Intellectual Property

Hollywood is pushing a bill in California (California Assembly Bill 2735 and California Senate Bill 1506) that would require anyone but a copyright-holder who knowingly transmits commercial audio or video over the Net to attach their true name and address. From the bill:

This bill would provide that it is a crime, punishable by a fine not exceeding $2,500, imprisonment in a county jail for a period not exceeding one year, or by both that fine and imprisonment for a person who is not the copyright owner to knowingly electronically disseminate a commercial recording or audiovisual work without disclosing his or her true name and address, and the title of the recording or audiovisual work.

…

This bill would also provide that a court may order the forfeiture and destruction of articles upon which sounds or images can be stored, electronic files, and electronic and other devices in connection with a violation of these provisions.

There are a few exceptions for distributing to one’s immediate family and over a household network, but it doesn’t exempt fair use or even allow a copyright holder to grant permission for anonymous distribution. As I read it, it includes iTunes-sharing at work and even over-the-network backup.

EFF is seeing their “evil pirates” card and raising them one “protect the children” card:

“These California anti-anonymity bills would force everyone — including children — to put their real names and addresses on all the files they trade, regardless of whether the files actually infringe copyrights,” said EFF Legal Director Cindy Cohn. “Because the bills require Internet users to post personally identifying information, they fly directly in the face of policy goals and laws that prevent identity theft and spam and protect children and domestic violence victims.”

Mr. Fantastic, are you out there?

The New York Times is rattling their legal sabers at a blogger who posted a parody corrections page, causing his ISP to force him to remove the post under threat of the DMCA. Looks like the Times is less upset about the parody and more about the fact that its author, Robert Cox of The National Debate blog, copied their HTML verbatim including live links to the nytimes.com website and banner ads. Worse yet, he included (horrors!) instructions on how to create your own parody page. I won’t reprint the instructions here for fear of legal repercussions, but it involves use of the “view source” menu option and a text editor. Even so, as Kevin Drum at Calpundit posted, “you’d think the publisher of the Pentagon Papers would show a little more respect for free speech and a little more tolerance for criticism.”

I’d add that you’d think after the Fox News v. Franken debacle the Times would realize trying to suppress a parody online is like smashing a blob of Mercury. As is becoming the standard for rerouting around censorship on the Net, Cox posted the following on his site:

While I want to “fight the good fight”, discretion is still the better part of valor and so I feel compelled to take down my parody of a New York Times Columnist Correction page. I have not, however, given up.

Today, I am announcing the creation of THE NEW YORK TIMES COLUMNIST CORRECTION POLICY PROJECT. I am looking for volunteers who are willing to mirror my fake Times web page. The original page will serve as a directory to the mirrored sites. I will list the home page and the mirror page of all project participants. For those who get a “cease and desist” letter from The Times I would ask you to avoid a conflict with The Times and remove the page. I will then list your home page in the “Fallen Heroes” page.

So far he has 14 mirrors spanning four countries, and more importantly the fight is starting to get reported in the mainstream media. To quote Cox, “Whoever said ‘never get into an argument with people who buy ink by the barrel’ never heard of the Blogosphere.”

The Indy Channel reports that George Michael (half of the hit 80’s duo Wham) has announced that after his next album he’s quitting the music industry — and shifting to giving away his music for free download:

“I’ve been very well remunerated as they say for my talents over the years, so I really don’t need the public’s money,” said Michael. “I’d really like to have something on the Internet with charitable donation optional, where anyone can download my music for free. I’ll have my favorite charities up there and people will hopefully contribute to that.”

Michael said that he expects this move will lower his public profile, since few people will care about him if he’s “not making money for someone.” He also believes he will enjoy the process of making music much more, once he is not contractually bound to release albums on a pre-determined schedule.

Michael is one of many high-profile artists with a bone to pick with the music cartel, having practically stopped his career after a bitter legal battle with his label, Columbia. Hopefully the few winners from the previous system will be able to blaze a new trail that newcomers with more to lose can follow.

Jim Griffin (former head of technology for Geffen Records) tells The Register that Wi-fi will be the death-knell for DRM/content control (I buy that) and that the solution will be flat-fee models (I’m not so sure yet, but haven’t looked at the particulars). Best quote:

By promising to play nice, and building DRM and TCPA technologies, the computer industry is simply making come-hither noises that the rights holders want to hear.

“When I was 14, I told girls I loved them to sleep with them too. It was a fiction. Steve Jobs just leaves a little money on the table,” he says. “These theoretical notions of control run headlong into the real historical experience.”

For the past couple months yet another bad IP bill has been snaking it’s way through Congress. HR-3261, aka the Database and Collections of Information Misappropriation Act (DCIMA), would allow database maintainers to sue anyone who copies facts from their database for a competing product. Even if those facts aren’t protectable under copyright. Even if they were produced by someone else. Even if the database itself was produced by someone else and is only being maintained by the plaintiff. This was dubbed the WestLaw Protection Act back when it was floated before congress and the WIPO in 1996 and again in 1998, and it’s still just a land-grab from a few database manufacturers like WestLaw (Thompson) and LexisNexis (Reed Elsevier). West’s near-monopoly on publishing government-produced judicial decisions was always shakily based their copyright of the page numbers in the citations, a basis that was further eroded in a Court of Appeals ruling in 1999.

The bill outlaws making available a “quantitatively substantial part” of a database in a “time sensitive manner,” but it leaves interpretation of how exactly what that means to the courts. This will undoubtable lead to the same “we’ll let you know whether you’re in violation after we sue you” nastiness we’ve already seen with the DMCA. It could also wind up being quite broad, assuming it’s constitutional at all. For example, there’s this bit:

5.(C) DISCRETE SECTIONS- The fact that a database is a subset of a database shall not preclude such subset from treatment as a database under this Act.

As I read it, that means even if you didn’t copy a quantitatively substantial part of my entire database, like only 50 names from a list of 5 million, I can still nail you for copying a quantitatively substantial part of a sub-database such as the 100 names within a single 9-digit zipcode. There’s also nothing saying whether once copied a fact can ever become “clean” again. For example, could Gracenote sue FreeDB because some FreeDB users submitted CD track information that originally came from Gracenote?

If this passes, it will be yet another tool for cutting off the free-flow of information — and in spite of the whining of a few database maintainers they have plenty of tools already. Expect Wal-Mart to use this to suppress price-comparison sites like FatWallet, just as they’ve tried to do using the DMCA. Expect companies like Gracenote and WestLaw to deliberately “poison the well” of available information so it’s impossible to collect a competing database without being infected with infringing copied facts, just as WestLaw did with their copyright on page numbers for legal citations. Expect Clear Channel (owner of American Top 40 and controller of 60% of Rock radio programming) to sue independent DJs (all both of them) who have similar play lists, just as they use copyright law to shut down fan sites that post the Top-40 list now. Expect me to go hide under my desk until the smoke clears…

References

• How the Current Congressional Database Protection Bill Would Go Beyond Current Law, and Why It is Unconstitutional and Misguided (Brandy Karl, FindLaw, 11 February 2004)
• HR 3261 and the ownership of facts (Cobert, LWN, 28 January 2004)
• Chamber urges House to oppose H.R. 3261 “Database and Collections of Information Misappropriation Act” (Thomas J. Donohue President and CEO, U.S. Chamber of Commerce, 19 January 2004)
• ACLU Letter to the House Committee on Energy and Commerce Urging Opposition to the “Database and Collections of Information Misappropriation Act” (Laura W. Murphy & Marvin Johnson, ACLU, 13 September 2003)
• American Library Association Action Alert
• EFF Action Alert
• PublicKnowledge Action Alert
• West Loses Copyright Claim over Page Numbers (Carol Ebbinghouse, InfoToday, 21 June 1999)
• Note On West Copyright Of Page Numbers Of Published Judicial Decisions (James Love, Taxpayer Assets Project, 1 November 1993)
• WIPO Database Proposal and HR 3531 (Stanford Copyright & Fair Use Site, 1998)
• Collections of Information Antipiracy Act (HR 2652, 20 May 1998)
• DIRECTIVE 96/9/EC… on the legal protection of databases (The European Parliament And The Council Of The European Union, 11 March 1996)

LawMeme has a nice side-by-side comparison of last week’s oral argument in the MGM v. Grokster case and the 1983 Supreme Court oral arguments in the Sony v. Betamax case. Their conclusion: the arguments being used against Grokster are the same ones that lost when the content industry tried to kill the VCR 20 years ago.

Correction: As a commenter mentioned, the case was Sony v. Universal not Sony v. Betamax — Sony made Betamax, & was sued by Universal Studios.

Groklaw has a quick summary of SCO CEO Darl McBride’s recent talk at Harvard.

SCO’s arguments are from so far out on both legal and factual grounds the only question I have is whether they just lose their case or if there will be jail terms for any of their officers as well. As for the Linux community, SCO is a distraction, but hopefully it will also act like like an immunization made from an almost-dead virus — no real danger, but it prepares the body for a similar but more powerful attack later.

On Monday, Penn State launched their program to provide their students with unlimited, legal, free music downloads through the newly reincarnated Napster 2.0. Downloads can be streamed or protected by Digital Rights Management software, and students will be allowed to keep their music until they graduate, or to purchase songs for 99 cents each. According to Penn State’s November announcement, the program is intended both to provide a legal alternative to illegal downloading and to “educate students on this issue”:

Why is Penn State providing a music downloading service to its students?

Penn State is concerned that some of its students don’t understand that downloading music over computer networks without purchasing copyright permission is both unethical and against the law. The University believes it has a responsibility to do something to change that. Penn State will continue to try to educate students on this issue and will continue to enforce its strong policies against copyright infringement. At the same time, the University wants to provide legal alternatives to illegal downloading. This service is directly aimed at helping students to understand the issue and to provide them with an alternative.

I’m curious how this plan pans out, and in particular what percentage of students will crack the DRM so they can listen to downloaded songs on their non-Napster MP3 players (e.g. iPod) or to send music to their friends at other schools. I expect a large number will, but perhaps I’m too skeptical in thinking that you can’t teach the lesson “music isn’t free” by giving someone free music.

Perhaps a more interesting question is whether Napster can lock students in to their closed discussion communities and radio stations. It’s much harder to take these services with you when you graduate than it is to run your whole hard drive through a crack-kit — I’m sure Napster gave Penn State a good deal on the assumption that this is a good foot in the door.

References

• Thousands of Penn State students tune in to Napster (PennState Live, 13 January 2004)
• Q&A: Penn State’s new online music service with Napster (PennState Live, 6 November 2003)
• Spanier: Napster agreement to meet student demand, teach integrity (Penn State President Graham Spanier, PennState Live, 18 November 2003)
• File-sharing at Penn State (PennState Live, 13 November 2003)
• Napster Fact Sheet (Napster 2.0)

Just read an interesting paper: Pop Song Piracy, Fake Books, and a Pre-history of Sampling by Barry Kernfeld, presented at the Copyright and the Networked Computer: A Stakeholder’s Congress conference. Kernfeld gives a brief history of bootleg fake books (books of lyrics and chord progressions that musicians use to get the gist of a song) and draws comparison to the music industry’s current jihad against file-sharing. From the intro:

I’d like to give a quick soup-to-nuts tour through the second half of a book in progress entitled Pop Song Piracy: Bootleg Song Sheets, Fake Books, and America’s First Criminal Copyright Trials. The first half of my book might be called “Napster in the 1930s.” It resurrects the forgotten story of bootleg song sheets (initially, newspaper-sized sheets of pop-song lyrics, and then, from the mid-1930s, song-lyric magazines). The bootleg sheets, which emerged in 1929, elicited a hysterical response from the music industry, which fought vigorously against these products for roughly a decade, using every legal ploy available, before discovering, extremely reluctantly and somewhat inadvertently, that assimilation was a much more successful policy than prohibition. The simple and obvious historical lesson to be drawn from this story, is that the essential nature of the American music industry is to defend deeply entrenched interests, without regard for change, and in its current-day reactions to Napster and Kazaa, the industry is re-living an expected and already well-established mode of behavior.

Ernest Miller has an interesting post over at LawMeme about why there is moral outcry about shutting down music filesharing on peer-to-peer systems, but not about sharing via the Web. (Props to Freedom to Tinker for the link).

Yet there hasn’t been much outcry over the fact that the RIAA has and continues to shut down hundreds of noncommercial websites offering copyrighted MP3s for download without authorization. The RIAA has even threatened lawsuits and gotten college students expelled over their refusal to remove MP3s from college websites. There has been concern (often expressed on LawMeme) about abuse of the DMCA’s notice and takedown procedures, but not much outcry when direct copyright infringement has been shown. Why is there no outraged defense of http filesharing?

…

I venture that there seems to be a different set of copynorms for the practice of filesharing via P2P and http. Certainly some defend filesharing via both P2P and http, but others strongly defend P2P with nary a word in favor of http filesharing. Although I have no proof, I suspect that the public’s attitude toward filesharing would differ based on the protocol at issue. Would 12-year old Brianna Lahara think it was okay for her to put all her music on a website for the world to copy? Why don’t we see people uploading files to their websites more often? Why aren’t they more upset when told they can’t upload to their website then when they make files available via a filesharing program?

I believe that the difference is that filesharing by http is seen clearly as a public act, while P2P seems more like a private act [Can’t stay away from that Public/Private distinction, huh? – Ed.]. If I were to stand on a street corner handing out CD-Rs to strangers (even were I doing so with no possibility of remuneration of any sort), most people would not consider that proper. If the RIAA were to sue me for such an act, would there be such an outcry over the injustice of it all? Yet, if I handed a CD-R to a friend, most would defend it. The difference is that one is private and the other public.

I think we’re seeing three effects here:

• I agree that P2P feels more private than the Web, and so people feel the law should butt out. I would argue that the main for this is that P2P software is easier to set up than a webserver, so “normal” people think of P2P as private and HTTP as “that place that I pay someone else to host content for me,” if indeed they have a personal webserver at all.

  If everyone had their own website, I expect you would see similar copynorms for both P2P and HTTP. As completely anecdotal evidence, my more techie friends who have their own websites also share music via password-protected HTTP. It would be interesting to see if this distinction between the copynorms for the two protocols exists on college campuses where every student is given his or her own personal webspace.

• P2P is newer, and so copynorms were set for P2P at a time when the Internet was used by normal, everyday people. Remember that when Mozilla and Netscape were first introduced people were still panicking about evil teen-aged hackers who could kill people from their bedroom computer and the horrible discovery that (gasp!) there was pornography on the Net. By the time mainstream America was online all the music-sharing websites had already been shutdown and sharing had moved to Napster, so “normal” people haven’t experienced it first-hand.
• There’s the idea of reciprocation with P2P, where you are generally sharing with people who share with you. I think it’s this aspect that most counteracts the feeling that you’re handing out CD-Rs to strangers and brings it closer to the idea that you’re sharing mix-tapes with your 5,000 closest new friends.