brainwagon

While not as openly hostile as the kind of stuff that Sony was doing with their active-rootkitting stuff, it’s actually not that hard to create a CD which many applications find unrippable: wander over to Ed Felton’s Freedom to Tinker blog for instructions on how to Make Your Own Copy-Protected CD with Passive Protection.

Note: this really only works for Windows. You can rip these CDs using Macs or Linux just fine. Way to go Microsoft!

Wow. It’s hard to comprehend just how bad an idea plotlines patents actually are. I think I’ll need a bit more coffee before I could even attempt to try. Still, there is little doubt that intellectual property law is heading toward a precipice.

Some particularly good quotes from Andrew Knight’s justification for plotline patents:

There is little fear that artistic creation will be halted due to the enforcement of patent protection newly applied to artistic inventions. … In fact, most artistic concepts today are very old–which is precisely the problem that must be remedied by patent protection for artistic inventions. Unless patents on artistic inventions are upheld and enforceable, the great artistic minds of the day will be compelled to continue composing predictable love songs for pop stars and slightly altered dialogues for carbon copied movie plots.

Really? Does that make any sense to anyone?

There is currently little motivation for artistic inventors to innovate new plots, themes, and methods of expression.

Boggle!

A patent system that sanctions and defends patents on artistic inventions, such as new and nonobvious plots, will spur an array of never-seen-before, never-experienced-before, intellectually inspiring forms of entertainment. A patent system that lethargically clings to an as-of-yet unarticulated rule that artistic inventions are not patentable subject matter because they are not closely enough related to a mechanical gear or an electronic integrated circuit will guarantee our nation the same repertoire of mind numbing movies and dime-a-dozen boy bands.

I can’t help but think that this is merely the absurd argument which demonstrates the vacuousness of
software patents.

Well, I haven’t had a chance to read the ruling yet, but it appears that the SCOTUS has unanimously gutted the Sony decision and made software companies potentially liable for infringing uses of their software, regardless of whatever significant non-infringing uses their might be.

I’ll post again when I have something in the way of analysis.

Addendum: I’m probably overreacting by claiming it gutted the Sony decision. My initial skim of the decision has only served to confuse me on what practical importance (if any) today’s decision had. It definitely seems to make companies which promote copyright infringement to be dangerous to fund, but I’m not sure it goes beyond that, and it is far from clear that even a company like Grokster would qualify.

Addendum2: The best discussion I’ve found so far was here, on the SCOTUSblog.

Slashdot mentioned that the Google SiteRank patent application was available, so here it is for your perusal.

Congressman Rick Boucher is a rare animal indeed: a man looks at the bigger picture of intellectual property and tries to determine the appropriate balance intended by the founding fathers in creating patents and copyrights. I first became aware of the Congressman when he guest blogged on Lawrence Lessig’s weblog, where he showed surprising sense. He has written a guest editorial for news.com, where he suggests that in exchange for enacting the FCC’s Broadcast Flag rule, Congress should restore fair use rights which were destroyed by the DMCA.

Hmmph.

I can’t help but think that this is a bargain with the devil. The DMCA should never have restricted the fair and unregulated uses of copyrighted material. It was a travesty: one that robbed the American people their rightful property. I’m not sure why Congressman Boucher thinks that we should pay for giving back a right which never should have been taken.

And make no mistake: the Broadcast Flag does nothing for consumers. In the page I linked above, Congressman Boucher claimed to fear a culture where everything was “pay per use”. That is precisely the kind of world that the Broadcast Flag is designed to create. The Broadcast Flag is an annoyance to consumers. It means that transferring your time shifted video from your TiVo to your PDA will be a hassle. That transferring it to your Unix box will be a bigger hassle.

When Mr. Glickman says:

“So why should I care about a so-called broadcast flag regulation? The answer is simple. I want to make certain that the American people will continue to have the opportunity to see our movies and television shows on free television in the digital age.”

First of all, just where is this “free television”? I live in the bottom of a valley, so over the air broadcasts are basically impossible. I pay $45 a month or so for my traditional analog cable from Comcast. I don’t have free television, and as time goes on, fewer and fewer Americans do.

Next, there is currently no broadcast flag, and yet there seems to be no shortage of programming. One could, of course, make claims as to its quality, but one presumes that there could be only a single reason for not having better programming: the almighty dollar.

Really, what Mr. Glickman is saying that “if we made more money, we could create more programming, and the Broadcast Flag will enable us to make more money.” Glickman expects us to sign off on this, and we will see this new programming as a result. It sort of reminds me of the ideas that were floated early in the early days of Cable TV. “Pay us, and you can have fewer commercials!” they said. Uh huh. We all know how that worked out.

Giving teeth to the FCC Broadcast Flag resolution in exchange for restored fair use is basically robbing Peter to pay Paul: it doesn’t really make any sense.

I recognize you are one of the “good guys”, Congressman Boucher, but I think you can come up with a better idea than this.

Although, perhaps no better compromise.

Ars Technica points us at both an article from The Economist which questioned the accuracy and methology of the BSA in determining of piracy to businesses, and the terse and unresponsive reply from Beth Scott of the BSA.

Reproduced here in full:


SIR —
Your article on software piracy was extreme, misleading and irresponsible ("BSA or just BS?", May 21st). The headline was particularly offensive. The implication that an industry would purposely inflate the rate of piracy and its impact to suit its political aims is ridiculous. The problem is real and needs no exaggeration.


Piracy probably is a problem for businesses. The question is: how much of a problem is it? In the BSA’s world, every pirated copy of software is a lost sale. They, like the MPAA and the RIAA, don’t realize that software, like movies and music, are incredibly elastic commodities. If faced with actually having to buy them for current market price, most people would simply do without rather than pay for them. In strictly economic sense, this severely limits the potential losses. It’s like saying that if you doubled tolls on the Bay Bridge, you’d make twice as much money. What really would happen would be that less people would travel over the Bay Bridge. Effects on actual revenue are considerably harder to predict.

I don’t support piracy, but the BSA is full of BS.

The Times Online reports that Britain is considering doubling the length of copyrights on pop classics, in an attempt to march in step with American laws. Currently Britain’s copyright protection lasts 50 years, while in the U.S. copyrights go for 90.

Their justification?

James Purnell, the new minister for creative industries, believes the change will allow record companies to generate extra revenue to look for new talent and nurture it. Purnell, who will outline his plans in a speech next week, said: “The music industry is a risky business and finding talent and artists is expensive. There is a view that long-term earners are needed so that the record companies can plough money back into unearthing new talent.”

Frankly, I dispute this idea. It isn’t expensive to unearth raw talent: it’s expensive and time consuming to become talented. Finding talented people is actually pretty simple. What’s expensive is the ridiculous process that the music industry goes through to market and promote their music.

You see, the problem isn’t that a couple of pop classics will be protected. It’s that all works will be. You are robbing the public of their property by keeping it from entering the public domain, with absolutely no reasonable recompense.

Let their dying business model die. Let new ones, based upon building on our shared cultural heritage begin.

Xeni Jardin filed a story for Wired on the installation of spy cams funded by the MPAA. These cameras monitor a couple of alleys and feed directly to the LAPD’s Central Area station. Are these cameras there do detect assaults? Robberies? Drug trafficking?

Nope, illegal bootleg DVD sales.

Read the article. Does anyone think that the movie industry is losing substantial money to these poor quality bootlegs?

Dan put me onto Turtle’s 78 RPM Jukebox, a site which contains some very nice recordings of old 78 RPM records which are in the public domain. Some very cool stuff, but it contains the following puzzling disclaimer:

All original recordings are understood to be in the public domain.
All selections in this jukebox are the sole property of Turtle Services Limited.
Each contains a unique signature.
Enjoy each for your personal pleasure but do not use any for a commercial purpose!

If something is in the public domain, you can’t put any restrictions on its use. From the Copyright FAQ:

Where is the public domain?

The public domain is not a place. A work of authorship is in the public domain if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.

You can’t claim that a work is in the public domain and then turn around and pretend like you have copyright on it without creating a new derivative work out of it. The courts have pretty consistently upheld that mastering old material into new formats does not qualify because typically such transcriptions involve purely technical as opposed to artistic decisions.

Nolo has an excellent book on the subject that can help educate you on issues relating to this.

Addendum: To back up my claim, check out this page, section 496.03(b)(2) Noncopyrightable elements for a list of modifications which do not justify the claim of copyright.

Dan Glickman, CEO of the MPAA has an editorial running on news.com entitled: Why the broadcast flag should go forward. I urge you to go read it and think about it.

A federal appeals court ruled that when the FCC mandated that all manufacturers of digital video equipment must implement and support the use of a Broadcast Flag by July 1 of this year, they considerably overstepped their powers granted to them by Congress. The FCC took the rather shocking stance that there powers are implied, rather than enumerated by Congress, and that they were free to effect mandates without legislative oversight, permission, or the involvement of the public.

The court naturally held a dim view to this interpretation, and rightly struck down the Broadcast Flag requirement, stating that the FCC did not have statutory authority.

Of course the MPAA is in support of this legislation. Despite Glickman’s claim that this is to “protect the magic of the movies”, it is really quite simple: they want to limit the ability of the public to trade in what they view as their property. For decades, individuals have had the right to record programs and play them back at a later time, or to send these tapes to their friends who may have missed them. They have had the right to record them and amass large tape libraries of shows. The MPAA views this as potential lost revenue, and they want it to stop.

Glickman says:

Our companies want to continue to show their movies and television shows to viewers who don’t or can’t subscribe to cable or satellite systems. But without the broadcast flag, that option will look less and less appealing.

By “less appealling”, he means “we will make less money”. This strikes me as similar to the arguments presented before the Sony case. “The videotape recorder will end movies.” “The entertainment industry will go bankrupt!”

The entertainment industry thought that the glass was half empty. In fact, it wasn’t just half full, it was entirely full. This FUD surrounding the broadcast flag is just more of the same.

Microsoft is sponsoring a short film competition in the UK entitled Thought Thieves on the subject of intellectual property theft.

Thought Thieves is about people stealing and profiting from your creation or innovation. Think about it: how would you feel if you saw your hard work being passed off as the property of someone else? What would you do?

There are two categories: 14-17 year olds, and 18+.

Submissions are limited to 45 seconds or less, presumably because intellectual property law is straightforward and uncontroversial.

I wonder if any of the entries will touch on any of the following topics:

• The difference between copyright infringement and theft.
• The founder’s idea that the grant of copyright and patent monopolies exist to promote the useful arts and sciences, and that they be limited in duration.
• That technological innovation has always lead to periods of extended discussion and compromise.
• That the doctrine of fair use exists to protect individuals who use works in a limited way.

Somehow, I suspect the films will be considerably less subtle in their treatment of this topic.

In a two-fer that illustrates that all is right with the world, the A’s managed to beat the Yankees 6-3 in the 10th by mashing on Mariano Rivera, and the DC Circuit Court of Appeals unanimously struck down laws which enabled the FCC to mandate the Broadcast Flag. They found that the reasoning of the FCC (that they had broad powers in areas previously unregulated) was extraordinary and unconstitutional. The court found that any powers granted to the FCC had to be explicitly conferred by Congress.

Good one.

To reinforce the idea that the not everything is right with the world, it seems like national ID cards are going to happen because the Real ID Act legislation was attached to an appropriations bill for operations in Iraq. Sigh.

I’ve long thought that there should be some legal challenge to the excessive penalties levied against file sharers. After all, if I go and steal a CD in any store in the US, it would be classified as petty theft, with fines of maybe $500 and a maximum of thirty days of jailtime, which is almost always waived. Yet, if I download even a single copyrighted file, I could be liable for literally hundreds of thousands of dollars. The reality of these cases is that they are never brought to trial. The RIAA has settled thousands of these cases for an average of $3000 a pop. The threat of large cash fines being levied is enough to make settlement virtually the only choice in such cases, regardless of the merits.

It appears that J. Cam Barker of the University of Texas at Austin School of Law has similar thoughts, but while I am not a lawyer, he is. Check out his paper:

SSRN-Grossly Excessive Penalties in the Battle Against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement by J. Cam Barker

The article dissects awards into punitive and compensatory damages, and illustrates how under the principles laid down in the Supreme Court case BMW v. Gore, these awards may be viewed as unconsitutionally excessive.

I’ve read only about half the paper, but it seems surprisingly clear and concise. Check it out.

Last night I finally got around to watching Revelations, a Star Wars fan film which I found to be truly remarkable. It is not without its flaws, but it is remarkable that fans could dedicate enough time, energy and organization to produce such a professional and competent film. I found the special effects and costuming to be particularly noteworthy and surprising. To keep from running afoul of George Lucas and his lawyers, the film is absolutely free and available for download in either Quicktime formats or alternatively as a DVD image. There is also a second DVD which contains the “making of” information which I haven’t watched yet, but will probably watch in the next couple of days.

Cool stuff, and inspiring for DIY media types.

I also read that Slate magazine had asked that George Lucas release Star Wars under a Creative Commons license. I think the chances are right around 0%, but it’s an interesting idea.

Incidently, Slate places the cost of Revelations at $20,000. That’s pinching your pennies.

There is a nice interview on dpreview.com with David Coffin, author of dcraw.c, a nice little Linux program that decodes most RAW formats from digital cameras. Very cool and useful stuff. From the interview:

3. Are you ever concerned about the legal implications of reverse-engineering proprietary file formats?

If anyone sued me, I’d be the biggest free software hero since Jon Johanson. It’s better for the camera makers to ignore me and hope I lose interest.

Heh. Rock on, Dave.