Intellectual Property

California Supreme Court Rules in DeCSS-posting Case

The California Supreme Court ruled today that trade secret laws can trump first amendment protections, overturning a previous Court of Appeals ruling. The case involves an injunction against Andrew Bunner, a San Francisco man who posted the DeCSS DVD encryption-crack code on his Web site. The injunction, which required Bunner to remove the code, was thrown out by the Court of Appeals on First Amendment grounds. The decision is quite narrow, essentially saying “the First Amendment does not categorically prohibit preliminary injunctions to enjoin the publication of trade secrets” and sends the case back to the Court of Appeals to re-examine the facts of the case.

I’ve read the decision, but rather than subject you to my legal ignorance I’ll defer to people in the know. First, Eugene Volokh blogs some legal concerns about the decision, saying that the court failed to explain how it determines that some speech is a matter of “private concern” (which gets less protection than something of public concern) and why it’s proper for the court to make this decision. He also questions their application of case law, especially as it relates to whether there were alternative channels to express the same speech (Justice Moreno makes a similar point in his concurring opinion).

As to how the case will wind up, Dan Gillmor posts this little gem at his blog:

I’ve had a note from a lawyer involved in the case, Tom Moore of Tomlinson Zisko in Palo Alto. He makes some interesting points. Here’s what he says:

I’m one of Andrew Bunner’s lawyers. While today’s Mercury News Internet article is true as far as it goes, it misses the fun part entirely.

The decision is a triumph of politics over logic. When you read the decision, you can follow the logic: (1) Software implicates the First Amendment; (2) trade secrets law implicates the First Amendment; (3) the proper level of scrutiny is intermediate First Amendment scrutiny; and (4) assuming that everything in the trial court’s order is supported factually, the order survives that level of scrutiny. Then you see where politics comes into play: The next logical step should have been for the Cal. Supreme Court to review the record independently. Instead, the Court sent the case back to the Court of Appeals to review the record to see if the facts were there. It’s not as if the Court could not review the record. Justice Moreno did it and concluded: “the DVD Copy Control Association’s… trade secret claim against Bunner is patently without merit.”

So, the Court did the politically safe thing by dodging the actual facts.

Those of us who work on Mr. Bunner’s behalf are more entertained than disappointed. The Court has given us a lot to work with. Indeed, the more significant decision in this case was the Cal. Supreme Court’s earlier decision, Pavlovich v. Superior Court. In that decision, the Court held that the injunction does not extend into Texas. That means that CSS and DeCSS is a secret in California only. Eventually, the public nature of DeCSS will come to the fore.

The precedents set in this case may be important, but as far as DeCSS is concerned this is all shutting the barn door after the horses have already bolted, caught a steamer and are enjoying their vacation in Tahiti. And I have the t-shirt to prove it.


No seat at the WIPO table for open source

Back in July, a group of 68 economists, scientists, industry representatives, academics, open-source advocates, consumer advocates and librarians proposed that the World Intellectual Property Organization (WIPO) host a meeting on the use of open collaborative development models. Examples described in the proposal include IETF standards, open-source software such as Apache and Apple’s Darwin OS, the Human Genome Project and open academic journals, among others. The WIPO’s initial response was quite favorable. Dr. Francis Gurry, WIPO Assistant Director and Legal Counsel, was quoted by Nature Magazine as saying “The use of open and collaborative development models for research and innovation is a very important and interesting development… The director-general looks forward with enthusiasm to taking up the invitation to organize a conference to explore the scope and application of these models.”

Needless to say, business interests like Microsoft saw such high-profile acceptance of open source as a threat, and immediately lobbied to have the idea squashed. The Washington Post and National Journal’s Technology Daily report that Lois Boland, the U.S. Patent and Trademark Office Acting Director of International Relations, dismissed the meeting as out of the WIPO’s area, saying the organization is “clearly limited to the protection of intellectual property.” “To have a meeting whose primary objective is to waive or remove those protections seems to go against the mission,” Boland told National Journal. She argued specifically against the discussion of open-source models, claiming that open-source software is not protected under copyright law but only contract law, which is not in the domain of WIPO. She also protested the manner in which the meeting was organized, saying WIPO’s agenda should be driven by member nations and the idea came from outside the organization. Under increasing pressure, WIPO canceled the meeting, saying the polarized political debate made the possibility of international policy discussion “increasingly remote.”

Lawrence Lessig’s blog blasts Boland, saying “If Lois Boland said this, then she should be asked to resign. The level of ignorance built into that statement is astonishing, and the idea that a government official of her level would be so ignorant is an embarrassment.” Personally I think Lessig is missing the broader picture here, or perhaps he is just not cynical enough. Rather than ignorance, Boland is simply showing unusual candor in her statements. Her position is that WIPO should promote international IP laws that support the current content industry, regardless of how that affects new upstart industries, national productivity, the economy or other important concerns. In the words of The Economist, she is being pro-business, but not pro-market. I agree with Lessig that this is abhorrent, but given how the U.S. continues to force brand-new IP protections down the world’s collective throat it seems to be a fair description of current U.S. policy.

The issues described in the proposal to the WIPO are not going to go away, and will eventually need to be addressed with or without the involvement of WIPO. As Ed Black, president of the Computer and Communications Industry Association, said on hearing the meeting was canceled: “Does this indicate that WIPO is abdicating authority and responsibility for these issues, including open source for the future? If so, we will all live by that, but then so must they. They should step up the plate or step aside. … It is inexplicable that they would shut the door on what are clearly important issues.”


Subpoena Targets Organizing on the Net

I expect the idea seemed simple in the RIAA’s boardroom. First, declare jihad against music sharers everywhere. Then make it known that you would be sending out subpoenas and filing lawsuits against anyone and everyone who copies. “It doesn’t matter who they are” said Cary Sherman, president of the RIAA. No doubt, they must have thought, the 60 million Americans out there who currently share music will get the message and the rest of the country will thank the record companies for getting tough on crime.

Only now the spin-doctoring is getting away from them. First, the Associated Press used information in the subpoenas to locate and interview some of the targets before even the RIAA had received their names. Far from being the poster-children for underworld crime the RIAA would have trotted before the cameras, those interviewed were college students, parents of file-sharers, and even a grandfather who uses file-sharing networks to download hard-to-find recordings of European artists.

Now comes a new hard lesson for the RIAA about life in the Internet age: these hapless individuals are starting to use the Net to organize. First was, a site started in April by the Electronic Frontier Foundation, US Internet Industry Association and other organizations to offer resources to those who wish to defend themselves against the recent torrent of subpoenas. They also host a service where you can enter the handle you use on peer-to-peer networks and see if you might soon be the target for a subpoena. And now a new site called is offering every subpoena recipient their own blog, either signed or anonymous, through which they can let their own story come out. The site, started by volunteers that include MIT Media Lab researchers and programmers who previously worked on the site, is bound to give us the exact perspective the RIAA doesn’t want us to see: just how much those 28% of Americans who share music online look just like the other 72% of us.


1000 down, 39999000 to go…

The RIAA has been feeling their oats after their victory against Verizon back in April, where the ISP was forced to reveal the names of customers who had been engaging in illegal file-swapping. Since then the RIAA has issued at least 911 subpoenas and expect to file at least several hundred lawsuits in the next few weeks in what can only be described as a “shock and awe” fight for the mindeshare of the average American.

However, more recent demands for user information have been rebuked. Last week MIT and Boston College both challenged subpoenas for user identification on their networks on two points. First, the demands that come under the DMCA are in conflict with the Family Education Rights and Privacy Act, which prohibits colleges from giving personal information without first informing the student. Second, they charge that the RIAA should have filed its subpoenas in Massachusetts instead of Washington, DC. And now Pacific Bell Internet Services is challenging more than 200 subpoenas on the same grounds: that they violate their user’s privacy and that they should have been filed in California, not Washington, DC.

The RIAA is correct in claiming that these challenges are only on procedural grounds, though already the RIAA’s shotgun approach has drawn the ire of Senator Norm Coleman, R-Minn., who chairs the Senate Permanent Subcommittee on Investigations. Another point I haven’t seen brought up in the news is that this “procedural challenge” could force the RIAA to change the venue in which its subpoenas are filed away from the court where their original Verizon case was won. (I’ll leave the analysis about whether that matters to someone with the necessary legal knowledge.)

Of course, the real battle is still for the hearts and minds of the American public. The RIAA could care less about the hundreds of college students and little-old-ladies they’re trying to sue for millions of dollars each, what’s important is the millions of Americans who think that sharing music is OK. And on that front they have more bad news: a recent survey from the Pew Internet & American Life Project reports that 67 percent of Internet users who download music say they don’t care about whether the music is copyrighted. If you accept the Ipsos/Reid finding that one quarter of Americans have downloaded music, that comes down to about 40 million Americans who have downloaded music and don’t care. And that, my friends, is a lot of subpoenas.


We control the horizontal…

I can hear it now:

Exec #1: “Members of the Word Media Cartel, we are against the ropes. We’ve tried imposing draconian penalties for even trivial piracy. We performed a perfect end-run around the fair use doctrine with the Digital Millennium Copyright Act. We’ve sued into bankruptcy anyone who might have a business model more survivable than our own. We’ve even sued down-and-out college students for $97.8 trillion dollars each, as an example to others who would stand in our way. And yet the peer-to-peer networks continue to thrive.”

Exec #2: “If only our industry had a way to convince people that piracy was wrong. You know, change how people think about copying music and movies.”

Exec #1: “Yes, yes, but there’s no point in wishing for… hey wait, say that again!”

And so it came to pass: the Motion Picture Association of America launched an unprecedented media blitz to convince the American public that by using Gnutella you hurt not just Disney stock-holders, but also Jerry, the man who fetches coffee for George Lucas every morning at 5am.

The sheer power of this blitz is daunting. The kickoff this Thursday will have thirty-five network and cable outlets all showing the same 30-second spot in the first prime-time break (a “roadblock” in ad-biz terms). Then every major theater in the country will play daily trailers on all screens in more than 5,000 theaters. Whew. And all that time is donated, which would be incredibly impressive if the spots weren’t essentially being donated to themselves.

And now the $97.8 trillion-dollar question: is the American people so pliable that their morality can be changed by a media blitz? (Could that be the manic laughter of of thousands of ad executives I hear in the distance?)


DVR Manufacturers Capitulate

The Associated Press has an overview piece on how the makers of digital video recorders are capitulating to (excuse me, “voluntarily cooperating with”) Hollywood and other members of the Content Cartel. Not too surprising given the shots fired through the bow of Sonicblue (makers of ReplayTV), forcing them into bankruptcy after paying millions in legal fees. In line with the rest of the industry, ReplayTV’s new owners say they will be good little boys and remove the ability to auto-skip commercials or send recorded programs over the Internet to other Replay users.

In the short run this means consumers get fewer features, but in the long run it’s just more sand thrown against the tide. DVRs are just commodity hardware, some standard drivers and a little bit of interface software. If UltimateTV, TiVo or ReplayTV doesn’t provide the features people want then a whole host of small manufacturers, kit makers and do-it-yourself modification kits are all more than willing to fill the gap.