August 02, 2004

Notable + Quotable

Rob Pegoraro, in a Washington Post article indicating that the public is finally waking up and smelling the broadcast flag: "Left on its own, the market could give TiVo's system its appropriate reward. Except we don't have a free market in digital television -- the FCC guaranteed that by approving the broadcast flag.

The MPAA and the NFL phrase their objections as reasonable attempts to err on the side of caution. 'We're asking them to just wait awhile, let's think it out more thoroughly,' Attaway said.

But if a programmer or an engineer with a bright idea has to go to Washington, hat in hand and lawyers in tow, to request permission to sell a better product -- and is then told 'just wait awhile' -- we are on our way to suffocating innovation in this country."

Richard Harpel, director of federal relations for the National Association of State Universities and Land-Grant Colleges, in a Texas Online article on universities finally waking up (PDF) and smelling the Induce Act: "Our main concern of the bill is not so much a specific problem that we could put a finger on, but instead general concern of a global nature in some of the terminology present in it. It could be interpreted by some court as a violation the way the language reads now -- at the very least, it could be a mischievous opportunity for people to make false claims."

Ernest Miller, in an Importance Of... post on the Bush and/or Kerry camp (not) waking up and smelling the copyfight: "Leftist copyfighters are unlikely to switch votes because Bush promises to stick it to Hollywood, and conservative copyfighters are unlikely to switch if Kerry turns on his Hollywood money donation machine. In such a situation, why should a politician stake out a clear position? Kerry will likely talk about protecting and promoting innovation, while protecting the rights of copyright holders and creative artists.

These are important issues, of course, but that doesn't mean they will be treated as important. Certainly, the copyfight won't be treated as important this election cycle. But that doesn't mean we should stop talking about these issues and pressing the campaigns on them."

Jack Valenti Says Goodbye in the LA Times

The LA Times publishes the (a?) farewell from recently retired head of the MPAA, Jack Valenti (A Movie Czar Prepares to Roll the Credits):

What was my role amid all this change? Every day I worked to make sure the American movie could move freely and competitively, unrestricted and protected throughout the world. I believe I had some modest success doing just that....What's left to do? The highest priority is to corner and fight the dragon of movie thievery. It's a battle we will win — new, secure technology, plus changes in public attitudes and more enforcement of copyright laws, will bring moral serenity to the marketplace soon.

Which of my accomplishments will last? Probably the 36-year-old (come November) movie-rating system, which not only frees filmmakers from arbitrary rules but, more important, helps parents guide their moviegoing children.

The link to Jack's bio page on the MPAA's website is no longer there, but the somewhat-broken page is still up (A Look at Jack Valenti). Is the MPAA getting ready to put up a tribute page?

August 01, 2004

Embargo Lifted

...and the numerous reports are now confirmed: "In light of the July 30 deadline that Ludlow had set down in its threat letters to JibJab and its upstream hosting providers, we [EFF] felt we had little choice but to file suit to defend JibJab's fair use and free speech rights.

Both sides continue to exchange correspondence, and JibJab hopes this dispute can be resolved without further litigation. For the reasons discussed in our July 28 letter (PDF) to Ludlow, we continue to believe that 'This Land' is a fair use, especially in light of the fact that Woody himself borrowed the melody from an earlier song."

I can't say more than that about the JibJab case, but here are a few apropos links for those of you following the ongoing conversation about parody v. satire, fair use, free speech, and democracy:

• Copyrighting the President: "Many are concerned about the ever-expanding reach of copyright law. More are concerned about the ever-increasing concentration of the media. Greenwald's dilemma highlights how the two trends are linked: As media becomes more concentrated, competition to curry favor with politicians only increases. This intensifies during an election cycle. Networks able to signal that they will be 'friendly' - for example, by ensuring that embarrassing moments from interviews won't be made available to others - are more likely to attract candidates for interviews and so on, than networks that don't. Concentration tied to copyright thus gives networks both the motive and the means to protect favored guests" [Lawrence Lessig @ Wired Magazine].
  
• Some Troubling Implications about the Jibjab Case: "The social environment right now is politically riven; we are in the midst of the Democratic National Convention and at the heels of the Republic National Convention, with only a few months left before the election. Each side is tossing claims back and forth, promising to be the party that unites the nation. If the EFF successfully argues that Guthrie's song is about national unity, then Jibjab's release in the context of the surrounding sociopolitical climate can most definitely be argued as a parodic gesture. It just makes sense.

  By the same argument, though, Ludlow Music could propel the idea that the animation is a satire on the political campaign. How, then, can a proper decision be reached in the case?" [Free Culture].
  

• This Land Is Not the Land We Thought It Was: "Guthrie was a radical in many ways. 'Mean Talking Blues,' a Guthrie song, is unabashedly pro-union, going so far as to portray the capitalist businessman in the persona of the Devil incarnate. We all sang as school kids this apparently very patriotic song extolling the virtues of 'This Land.' But when the mysteriously missing three stanzas are added, it becomes clear that 'This Land' is itself a parody, a takeoff on the happy-go-lucky optimism of a man who sees only good in his country while he overlooks glaring problems and inequalities.

  Face it, by our standards, the man was a radical.

  Anyway, I'm no expert, but when I saw the JibJab piece, my first thought was, ol' Woody woulda liked this one" [Dead Parrot Society].
  

• Copyright: Blawg Channel Gets the Joke: "Now, before you dismiss the fact that I saw the parody clearly merely because I practice copyright and trademark law and do this stuff all day, please note that as early as eighth grade, Mrs. Jacobson, our English teacher, lauded my ability to spot metaphors and the like in the assigned reading (a comparative advantage accruing to me by being the only person wonky enough to do the reading).

  Be that as it may, as the Nader/Priceless court says, perceiving the parody clearly (or readily) is not the critical factor - parody can be subtle" [Marty Schwimmer @ The Blawg Channel].
  

July 29, 2004

More Free Music Than You Can Listen To

There is a new Wiki in town from The Red Ferret Journal dedicated to free music as in beer, mostly, but also as in free speech. It is a bit hard to read, unfortunately, but content rich (1 Million Free & Legal Music Tracks). Why? (Wiki Music):

Hmm...inspired by a chat I had with Cory and Doc a while ago, I've decided to Wiki the 1 Million Free & Legal Music Tracks page. For those of you who don't know what a Wiki is, it's a page or set of pages which can be altered by any visitor to a website.

My hope is that people will responsibly use the opportunity to add cool new free music links to the page as they find them. Hey, who knows, it might even get exciting. Anyway it's all a bit of an experiment at the moment, so I'll be keeping an eye on it just to make sure that it's used and not abused. Seacrest out! [links in original]

via Gizmodo

Two on Tethers

Cory Doctorow, on Siva Vaidhyanathan's new article on using technological "tethers" to force customers into using your products, your whole line of products, and nothing but your products: "It's easy to understand why hardware companies love tethering -- it's a license to screw their locked-in customers out of titanic sums of money -- but that's exactly why smart customers need to reject tethered products."

Dan Gillmor, on his decision to stop purchasing iTunes: "Threats to use copyright law against Real are exactly what you'd expect, unfortunately. Apple wants control over online music, and this is just part of the game.

What we customers want is cross-platform compatibility: standards. What the companies want is lock-in. They may win, but they're only locking me out -- because I won't play by those rules. Which means I've bought my last iTunes Music Store song until Apple starts paying more attention to what its customers want."

Apple vs. Real: A DRM Story

Edward Felten, with the definitive post on the below-discussed fracas over Real reverse-engineering for compatibility with Apple's iPod:

Pay attention now, 'cause this story gets kinda complicated.

See, Apple had this product called iPod that lets you listen to music. That sounds like a good idea. But Apple thought it would be better if the iPod could do less. So their engineers pulled a bunch of all-nighters to make sure that the iPod couldn't play just any music a customer might have laying around. They called this DRM. I think that stands for Don't Replay Music.

Now Apple had a competitor called Real. And Real was unhappy that Apple had made its product less useful. So Real's engineers pulled a bunch of all-nighters, so that they could make Apple's product better. They could've spent that time making their own product better, but that would have been a waste after all of the time they had already spent making their own product worse by making it do DRM too.

You still with me? Good.

Okay, so Apple was mighty ticked off that Real had made Apple's product better, without even getting permission or anything. So Apple cried foul. Apple was shocked 'n' saddened that Real was trying to improve Apple's product, like those hacker guys are always doing. So Apple drew a line in the sand, and swore to make its own product worse again.

I don't know about you, but I find this all very confusing. I guess I just don't have a head for business.

Apple vs. Reverse Engineering

Four quick pointers:

CNN: "'We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod,' Apple said in a release.

Apple said Thursday it is looking into Real's actions under various laws, including the Digital Copyright Millennium Act (DMCA), which prohibits the manufacture, sale, or distribution of code-breaking devices used to illegally copy software."

Derek Slater: "Along with piracy rhetoric, we now get evil hacker rhetoric. Since when is reverse engineering unethical? Oh right - since the DMCA, which Apple is predictably waving around. Let me remind you that Real was one of the first companies to sue the creator of an interoperating product under the DMCA, so it's not as if they're the innocent defenders of innovation here. This could make for a fine DMCA battle royale, with copyright holders caught in between. Or it could fade away - we'll see."

Ernie Miller: "As if being a hacker is bad thing. What do you call those two guys who built a computer in their garage and started a little computer company named after a fruit?"

ZDNet: "'It is highly likely that Real's Harmony technology will cease to work with current and future iPods,' the company said in its statement."

Oops - I Seem To Be Standing On Your Shoulders

Fred von Lohmann breaks the news that Woody Guthrie may have "borrowed" quite a bit of "This Land Is Your Land" from The Carter Family, which in turn may have "borrowed" it from someone else.

Writes Fred, "[In] the letter (PDF) threatening copyright litigation over JibJab's animated political parody, 'This Land,' Ludlow's lawyer goes out of his way to attack JibJab for copying 'the entire melody, harmony, rhythm and structure of the [sic] Mr. Guthrie's song.'

Er, sorry there Ludlow, but actually, the entire melody, harmony, rhythm, and structure of 'This Land is Your Land' doesn't belong to you. And I'd like to think Mr. Guthrie would never have claimed credit for them, if he were still alive to ask."

This Use Is Fair Use

I'm appropriating Andrew Raff's especially apt title to announce that the cat has officially escaped the bag: EFF has taken on JibJab as a client. EFF's reply (PDF) to the latest threat letter (PDF) from Ludlow Music, Inc. discusses the recent debate over whether or not "This Land" is a true parody under copyright law, citing Copyfight author Ernie Miller and the good people over at The Blawg Channel.

Check out Ernie's post over @ Importance Of...; it's got a nice juxtaposition of the text in the Ludlow threat letter and EFF's reply, plus (as always) a whole lot more.

July 28, 2004

Guess I'm Going to Have to Buy the White Album Again

The Register runs an interesting meditation on Apple's DRM strategy (DRM begins to work its magic). The article basically accuses Apple of playing the ol' "format upgrade - buy everything over again" game:

"Wouldn't it be great if you could take a dozen of your favorite songs with you," [on your cell phone] Jobs told the crowd.

Wouldn't it, just? For millions of users however this is already a reality. Much like a burglar giving the burgled householder first opportunity to buy their own stuff back, Apple is promising a right we already enjoy as a bonus. An innovation, even...."If people accept [DRM], the logic for the music industry is to apply the wonders of the Internet to the old vinyl-tape-CD upgrade gag, and to start selling different versions of playback rights (want a shedload of one-time play music for tonight's party? we can do that for you)," wrote John Lettice.

Having set the bar so low at 128kbps encoding - and the price at 99 cents per song, so high - one of the premiums that the music industry will now be able to offer is 'fair use'. In order to get the public to accept this proposition they must first forget that they ever had the right to make a copy of music they'd bought. And that's the true significance of today's announcement.

The 9/11 Report -- A Bestseller from the Public Domain

The New York Times reports that the the 9/11 Report has been "a royalty-free windfall" for publisher Norton.

"The 9/11 Commission Report," the final report of the National Commission on Terrorist Attacks Upon the United States, has remained at the top of the best-seller lists at online bookstores since its release last Thursday.

The report is topping the Amazon charts despite being uncopyrightable and freely available on the web. It's one of the of the few types of works left -- works of government authorship -- that enters the modern public domain.

According to the typical copyright story playing in Washington, this publication and its profits for the publisher shouldn't have happened. What would be the incentive to publish a book that anyone else could freely read and even republish? Yet it seems that some people still want to read on bound paper, and a publisher can still make money by being first to market at a reasonable price. Of course the newsworthiness of the event and subject had plenty to do with this story, but it helps show, as do and Lawrence Lessig's experience with it, that total control isn't the only workable business model for publishers.

July 27, 2004

IP and the Internet Meltdown

I'm at PFIR's "Preventing the Internet Meltdown", where today kicked off with a discussion of intellectual property (the other IP). It was a happy surprise to share the stage with Thane Tierney, of Universal Music Group, who shared our horror at the Induce Act and joined a genuine dialogue about the collision between the Internet and the recording industry. He was willing to think about a world in which the record industry shifts its role from controller and distributor to that of filter. I hope we'll be able to continue that conversation with Thane and others in his business, to move toward a solution that leaves the Internet open to innovation and pays artists and copyright holders.

Also on the panel, Ed Felten commented on the one-way ratchet of copyright legislation; Michael Froomkin called on technologists to spec and build speech-enabling technologies (like Tor); and Carrie Lowe of the ALA called our attention to the copyright-driven inaccessibility of material to libraries and the public they serve. I talked about reclaiming the Internet from amid the copyright-dominated debate in Washington.

Barbie's In a Blender

Bravo to the students @ Free Culture for today's spirited celebration of fair use in action. Check out the entirely legal art exhibit, served with a generous helping of levity:

Legal Notice
Sorry Barbie, it's a free country and everything on this site is protected by the First Amendment right to speak, comment, and parody. So maybe you should give your lawyers a break from suing people for a while. Who knows? Maybe it'll give them some free time to ask you out on a date. Just think off all the shopping you could do on a corporate lawyer's salary! Seriously, does Ken even have a job?

Lessig's Free Culture on Third Printing Despite/Due to Free Downloads

Stanford Magazine notes that Larry Lessig's hardcover you-have-to-pay-for-it version of his latest book, Free Culture, is in its third printing (Give It Away and They'll Buy It). All this due to (or despite, depending on who you are asking) the book being freely available for download (180,000 served so far) in a multiplicity of e-book formats, languages and audio versions (Free Culture Derivatives and Remixes).

via IP Updates

Parodist Fined for Getting People Interested in Politics

Just in time for the growing controversy over This Land, I stumbled over another article on the district court ruling last week in Korea in which a 26-year-old college student was fined $129,000 for creating political parodies and posting them online. The student's crime? Potentially influencing an election and -- I kid you not -- trying to "get the public interested in politics."

Excerpt:

"Satire and jest for parody works may be acceptable, but this parody image went too far in criticizing a specific political party and seemed to have a great influence on the election," the ruling said. "Considering that the image tried to get the public interested in politics, a punishment with a fine is sentenced."