August 31, 2004
Skylink Wins: DMCA doesn't lock your garage

The Federal Circuit today affirmed (PDF) that the DMCA does not "divest the public of the property rights that the Copyright Act has long granted to the public." The Court ruled that that Skylink's universal garage door opener does not violate the DMCA Section 1201(a)(2). See EFF's Chamberlain v. Skylink archive

Chamberlain had claimed that Skylink's sale of interoperable garage door remotes violated the DMCA ban on trafficking in circumvention devices. The court rightly rejected that argument, saying that DMCA prohibitions must be tied to copyright rights to fit the balance copyright embodies.

Chamberlain's proposed construction would allow copyright owners to prohibit exclusively fair uses even in the absence of any feared foul use. It would therefore allow any copyright owner, through a combination of contractual terms and technological measures, to repeal the fair use doctrine with respect to an individual copyrighted work-or even selected copies of that copyrighted work. Again, this implication contradicts § 1201(c)(1) directly. Copyright law itself authorizes the public to make certain uses of copyrighted materials. Consumers who purchase a product containing a copy of embedded software have the inherent legal right to use that copy of the software. What the law authorizes, Chamberlain cannot revoke.

With its reading of fair use, "authorization," and the dangers of copyright misuse by those who would block interoperability, the Fed. Circuit adds some important nuance to the DMCA. "[T]he DMCA emphatically did not 'fundamentally alter' the legal landscape governing the reasonable expectations of consumers or competitors."

Posted by Wendy at 08:06 PM
August 25, 2004
Amazon Doesn't Get It

J.D. Lasica found that Amazon removed his review of Dan Gillmor's superb We the Media.

While we appreciate your opinions on the subject, the intent of customer reviews is to assist our customers in making an informed purchase decision. We provide our customer reviews section for you to comment on the merits of the book and the author's writing style. We ask that you not use it as a place for discourse on the subject matter.

It could be that this is just a slip in a too-far automated submission review system, but if corporate policy would really lead Amazon to reject thoughtful book reviews because they include "personal opinions on the subject matter," then Amazon has really lost its touch. A ban on opinionated reviews would take the very "We" out of media that made Amazon a hub in the first place.

Posted by Wendy at 03:51 PM
This Song Belongs to You and Me

Marty Schwimmer, at The Trademark Blog captures a key practice pointer from EFF's JibJab announcement: "consider the possible weaknesses in your rights so that the EFF doesn't issue a press release like this one." It's good to be able to add a bit of transparency to the legal process (and wasn't the old adage "write as if you wanted it published in the New York Times?").

Posted by Wendy at 01:10 PM
August 24, 2004
Judge Posner: Misuse Remedies for Copyright's Chill

Judge Posner, over at the Lessig blog, describes

a very worrisome problem concerning fair use. It has to do with a dichotomy long noted by legal thinkers between the law on the books and the law in action. They often diverge. And fair use is an example of this divergence. As I said in an earlier posting, fair use often benefits rather than harms the copyright holder. However, it doesn’t always; moreover, even if a copyright holder is not going to lose, and is even going to gain, sales from a degree of unlicensed copying, if he thinks he can extract a license fee, he’ll want to claim that the copying is not fair use; and finally, because the doctrine has vague contours, copyright owners are inclined to interpret it very narrowly, lest it expand by increments.

The result is a systematic overclaiming of copyright, resulting in a misunderstanding of copyright’s breadth.

We at EFF and Chilling Effects have seen these copyright overreachings frequently too. Sometimes, though, we find a little guy who doesn't want to cave in the face of threats, doesn't want to remove the web posting or excise the portion claimed to "infringe," but wants to fight for his fair use and First Amendment rights.

In the case of OPG v. Diebold, when Diebold claimed that copyright in internal emails entitled it to demand that ISPs remove criticism of Diebold e-voting machines, we took OPG's case and sued Diebold for copyright misuse and DMCA misuse. The way misuse works, if you assert more copyright than the law gives you, you're barred from enforcing any copyright in the work until you stop overreaching. Like the owner of the golden-egg-laying goose, if you ask for too much, you get nothing at all.

Judge Posner recommends the doctrine of copyright misuse too -- and as a judge, he doesn't just blog about solutions, but suggested this one in his WIREdata opinion. Let's hope that more courts, and more lawyers for the little guys, can use this doctrine to keep copyright overreaching in check.

Posted by Wendy at 07:26 PM
MPAA Strikes Again v. DVD Chips

Donna links to John Borland's report on another MPAA attack on DVD decoding:

According to the MPAA, Sigma Designs in Milpitas, Calif., and Taiwan-based MediaTek each have sold DVD-player chips to companies that offer features in their products that aren't allowed under the general DVD technology license. That act violated the license the chipmakers had to sign to build the DVD chips in the first place, the trade association said. (emphasis added)
That's right, the MPAA, through its partner in cartelization, the DVDCCA, tightly controls the features of every DVD player it allows to be marketed. Through a web of contracts, copyright, and DMCA, the MPAA has been able to prevent evolution in the design of DVD players since their introduction. DVD-player manufacturers are in a Catch-22: Don't sign the DVDCCA's restrictive contract, and you're sued under DMCA; sign, and you're contractually bound not to listen to customers' feature requests. Don't let anyone tell you these cartels aren't clever (PDF).

Posted by Wendy at 11:14 AM
August 23, 2004
BugMeNot's Terms of Use

BugMeNot, the up-again, down-again, up-again compulsory-web-registration-bypasser, has its own Terms of Use:

If you are an employee, partner, affiliate or legal representative of any site which enforces compulsory user registration then we require you to complete our registration process. Failure to do so constitutes a breach of these Terms of Use and non-authorization to use this site's resources.
 Do you consider privacy a commodity? [Yes]
   If so, what worth (in US dollars) would you place on your own privacy:
   Would you be willing to have an RFID chip inserted under your skin in
   exchange for a free, 12 month newspaper subscription? [Yes]
   What if we told you that you couldn't access news unless you agreed?
   Explain how we can verify the information you enter in this form is
   Explain how a search engine like Google would function if no content
   was publicly accessible:
via Nettime

Posted by Wendy at 12:06 PM
August 19, 2004
MGM v. Grokster: 9th Circuit Affirms Software Makers Not Liable

The Ninth Circuit Court of Appeals has unanimously upheld the district court's ruling that Morpheus and Grokster are not liable for copyright infringement of the peer-to-peer software's users.

[T]he district court's grant of partial summary judgment to the Software Distributors is clearly dictated by applicable precedent. The Copyright Owners urge a re-examination of the law in the light of what they believe to be proper public policy, expanding exponentially the reach of the doctrines of contributory and vicarious copyright infringement. Not only would such a renovation conflict with binding precedent, it would be unwise. Doubtless, taking that step would satisfy the Copyright Owners' immediate economic aims. However, it would also alter general copyright law in profound ways with unknown ultimate consequences outside the present context.
EFF case archive.

The ruling reaffirms the validity of the 20-year-old Betamax doctrine in the Internet age: technologies need be "merely capable of substantial non-infringing uses" to be lawful. This standard has let technologists develop products to the public's demands, without forcing them to ask permission first or second-guess every device that comes in contact with entertainment media. When we move away from that pattern, as in the broadcast flag's technology mandates we see less capable devices offered to the public -- fewer features for more money.

When the focus shifts to Congress, as many have observed it will, the Ninth Circuit opinion and the history of technological innovation it references give plenty of grounds for caution.

Further, as we have observed, we live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation. AT&T Corp. v. City of Portland, 216 F.3d 871, 876 (9th Cir. 1999). The introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through well-established distribution mechanisms. Yet, history has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player. Thus, it is prudent for courts to exercise caution before restructuring liability theories for the purpose of addressing specific market abuses, despite their apparent present magnitude. Indeed, the Supreme Court has admonished us to leave such matters to Congress.
Congress should be cautious of listening too closely to the incumbent big-publisher/big-lobbyist copyright holders, and listen to the broader public that benefits from disruptive innovation.

Posted by Wendy at 10:27 AM
August 11, 2004
Government Hides Cell Reliability Info

According to Wired News, the FCC is using the "terrorism" excuse to deny the public information about the reliability of wireless network infrastructure.

The FCC began collecting information about the phone network in 1991 and made the information public, precisely because the regulators thought the public had a valid need for that information. But since Sept. 11, the need to protect against highly skilled, well-educated terrorists who use the Internet to examine infrastructure outweighs the advantages of full disclosure, according to an FCC official.
In the name of vague, indefinite fears, with no end in sight, the government is taking information out of the public market. The carriers love it, because it gives them one fewer area in which they need compete -- a form of legally sanctioned collusion -- the government puts another check mark next to "doing something," and the public loses yet another government service.

We have always been at war with Oceania.

Posted by Wendy at 08:17 AM
August 10, 2004
Copyright Crusading with the BSA's Cyber Ferret

Combining the best of e-voting and copyright enforcement, the Business Software Alliance announced a nationwide poll of school children to name its new mascot, the "copyright-crusading" cyber-ferret. CNET expresses concern that the ferret "seem[s] to be an odd mascot choice for an organization devoted to strict legal adherence, given that the weasel-like mammals are outlawed in California and several other states."

We too are a bit puzzled by the BSA's slovenly ferret, not to mention the overtones of mass slaughter in the "Crusader" moniker. If kids get write-in votes, we suggest that they offer an animal more suited to haul the BSA's burden -- perhaps an eDonkey.

Posted by Wendy at 05:50 PM
August 06, 2004
Note to the Olympics: DRM Is Not Ambrosia

According to the Associated Press, the Olympics (TM) will be available live online, but only outside the U.S.

The International Olympic Committee is permitting more than a dozen broadcasters to show video of the Aug. 13-29 Olympics online. But the footage will be highly restricted to protect lucrative broadcast contracts, which are sold by territory -- $793 million paid by NBC alone. Web sites must employ technology to block viewers from outside their home countries, so U.S. Web surfers won't benefit from the BBC's live coverage. They'll have to settle for highlights posted after NBC broadcasts, which are already largely tape-delayed.

Gotta love what commercial sponsorship deals have done to the games of "peace" and "universal moral principles." Sites offering video of the games will apparently be required "to keep footage within geographic boundaries." We all know geolocation is flawed, though. When I browse with the tor anonymizing proxy for example, I frequently get German Google pages because many of the onion routners' exit nodes are in German-speaking countries.

Meanwhile, NBC, on whose behalf these restrictions are being instituted, won't win any gold medals yet. Its promised HDTV University guide to HDTV coverage of the games is "coming soon" with only a week for would-be students to learn. (Thanks PVRblog.)

Posted by Wendy at 06:24 PM
Copyright Law Wasn't Made for You and Me

Via Boing Boing, Cathy Guthrie, Woody's granddaughter, says she loves the JibJab parody of her grandfather's song.

I can speak for myself and my immediate family including my Dad, that we all love it! We've all seen it and passed it along to our friends and family. It's incredibly clever, funny and a nice break from the heavy tones of politics going on right now.... That parody was made for you and me.
Arlo Guthrie has said he likes the parody too.

Copyright being what it is, however, what Arlo and Cathy think doesn't matter. Nor even what Woody would think were he still alive. Once an author has transferred copyright, barring a termination of transfer, the author's wishes are irrelevant. Woody Guthrie, like many authors publishing commercially, had probably transferred what rights he had to his publisher for contractual royalites, but leaving his heirs no say in the uses allowed of his works. The alienability of rights may be better than the European droit d'auteur, from which an author can't escape even if he or she wants to, but it probably wasn't foremost in the minds of the Congress that passed the Sonny Bono Copyright Term Extension Act 'for the children.' It's worth remembering, again, that artists and copyright holders aren't always the same people.

Posted by Wendy at 05:02 PM