public.net

2003-07-02T10:24:00.000-07:00

Pupils learn in wi-fi wood.

"If you go down to the woods in southern England, you may be surprised to find a group of pupils armed with the latest handheld gadgets.

"The children have been given personal digital assistants (PDAs) and pocket radios to track down and record plants and wildlife.
They have been taking part in a scheme called the Ambient Wood Project, which looks at how technology can best be used to teach schoolchildren about ecology.

2003-06-30T14:25:00.000-07:00

In Internet Becoming Candidates' Domain (washingtonpost.com) the Post writes that Dean is building a massive grass-roots org online, working especially with Meetup.com. I like this: "In an innovative move, the Dean campaign is stealing a play from corporate online advertising by buying ads that are displayed on search engine sites after users look for competitors' sites. For example, if users type in "George W. Bush" or "John Kerry," they will find a boxed link to Dean's campaign prominently displayed.

2003-03-14T15:10:00.000-08:00

This Post article casts the story in a more "factual" way, citing GAO studies that found 56% of searches for Brittney and Pokemon yielded porn. Hmm, that doesn't quite equal 56% of all content on P2P nets, does it? Take a look at the Web:

2003-03-14T14:52:00.000-08:00

Cnet reports that Republicans are very worried about child porn on P2P networks. Or could it be that's just a handy excuse to attack P2P once again?
[link] | [comment]

2003-01-17T10:43:00.000-08:00

My report on the Eldred decision is here. The gist of the piece is that the tech and activist communities are angry in the extreme about the decision and that a nascent movement may be forming. The article on O'Reilly Net is here.

Here are a few comments I've received today:

Remember the days when we could get away with just about anything on the Internet? What happened to our cyber "don't fence me in" open range? I think part of the problem is that we've all become far too obedient. In the old days pirate sites would have popped up all over the world mirroring "prohibited" content. Now the record or movie industry barks and we all fall into line.

As for this copyright ruling - and I say this as a published author with a stake in reasonable copyright laws - After 50 years the material should move into the public domain. This is particularly important for the written word. Maybe it's time to start misbehaving again.

--Steven Pizzo, investigative reporter and general pain in the ass

I thought your article on Eldred decision was great. There was one
misleading point though. You claim the thrust of Lessig's argument rests on
the limited times clause, and in describing he clause say "...ceding to
Congress the right to decide the length of the copyright terms for new
works".

Unfortunately, the limited times clause does not specify "for new works"
which would have made the case almost unarguable. Not really sure how many
will catch this, but it is a bit misleading for understanding the
intricacies of the case and decision.

-Chandler McWilliams

2003-01-14T21:14:00.000-08:00

I received this email response from Scott Barnett, asst. prof. of communications at Connecticut's Quinnipiac University, regarding my interview with Rick Boucher on his DMCA-altering bill.

Sorry but Rep. Bouchard needs to read the statute on Fair use a little closer before he can say the DMCA infringes on the "fair use" of the individual.

for reference:

Section 107 of the Copyright Act of 1976. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Thus, nowhere herein do we see any room for "personal" use of materials. There is NO "Fair use" as Bouchard describes, or perhaps understands it. Fair use doctrine was created for educational, critical, and perhaps satirical use and analysis of works, not for you and me to make basement tapes. Other aspects of Title 17 may refer to such uses, but they are not defined as "Fair Use."

What perhaps is being lost in all this is that we are growing a generation of electronic free wheelers, who think open source means open doors to any and everything. I teach students to make creative works and also try to teach them respect for the creative works of others...someday it could be their masterpiece being distributed and dissected without renumeration or credit. Yet despite the limitations of current copyright law, and the onerous statute DMCA, it is appalling to see bandwagon legislators defending their quick fix bill upon ill advised and poorly researched notions. Mr. Bouchard may have a point about the DMCA as poor lawmaking, but he should do his homework before framing the justification of the fix on "fair use." Too many people, educators, journalists and legislators alike have all erred in their definition and understanding of fair use, to the detriment of a generation of Internet and multimedia users and creators.

regards,

Scott B. Barnett

Asst. Professor of Communications

Quinnipiac University

2003-01-14T21:09:00.000-08:00

The wires are abuzz today with news of an alliance between the music business and the high tech industry. The Chronicle story is as good as any. The conventional wisdom here is that the deal pretty much kills a chance for the Hollings bill, although Valenti says the movie studios are still pushing for it. Meanwhile, it seems unlikely that the tech companies will continue to stand behind the Boucher bill, which would amend the DMCA to make it legal to circumvent copy-protection for legitimate home copying purposes.

2003-01-13T00:54:00.000-08:00

Declan's legislative preview article gives a fascinating look at things to come in DC. Besides the Boucher bill, ominous news that the Hollings bill may be reintroduced. McCain sounds dubious about it, but more over "mandates" than on public interest grounds.

2003-01-13T00:47:00.000-08:00

Nice analysis of the Lexmark case by Ed Felten

2003-01-13T00:44:00.000-08:00

FCC chairman Michael Powell called TiVO "God's machine," the SF Chronicle reports. Powell obviously believes there is a huge benefit to the public in being able to copy tv shows, which might make him look askance at the broadcast flag making its way through Congress. But does the flag really inhibit personal copying? I'm sure the television producers would like it too, but Rep. Boucher (see link below) explains in some detail that flagged broadcasts would still allow home copying. Let's look at the legislation in more detail.

2003-01-13T00:27:00.000-08:00

Law Meme has an excellent analysis of the Eldred case written by Yale law student Benjamin Gross. Gross notes the weakness of Lessig's 1st Amendment argument and the relative strength of his pure Copyright Clause argument. He finds that the 1st Amendment argument weakens his overall case, and that the Court is unlikely to create "legislative chaos" by simply overturning CTEA.

He predicts remanding the case back to the Appeals Court "in accordance with Lessig’s suggestion in the Petitioner’s Brief that retroactive extensions should at minimum “be tested for ‘congruence and proportionality’ to the ends of the Copyright Clause.” This compromise approach would allow the Court to avoid the legislative chaos resulting from a flat-out abolition of the CTEA, while allowing for further consideration of the scope of Congressional authority. If the lower court rules that the CTEA is overly broad to serve its ultimate purpose, it could reject the irrelevant portions and present a more narrowly tailored piece of legislation better able to accomplish the government’s stated goals."

2003-01-12T23:43:00.000-08:00

Here's a link to my interview with Rick Boucher. Boucher introduced a bill that would rewrite DMCA to allow circumvention of copyprotection technology for legitimate personal and fair use copying. In the interview he says: "What I am seeking to do is to restore fair use and make it as applicable in the digital era as it is with analog technology ... I think the Supreme Court got it right, and I want us to return to that time-tested and well-honored and time-tested and very practical doctrine that says that all you have to do is have a substantial noninfringing use and then you need not fear future liability. ... The DMCA is one of the greatest barriers to innovation that Congress has ever adopted, in my opinion. ... And my bill doesn’t do anything that would make it more or less likely that people bent on committing piracy are going to commit it. What my bill does is free the innocent consumer to use digital media in the way in which he wants to use it. ... [With broadcast-flag-marked content, users] can make unlimited copies within the home but they cant upload it to the internet. But that’s fine; we don’t want internet distribution of this stuff anyway, and I don’t think we ought to have internet distribution of digital content that’s purchased in the store. Its fine to continue to keep that illegal. ... I’m just confident that the public interest and the technology industry standing together will win."

2003-01-12T22:08:00.000-08:00

Under the category of circular links, it's nice to see my report on the Creative Commons launch blogged on the Creative Commons site.

2003-01-09T16:42:00.000-08:00

A bit of a recap of events. Elcomsoft not guilty under DMCA. Norway courts finds DVD Jon not guilty of anything by creating DeCSS, the software that broke DVD encryption so DVDs can be played on nonlicensed devices (Linux PCs). Creative Commons licenses released with Jack Valenti's stamp of approval. Mere months from a Supreme Court ruling on Eldred. Boucher bill would rewrite DMCA to make circumvention for legal, fair use purposes (In other words, DeCSS) not a crime. AND he gets high techn and consumer electronics industries to sign on in a big way. Is the pendulum swinging back?

2003-01-09T15:59:00.000-08:00

Speaking of Rick Boucher, I just finished an interview with the Virginia congressman and leading Washington defender of cyber rights. It should be on oreillynet.com early next week.

2003-01-09T15:58:00.000-08:00

Here's an article by Declan McCullagh noting that Lexmark is using DMCA to try to stop after-market toner vendors from stealing the toner resale business. Apparently, Static Control sells chips to third-party vendors. These chips trick Lexmark (Dell) printers into thinking the third party toner cart is from Lexmark. Lex figures that these chips are "circumventing" the security mechanism they have in place. To my way of thinking, though, it's a problem that it's not a copy protection device, but rather a competition-blocking device. Increasingly, the DMCA is being used as a monopoly protection law. Is this what Lessig meant by "code plus law"? Is this what Boucher means when he says that DMCA inhibits innovation?

2003-01-09T15:51:00.000-08:00

So, back to the blog after an extended holiday-laden break. The final version of my report on the Creative Commons launch is now up on O'Reilly Network.

2002-12-17T13:57:00.000-08:00

I'll get back to my update on last night's creative commons rollout soon (it was interrupted by an IE flakeout), but here's news that the verdict on Elcomsoft is in and the decision is NOT GUILTY. The judge's instructions were that that the jury should find guilty only if they found the company's motives were to willfully violate the law. The jury seemed to find that the law was confusing, elcomsoft's intention was to enable uses of legal works, and they had no intention of breaking the law. The case is a big win because it says that violating DMCA to enable legal uses of a product -- as opposed to allowing illegal copying and distribution (so called piracy) -- does not lead to a criminal conviction. Will the decision lead to greater freedom in reverse engineering copy protection systems for legal, fair uses?

2002-12-17T00:15:00.000-08:00

Notes from the Creative Commons launch tonight:

These notes will make the basis of a story for O'Reilly Net tomorrow.

Interview with Larry Lessig:

Creative Commons is comitted to a series a projects intended to expand the public domain.

1. An engine to build licenses that are machine readable. Express dimensions of public domainness in a) legal code; b) plain language (Commons deed); c) metadata.

We're seeding the ability to do this. In the future we'll introduce searching technologies that will let you say "Internet, show me stuff that has these licensing attributes. We want to increase the space of stuff people know they can use More details on the CC site, which by the way seems to be broken. Drop me a line (rkoman@attbi.com) when it's fixed. Basically, the license lets you set terms for your work. You can allow copying only with attribution (or you can allow copying no attribution), copying only if you are paid, you can allow derivative works or not, and so on.

I mentioned that O'Reilly had had conversations with him about putting stuff in founder's copyright, but there is no form to fill out to turn off the copyright. The cr system has a default of NO with regard to ALL creative work. CC wants to change that to a no on some creative work, yes on some creative work, and a mixture of yes and no on a range of rights. At the big event on Monday, Lessig also announced the second project:

2. Founder's Copyright. The original copyright specified in the Constitution is 14 years renewable for another 14 years. After 28 years the work enters the public domain. Lessig announced that O'Reilly would be putting 200 of their works under the Founders Copyright. But in a conversation with Tim O'Reilly last evening, he pointed out that those 200 works are books that are already out of print. "What we need to do is put current books under the Founders Copyright," he told me. Assuming that authors agree, the out of print books can simply be put into the public domain, Tim said; there's no point in claiming another decade or two of copyright on a title that's been out of print for years.

As for books currently in print, each author would have to agree to move the book from standard copyright (Big C, as a creative commons Flash movie has it) to CC's Founders Copyright. O'Reilly contracts will be changed for all books signed in the future to stipulate that the book is published under Founder's Copyright. It's a no brainer for us, Tim said. As a computer book publisher, O'Reilly doesnt have any titles that are useful 14, and certainly 28, years after pub. Any titles that are still relevant so long after their initial pub, think Unix in a Nutshell, are only relevant because they have been continually updated and it is the original edition, not the latest edition taht would enter the PD. Thus, Tim sees zero risk to the company by cutting copyrights back from life+70 to 14 or 28. He allows that he might feel differently if he were a fiction publisher.

But FC (founders copyright) has a huge advantage to the community at large. Take books like the X books; they're long out of print -- the market no longer supports publishing those books as a commercial endeavor. And of course, old out of date computer books are of limited use. But once in the PD, the books can be updated and revised by the people who care about having up to date documentation on X. O'Reilly no longer cares about this information; let the people who do care about it take ownership of the core texts.

This brings us to one of Larry's strongest formulations in my interview with him, although he did not mention it at the launch party. All works can have two lives he said -- the first is a commercial life. And at a certain point that life ends. But copyright doesn't end; it goes on and on, and so the work is trapped in copyright purgatory. But founders copyright offers a work a second, noncommercial life. Or you could say a work dies and goes to public domain heaven. In its public, noncommercial life it can go on to engender derivative works, be published by many different publishers, be the basis for sampling, be the basis for some new creation. Certainly the X books have lived their first life; founders cr allows a second life to occur long before the 100+-year standard copyright would allow.

And since it takes far less than 14 years for most commercial works to end their private, commercial life, the CC license would allow a publisher to change the terms of copyright when it was appropriate. Under CC, you could say, upon pub, all rights reserved; and then, later, when the thing no longer had any sales -- now only some rights are reserved (the requirement for attribution, say, or the ability to do derivative works.) It's completely up to the publisher to set the rights, and it doesn't lock up all works for life + 70, regardless.

Tim talked about these issues in terms of recycling. Just like you recycle your newspapers, so they can be turned into paper or cardboard boxes, creative works should be recycled. When you're done with them, when controlling them no longer provides any value, then release them, allow other people to make creative cardboard out of them. CC is so brilliant because it is so respectful of the range of desires a creator might have. Disney can have Mickey Mouse forever, in other words; CC just enables millions of other works to be put in the public domain, if tahts what the creators want.

2002-12-11T11:22:00.000-08:00

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.

2002-12-11T11:03:00.000-08:00

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.

2002-12-09T21:58:00.000-08:00

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."

2002-12-09T21:37:00.000-08:00

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.

2002-12-09T17:07:00.000-08:00

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.

2002-12-09T10:40:00.000-08:00

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

2002-12-09T01:37:00.000-08:00

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)

2002-12-09T01:13:00.000-08:00

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.

2002-12-09T01:02:00.000-08:00

Here's my interview with Karl Auerbach for O'Reilly:"ICANN Out of Control." It's been posted on slashdot and politech.

2002-12-09T01:00:00.000-08:00

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.

2002-12-09T00:46:00.000-08:00

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.