Steve Jobs on How he Started Apple with "Illegal" Devices. Lessons to be Learned re Bill C-11?

Here's an amazing interview with Steve Jobs about how he and Steve Wozniak ("Woz") made what he admits were "illegal" "Blue Boxes" for telephone hacking. These were their first products.

"If we hadn't of made blue boxes, there would have been no Apple."

Fast forward to the DMCA and Bill C-11. So, is there a "bright line" between "criminal" activity, "piracy",  and "innovation"?

This is recounted on tonight's "60 Minutes" and is apparently in the new biography.

HK

Wall Busting Canadian Gets C&D Letter from "NYT"

(Nieman Journalism Lab)

A clever Canadian named “Dave” Hayes, with a previously obscure blog, has written a four line Java script over his lunch hour that, apparently, can crack the controversial New York Times $40 million paywall. You simply drag and drop it into your bookmarks toolbar, and then click on it when necessary. It apparently works. Since it needs a file name to be a part of your bookmarks, he called it “NYTClean”. The New York Times is not amused and does not think that this filename is fit to print - even on your computer screen.

One might have thought that the NY Times might have had some thoughts about inducing or authorizing copyright infringement, or maybe even the dreaded DMCA . However, as Americans are constantly astonished to learn and Canadians constantly need to be reminded, the DMCA does not apply (yet) in Canada, which is still a sovereign country despite the tireless efforts of many copyright reform lobbyists.  I’m not commenting here on how such copyright theories would play out either in Canada or the USA.

However, the NYT (if I may refer to it that way) is apparently less upset about the efficacy of Dave’s four lines of code that can apparently blow away the NYT’s $40 million game changing “investment in our future” paywall with one click than Dave’s alleged “trademark dilution and trademark infringement under U.S. and Canadian trademark law”. NYT’s counsel has sent Dave a C&D letter - see below. 

This is rather odd, for lots of reasons. For example:

• According to the Supreme Court of Canada no less,there is no such thing as the American “trademark dilution” doctrine as such under Canadian law;

• Moreover, Dave isn’t even “using” the letters NYT as a trademark, because Dave isn’t selling newspapers or online news reports; and, 

• “NYT” isn’t even registered as a trade-mark in either the USA or Canada, which, though not conclusive, is very telling indeed.

Anyway, I seriously respect and even love the New York Times. It's hard to see how the world could do without it. I actually understand that some newspapers are having a hard time adapting to the internet. But, at last report, the internet is here to stay, which may not be the case with all newspapers, or record companies for that matter, that do not adapt to it. 

Moreover, I am personally rather conflicted about the NY Times paywall, since I sincerely hope that the NY Times survives and indeed proposers. However, I (and many others - see Arianna Huffington here and here ) believe that its  paywall is an awkward and ineffective attempt in the wrong direction. I am certainly not flattered or thankful that this paywall was beta tested on Canadians. Could this have been because Canadians are too polite to protest, eh?

Well, Dave is apparently one uppity wall busting Canadian. If a clever Canadian can write four lines of pay wall busting code over lunch hour, and get attention around the world, and the best that the NYT can come up with is a "trademark dilution and trademark infringement" C&D email, then we should pay attention to “Dave.”

And, of course, the NYT has apparently forgotten about the Streisand effect of problematic C&D letters. They have a way bringing unwanted attention to the very activity that the author wants to C&D. Dave is getting lots of attention, including in Time and at the Nieman Journalism Lab.

And, in this case, this is nothing if not ironic. Remember the first law of email - “Never hit the send key on anything you couldn't live with on page one of the New York Times” (aka NYT).

Anyway, here’s the NYT's letter:

I am writing concerning your “NYTClean” bookmarklet, posted at http://euri.ca/2011/03/21/get-around-new-york-times-20-article-limit/.

As you obviously know, The New York Times Company has used its ‘The New York Times’ trademark since at least as early as 1851 and today offers numerous products and services under its famous ‘The New York Times’ trademark, including its online version of The New York Times at the URL NYTimes.com, and various blogs and electronic media products. NYTCo’s NYTimes.com website receives over 15,000,000 unique visitors each month. NYTCo owns numerous registrations for its ‘The New York Times’ trademark in the U.S. Patent and Trademark Office and Canadian Trade-Marks Office and these trademarks are among the company’s most valuable assets.

We object to your use of our famous “NYT” trademark in connection with your application and your promotion thereof, which constitutes trademark dilution and trademark infringement under U.S. and Canadian trademark law.

Accordingly, we ask that you immediately cease use of the “NYT” trademark in connection with this application. This email is without prejudice to any action that may be necessary to protect the valuable rights of NYTCo in its intellectual property.

Very truly yours,

Rxxxxxx Sxxxxx

Senior Counsel

The New York Times Company

HK

Bezos: "stupid, thoughtless, and painfully out of line with our principles"

Jeff Bezoz, the founder and CEO of Amazon, wisely had this to say today about the recent Orwellian 1984 memory hole fiasco:

Initial post: Jul 23, 2009 12:16 PM PDT

Jeffrey P. Bezos says:

This is an apology for the way we previously handled illegally sold copies of 1984 and other novels on Kindle. Our "solution" to the problem was stupid, thoughtless, and painfully out of line with our principles. It is wholly self-inflicted, and we deserve the criticism we've received. We will use the scar tissue from this painful mistake to help make better decisions going forward, ones that match our mission.

With deep apology to our customers,

Jeff Bezos
Founder & CEO
Amazon.com

(emphasis added)

I must say that such a quick and unequivocal apology is to be commended. (lessons here to be learned by the RIAA, CRIA, ASCAP, Access Copyright, etc.)

What Bezos clearly understands, and the RIAA and its ilk clearly do not, is that "the customer is always right." It's not a good idea to sue and/or screw your fans and/or customers.

Yes, "it's the copyright law, stupid" could become the reply to many burning questions. It was in this instance, since the edition remotely deleted by Amazon was legal in most countries because the copyright had expired, but not in the USA, which had foolishly extended the copyright term to life + 70 years just in time to cover Orwell.

There are obvious lessons to be learned here for Canada.

"It's the DMCA + , stupid" might be a good place to start as CRIA, CIRPA, CMPDA. ESA and others try to bring the DMCA + to Canada.

The DMCA + term extension + "three strikes" are the triple crown that CRIA, CMPDA, ESA and their various emanations are trying to bring to Canada. This is precisely the kind of regime that led Bezos and Amazon into this fiasco.

Ministers Clement and Moore and their officials will hopefully take note.

HK

Right to Repair

Cars are increasingly computerized. Consumers are increasingly dependent upon even captive to their "authrorized"new car dealers for repair of these cars when the warranty expires because independent repair facilities do not have access to the information, tools, diagnostic codes, computer programs and other products and services necessary to service today's complex vehicles. IP and competition law are major issues here.

In Canada, there is a private member's bill intoduced by Mr. Masse as Bill C- 273, which is receiving much attention.

In the USA, there is a similar but more detailed bill, H.R. 2057 that is also getting some attention.

One of the notable differences between the two bills is that the American bill provides explicit remedies.

The EFF is suggesting that the concept apply accross the board to all consumer products and points out how the DMCA gets in the way of a the consumers' "right to repair".

All of this comes in interesting times for the major automobile companies.

HK

Obama and NAFTA?

This story is coming back.

It seems that there is an effort in the US Congress to restrict all "stimulus" spending on iron, steel and perhaps other goods to "made in the USA" sources. That's illegal under NAFTA, perhaps under WTO, and would be a very bad way in any event to begin a new era in Canada/USA relations. NAFTA is still in full force, last I heard.

Industry Minister Tony Clement is already speaking out. Prime Minister Harper has expressed "grave concern." The issue clearly could and should arise during President Obama's visit to Canada on February 19, 2009 - if it has not been fully defused by then.

It will be really interesting to see what President Obama does about this, given his past pronouncements about NAFTA and the conventional wisdom about the Democratic Party's relative predilection for protectionism. Let's see whether there will be "change" afoot on this front.

If such a blatantly protectionist move as this is enacted into law, it will be even more interesting to see if the current Canadian government is once again in an unseemly hurry to enact the American wish list for a DMCA North "Made Worse in Canada" version of American copyright law.

There are things that need to be done to improve Canadian copyright law. But we don't need to import the worst features of American law, particularly if the Americans are going to become even greater scofflaws of international law. And we don't need to shovel money at the Americans for copyright rights that they don't provide to Canadians.

This is an old story that goes back well into the 19th century. It probably won't end soon. It is now beginning to be documented and analyzed by by scholars such as Sara Bannerman.

Let's hope that Canada learns not to get pushed around on copyright policy by the USA, as it once was by the UK. It's time for Canada to finally stand on its own feet on copyright and other fronts, and move on from being part of declining empires.

HK

Copyright as Olympic Censorship Tool - Updated

Slashdot has a story about how the IOC invoked the DMCA to take down a pro-Tibet video that presumably offended it by showing the famous five rings being used as handcuffs or otherwise. The IOC appears to be doing a great job of censoring protest that would offend the Chinese government.

Follow the link to the Vimeo site and watch while you can. Warning - the video shows bloody and maybe even dead bodies.

This is not copyright infringement by any stretch under American case law. YouTube caved and took the video down, even though it could have assumed a minuscule theoretical risk and ignored the clearly baseless and abusive DMCA take down notice. Needless to say, this is disappointing and doesn't augur well for free speech or a "do no evil" approach.

It's clearly unrealistic to expect the protesters to fight back to put the video up - since this could risk exposure to the Chinese authorities. Would a protester in China who wishes to protest the YouTube takedown, be rational in providing, as required, by the DMCA:

The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

I'm sure that the Chinese authorities would be quite interested in this information.

This is what the DMCA is all about. Bill C-61 is not quite as bad in this respect, as it is based upon notice and notice, rather than notice and takedown. This is one of the few positive aspects of Bill C-61. But, the sound recording and film folks may not be content to let it rest that way and may push for the "American way" if the Bill reaches Committee.

UPDATE AUGUST 18, 2008.

Apparently YouTube responded to copious criticism, including from your's truly, and questioned the IOC about this. The IOC relented and withdrew its takedown notice. This time.

But what about next time? The incident shows the potential for unchecked abuse of an American style notice and take down regime, which certain predictable American dominated trade associations will likely demand if the Canadian Bill C-61 moves forward as is.

HK

The End of William Patry's Blog

Yesterday was a dark day for copyright law, and even bigger issues such as the ability of passionate and informed scholars to use the blogosphere to publish views that some powerful forces may consider to be threatening to their interests. Here's Bill's last post.

Whatever else this means, it is a great loss for those who care about sound, sustainable and balanced copyright law and wish to see it evolve in a well-informed manner and as part of a healthy debate. Here' what I posted on his final blog entry:

Bill:

Yours was clearly the leading American and international copyright blog by any measure. Unfortunately, these are not easy times in which to be scholarly, frank and to hold even perfectly reasonable views. You are indeed a “centrist.” You have defended the real purpose of copyright throughout your career. Above all, you have had the courage to hold views, which is an indispensable but increasingly rare quality in the world of scholarship and jurisprudence. It’s no wonder you have an affinity to Judge Posner and former Justice Sir Hugh Laddie.

Many have watched your personal views evolve over the years and agreed with them, or disagreed with them, as the case may be. That is healthy. Your views have always been well informed and impeccably researched. As I said in my review of your treatise, “Mr. Patry's evolution is an important indicator of where copyright law may be going.”

However, there are indeed some very powerful forces who view anyone who holds views critical of their own on such issues as the DMCA or ACTA as an “enemy of the people.” Add to this the results of “public choice” politics and economics and one can understand both your pessimism and your pragmatism.

This cannot have been an easy decision for you. You have clearly invested thousands of hours in this blog in its three splendid years. You should be very proud of it.

Since your critics and those who may try to embarrass you have no doubt already saved whatever nuggets they may attempt with futility to use against you, I hope that you will consider leaving the blog up as an invaluable research archive of these times and as an shining star for those who might take up the torch in the future.

Bravo, Bill.

Sincerely,

Howard Knopf

HK