In a victory for free speech and transparency in electronic voting debates, Judge Jeremy Fogel has ruled that Diebold should pay damages and attorneys' fees for its knowing misuse of the DMCA's takedown provisions. Decision here.
No reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold's voting machines were proteced by copyright.
The fact that Diebold never actually brought suit against any alleged infringer suggests strongly that Diebold sought to use the DMCA’s safe harbor provisions—which were designed to protect ISPs, not copyright holders—as a sword to suppress publication of embarrassing content rather than as a shield to protect its intellectual property.
Last October, Diebold threatened dozens of ISPs with lawsuits if they allowed users to post or link to a Diebold email archive documenting flaws in the company's e-voting technology. Online Policy Group, IndyMedia, and two Swarthmore students, Nelson Pavlosky and Luke Smith, didn't want to cave in, so EFF and the Stanford Cyberlaw Clinic sued Diebold on their behalf instead.
Today, that action was vindicated. Judge Fogel ruled that "there is no genuine issue of material fact that Diebold, through its use of the DMCA, sought to and did in fact suppress publication of content that is not subject to copyright protection." He further held that sending claims of copyright infringement to ISPs when their users are not infringing violates the DMCA's Section 512(f) prohibition on "knowingly materially misrepresent[ing]" infringement. Because Diebold "actually knew, should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations," it was liable to the OPG and Swarthmore student plaintiffs under 512(f).
Along with opening up the e-voting archives, I hope this decision will give new strength and new weapons to other online speakers and ISPs against the chill of aggressive, improper copyright claims.
The good folks at Engadget have invited me to get on their soapbox in a reader interview. If you have any questions you've been waiting to ask (but haven't wanted to grace my comments with), head on over and ask. I'll be answering in the next week or so. Thanks!
VOTE or NOT? should not be a question you ask yourselves this election. Ranking beautiful people may be fun, but choosing the next President or Congress is serious business -- if you can participate, please do. If you're eligible to vote but haven't yet registered, register now. Then show that you plan to vote by joining the crazy contest from Jim and James at HotOrNot, who are giving away $200,000.
We want you, and every person that is eligible, to vote. This is something we feel passionate about. We know we're just 2 guys, but we believe that 2 guys with a good idea who are willing to work hard and put their time and money where their mouths are can make a difference.
In a nutshell, we're doing this because we care, and because we can. We also like the idea of doing this because nobody else has done it before, and we like to do crazy, new things.
Yes, it's viral marketing, but it's for a good cause. We need to raise voter participation beyond its past, dismal levels. If Jim and James can put up $200,000, the least we all can do is fill out their sign-in form and get to the polls (or absentee ballots, if you don't trust your county's electronic voting systems).
Both TiVo and Replay have agreed to put Macrovision DRM technology into their personal video recorder devices, The Mercury News reports. With this DRM, they say they'll be able to offer recording of pay-per-view shows that expires from the PVR after 90 minutes or 24 hours. EFFer Fred von Lohmann points out that consumers aren't asking for this 'feature,' and hopes that the consumer marketplace will punish those who implement it. Unfortunately, information failures and collective action problems make it difficult for the public -- the end-user consumers of these devices -- to resist restrictions.
The movie studios and sports leagues will support their restrictions, as they have in the past, with claims that opting for DRM increases consumer choice. The story, as these entertainment producers tell it, is that without DRM, no recording at all would be permitted of pay-per-view. Or, if they couldn't control the tech to stop consumer recording, they wouldn't even broadcast some content in the first place. (See, for example, the arguments made about the need for protection for DVD encryption.)
In the entertainment companies' story, DRM solves a collective action problem. The public wants cheap, secure mass entertainment, but without DRM, there will be some bad eggs who spoil that promise for all the rest. With DRM, however, buyers can collectively commit to not being able to copy or redistribute content (up to the strength of the DRM, at least [FN1]). In that case, individuals are left with the choice between DRM-encumbered content and none at all. Then, as the platform gains hold, more and more content shifts to the pay-per-view side.
But is the entertainment companies' dichotomy really our only choice, long-term? Would mass entertainment cease to be if mass producers couldn't restrict the choices of their audiences? No, no more than musical composition stopped when courts ruled that the piano roll wasn't an infringing reproduction or sound recording stopped when audio artists had no public performance right. Scrappy upstart technology companies disrupted the business of producing music, but when producers couldn't control the technologies of distribution, they changed their business models instead.
Taking an even longer-term view, then, DRM creates a collective action problem of its own by pitting short-run access to entertainment content against long-run ability to innovate. Once we've accepted DRM (or its host trusted computing platform, see the dialogue between Seth and Unlimited Freedom on slow attestations), we can be forced into using only "authorized" playback devices, and forced to gain permission before creating a new media-centered application. Too much of the public is willing to sell out the benefits of competition and creative destruction for the shorter-term promise of entertainment content. If we could instead commit ourselves to rejecting DRM, we'd force the entertainment industries to a test of whether they'd really shut down rather than offering open content, and we'd leave room for innovation in the creation and delivery of mass entertainment content.
Back to TiVo and Replay. The entertainment companies play the PVR makers against one another, saying that only those that provide DRM will get the "premium" pay-per-view content. The PVR companies, recognizing the entertainment companies and their cable/satellite intermediaries as their real "customers," accede to demands for restrictions on their end-users. [Copyright law serves as a neat way for the entertainment companies to avoid having their anticompetitive conduct deemed an antitrust violation, while the cooperative effort of technology companies to resist DRM might face hurdles.] In the short term, subscribers using collaborationist PVRs get their pay-per-view, in the long term, we end up with only pay-per-view. We'll find we can build a better piano roll, but won't have any content to play on it.
[FN1] This analysis is largely independent of whether DRM works perfectly, which it can't as a technical matter. When it's backed by anticircumvention law like the DMCA, no commercial innovator can afford to break DRM, even if many individuals can. DRM serves as a barrier against disruptive competition even when it can't stop copying or retransmission.
Thanks to Ernie Miller for inviting me to join his IT Conversation on the recent Skylink ruling. The show is available for streaming or download under Creative Commons license. I enjoyed talking about the case and its meaning in the anti-anticircumvention fight with Ernie, Ed Felten, and Michael Madison.
JD Lasica talks to Hank Nothhaft, CEO of Danger, Inc., about the Sidekick II in today's Engadget interview. Now the Sidekick is a great little piece of hardware, but I doubt I'll be buying the next version. It seems every time Danger has a choice to make between end users and intermediaries, the intermediaries win out. See their stance on ringtones, for example:
JD: Can customers upload their own ringtones?
Nothhaft: No. There’s an effort by the industry to make people pay for the content on these devices.
JD: Too bad...
Danger says it's trying to reach out to independent developers, but only if they're willing to go through Danger as "gatekeeper" -- Nothhaft's word, not mine.
Nothhaft: We’re just getting started but trying to reach out to the independent developer community. A lot of the new games and applications being launched by us now are certainly all coming from third parties.
JD: What about allowing developers to create user-installable applications for the Sidekick?
Nothhaft: Not user-installable. We’re a gatekeeper in that sense. they use our developer kit, they reach an agreement with us, and then through us they can have access to our user base.
Someone forgot to tell borged-by-TMobile Danger that lots of independent software developers start out as hobbyists. They develop software to scratch an itch of their own, share it with friends, and then, perhaps, look for ways to commercialize it. Danger is also forgetting that content and network partners aren't always device manufacturers' friends. Devices are sold not just for their cool hardware (swivel screens notwithstanding), but also for the compelling applications available for them. Dry up the well of app development, and you'll find no one is crazy about a brick, even one that swivels.
Even though I like the Sidekick form factor, for my next device, I'd lean toward paying more for an open application platform, like that of the Palm-based Treo. Then I'll hope that enough others express these market preferences to help Danger see the light for version III.
Mike Linksvayer was the first I saw to point out the cleverness of Google's "Invitation Marketing":
How many otherwise respectable folk have you seen dedicating email broadcasts and blog entries to announcing that they have a few Gmail invites to give away, especially in the last couple weeks? I lost count long ago. Ad avoidance overcome, indeed.I don't think I've been on a mailing list where Gmail invites weren't offered. Is this what was meant by sell-side advertising?
Sushi for the vegetarian who isn't troubled by completely artificial ingredients. Thanks Chris!
Hot on the heels of the report to ICANN on Evaluation of New gTLDs, which concludes that "launching a new gTLD is not for the faint of heart," comes this offer of free registration in the lagging .info top-level domain. Via Bret Fausett's LexText:
From the PR Newswire: "Domainsite.com, a leading ICANN accredited registrar, announced today that it will offer free domain name registration for .info domain names. This promotion is good from September 2nd through the 9th. “We believe this promotion is just a fantastic opportunity to show our customers how much we appreciate them,” Said Bill Mushkin, CEO of the web address company. Each registrant can register up to 25 domain names for free during this promotion. There are no strings attached. Clients desiring to register more than 25 .info names will be charged $3.99 per year per domain above the 25 name limit." From the PR Newswire: "Domainsite.com, a leading ICANN accredited registrar, announced today that it will offer free domain name registration for .info domain names. This promotion is good from September 2nd through the 9th.
Chris Ambler notes that this Afilas promotion may be available through other registrars too. Get your fungible .info now.
Even as the FCC and consumer electronic companies try desperately to push Americans toward HDTV, one Washington Post reviewer joins the crowd throwing up hands at the complexity of it all. Parts don't interoperate well, even once you've upgraded for high-res, and worst of all, that's on purpose:
[T]he link from cable box to D-VHS remains troublesome -- by design. Thanks to an industry agreement, a high-def program can be copied from Comcast box to D-VHS only once. If you stop halfway and try again from the start, a "copy flag" prevents it.
In other words, consumer electronics manufacturers have so far capitulated to the demands of greedy copyright owners they've built extra failure modes into their devices. It's not enough that the picture might pixellate due to weak signal or bad connections, the industry must punish its best customers (those who have just spent thousands on HD-capable equipment) by breaking perfectly reasonable personal use patterns. Of course, if you're sick of being treated like a thief, you might try an open-source MythTV-based HD-PVR.