a brighter public spotlight on online intellectual property issues.

Related Link: Chillingeffects.org: run by the Samuelson Law, Technology and Public Policy Clinic, catalogues DMCA cases.

-- Robert MacMillan, washingtonpost.com Tech Policy editor

posted by Richard Koman 10:40 AM Comment
Lessig is putting on a symposium on spectrum policy. "We're holding a conference on March 1 at Stanford about spectrum policy. If that sounds boring, then you really need to pay a bit more attention to the next extraordinarily important policy issue affecting innovation and growth. There is about to be a very significant shift in how spectrum is managed. One school says it should be propertized; another says it should be treated as a commons. Read: auctions vs. WiFi; or more auctions vs. mesh networks. The question for the conference is which model makes most sense. The day will end with a "moot court" which will be judged by FCC Chairman Powell, Judge Alex Kozinski, economist Harold Demsetsz, and possibly Senator Barbara Boxer." (Lessig blog)
posted by Richard Koman 1:37 AM Comment
I was in the bookstore today and I saw HarperCollins has a copy of the 1900 Wizard of Oz, the same edition Brewster passed out around the country, but their copyright prohibits copying of any portion of the book. Other HarperCollins editions of pd material say the same. But another publisher's edition of "Secret Garden" merely says the the new illustrations are copyright, and makes no claims to the text.
posted by Richard Koman 1:13 AM Comment
Here's my interview with Karl Auerbach for O'Reilly:"ICANN Out of Control." It's been posted on slashdot and politech.
posted by Richard Koman 1:02 AM Comment
Wired reported on Friday that ICANN will keep the elected board members on for an indefinite period of time. Bowing to the pressure from the public? Stuart Lynn: "No one brought pressue and criticism." Meaning no one other than Karl Auerbach, of course. "That's a Karl Auerbach fantasy," Wired quotes Lynn as saying.
posted by Richard Koman 1:00 AM Comment
Public comments on the DMCA must be filed by December 18. PCWorld article explains that the LofC will consider
exemptions to DMCA. For instance, Seth Finklestein requested the right to circumvent the blacklists on Internet filterware programs. This
was illegal under DMCA before the exemption was approved.

posted by Richard Koman 12:46 AM Comment