February 2004

All your facts are belong to us

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…


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Outside agitators (not) in MA

From a friend of mine living in Massachusetts:

I have gotten yet MORE calls today from out-of-state relatives who are members of conservative groups (seems to be mostly evangelical Christian groups) urging me to call and voice support for the constitutional ban on gay marriage later today/tomorrow.

ALL of them told me they had already called MA state house members to urge them to vote for the ban — before they called me!

BUT THE KICKER – at least one (and I suspect from context of our conversation, another as well) of my benighted relatives admitted that they had disengenously represented themselves as MASS RESIDENTS!


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MGM v. Grokster == Sony v. Universal?

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.

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Putting the Djinni back

When I was a young MIT grad student back in 1994, I attended a big Media Lab symposium on the new Digital Information Superhighway. Mosaic had been out a little over a year, Netscape had been founded six months ago, and I was listening to Mickey Schulhof, President & CEO of Sony America, give us his vision of the future. The world he described was the standard pre-Web story: every home in America would have a set-top box (made by Sony) that decoded content for all us consumers. At the other end of the wire was a Sony office that handled billing and content delivery. The content was, of course, also produced by Sony, though they’d happily broker for non-Sony customers as well. He also made a strong point that they had no interest in managing the wires themselves, kindly ceding this part of the vision to competition.

Being a young grad student and having religiously read Wired Magazine for over a year, when it came time for Q&A I asked the obvious question: “In this world you describe, how will people get access to non-professionally produced content that can’t afford the pricing structure Sony will require?” His answer: “I don’t think people care about non-professional content.”

As we all know, he was soon proven horribly wrong, but every time there’s a new seismic shift in technology all the current monopolies scurry to try to put the Djini back in the bottle. The latest shifts for content is with portable and home-entertainment boxes, and it’s in this context that I read the announcement that Disney has finally agreed to license Microsoft’s Digital Rights Management software to “bring about a vibrant market for legitimate, high-quality entertainment delivered to new categories of end-user devices, such as personal media players and home media center PCs.” In other words, the game is shifting again, and this time the Content Cartel isn’t going to be caught with their pants down.

Now things get bloody, as if they weren’t before. I suspect the only thing that frightens Disney more than P2P-traded Mickey Mouse fan-art is the idea of Microsoft stepping into the Sony role of Mickey Schulhof’s vision. Microsoft, along with Apple and RealNetworks, have to walk the fine line between appeasing the Content Cartel and offering consumers enough control that they don’t blow off DRM and proprietary standards entirely for systems with simple embedded Linux & MPEG. (See Jeffrey O’Brien’s recent Wired article for a nice discussion.) I’m not sure who’s gonna win this one, but as one of those people producing non-professional content, I sure hope Schulhof vision wasn’t just late in coming.


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Audio Lectures for download

The past few days I’ve been downloading streaming audio of lectures and talks given by interesting and intelligent people™, converting them to MP3 format and putting them on my iPod. The process is still a little slow — usually I stream the audio using RealPlayer and use Applescript and Wiretap to automatically capture to disk, then trim using Quicktime Pro and convert to MP3 using iTunes. However, I’m pleased with the end result.

I’m still looking for good sources of audio talks, and welcome suggestions & links. Here are the three I’ve most enjoyed so far:

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Privacy Backlash

Jane Black’s Privacy Matters column in BusinessWeek this week takes a look at the privacy backlash against the MATRIX statewide database and similar programs:

BIRTH OF BIG BROTHER. There’s no doubt that MATRIX raises privacy red flags, though after an extensive briefing by the Florida Law Enforcement Dept., which is spearheading the project, I believe that it’s little more than an efficient way to query multiple databases.

The real furor over MATRIX demonstrates something much more important — and surprising: Privacy advocates have gained a lot of ground in the two years since September 11. And the pendulum is swinging back in their favor.

“The MATRIX is not whirring away at night to create a list of suspects that is placed on my desk every morning,” says Zadra [chief of investigation at the Florida Law Enforcement]. “All it does is dynamically combine commercially available public data with state-owned data [such as driver’s license information, sexual-predator records, and Corrections Dept. information] when queried. I can’t imagine any citizen getting angry that we’re using the best tools available to efficiently and effectively solve crimes.”

Nobody has a problem with law enforcement using the best tools to solve crimes. Everybody has a problem with law enforcement using those tools to harass innocent citizens and suppress free expression of speech. It’s because of this potential for abuse that we have things like the Fourth Amendment and laws preventing the CIA from spying on US citizens. The trouble with all these combined public/commercial database plans like MATRIX, CAPPS-2 and TIA is that commercial databases have no such protections — companies can and will do just about anything to gather information about us, and it’s all perfectly legal. Why should I care whether it’s the CIA or Master Card that is telling the government what breakfast cereal I eat?

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Groklaw on McBride talk

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.

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