October 31, 2007

ICANN: Deja vu day

Filed under: law — wseltzer @ 1:35 pm

ICANN’s GNSO council is hosting its open meeting this morning. On the agenda, several items that should have a familiar ring to ICANNwatchers.

The possible creation of a dispute resolution process for the names and acronyms of Intergovernmental Organizations, an issue considered and rejected in 2003. The Council (thankfully) chose not to request a Policy Development Process.

WHOIS. History: The WHOIS Task force, by supermajority, recommended that those registering domain names be permitted to designate and display an Operational Point of Contact rather than listing their own contact details. The Working Group commissioned after this report did not resolve anything.

Now, it’s time for the Council to vote. Council’s draft motions.

Motion 1: Approve OPOC as modified, 7 yes, 17 no. fails. The PDP is over. Long live the privacy-sapping WHOIS stalemate. Ross Rader, Registrar rep from Tucows, puts it best: “I do not think we have done the community any favors as a result of this discussion.”

The negotiation-forcing sunset proposal failed on a close vote: 10 yes, 13 no. It would have called for the elimination of WHOIS requirements from contracts in a year if consensus were not reached in the interim.

Instead, the Council called for — wait for it — more study. Don’t hold your breath.

It’s clearly time to go outside ICANN for help on the privacy front. I would like to see someone offer a _true_ privacy-preserving registration service — one that does not merely offer up the domain registrant’s personal information upon request. Any takers?

October 26, 2007

Sen. McCain Calls Fair Use on Fox

Filed under: law — wseltzer @ 2:09 pm

The Associated Press reports that presidential candidate John McCain has rejected Fox’s call to “cease and desist” from using Fox debate footage in a campaign ad.

Fox is apparently claiming infringement by the use of 18 seconds from a 90 minute debate, in which Sen. McCain is the speaker. Political argument, even in the heated sound-bite form of campaign ads, is at the core of First-Amendment protected speech. This kind of commentary use, of newsworthy material available only from Fox, suggests that not only McCain, but the general public should have greater access to debate footage.

Let’s hope this run-in with overreaching intellectual property demands inspires McCain to pursue IP balance beyond this one campaign ad.

October 25, 2007

WHOIS redux: Demand privacy in domain name registration

Filed under: law — wseltzer @ 4:01 pm

Doc’s post and the impending comments deadline for the next iteration of ICANN’s never-ending WHOIS saga finally pushed me to write up my thoughts on the latest iteration of ICANN debate.

As Doc points out, much of the current debate is very inside baseball, tied up in acronyms atop bureaucratic layers. Small wonder then that ordinary domain name registrants and Internet users haven’t commented much, while the fora are dominated by INTA members turning out responses to an “urgent request” to “let ICANN know that Whois is important to the brand owners I represent”: see the call reproduced in this response.

So what is at stake? Everyone who registers a domain name is required to enter name, address, email, and telephone numbers in a publicly accessible database. When the Internet was a group of computer scientists testing new connection protocols, this might have been a helpful directory, but now, it’s filled with a hodgepodge: corporations, individuals, non-profits, fraudsters who fake their information no matter what the rules, and people who have no idea they’re exposing their personal info to the world (possibly because they think that their own national data protection (privacy) laws will keep them safe).

ICANN has mandated collection and display of this information as a legacy of old practices, not because there has been any agreement that it should be so. There’s no reason one should have to give up privacy in order to get a stable identifier for online speech. There has never been consensus on the status quo.

That’s important because ICANN is supposed to be a consensus-driven organization. Yet intellectual property interests, who see WHOIS as their own data-mine, have managed to stall any movement away from the status quo. As they’re trying to do again now.

The specifics of the current debate, apart from the substanceless comments filling the forums, is a proposal to allow domain registrants to substitute an “Operational Point of Contact,” or OPOC, in the public listing. While all their private information would still be collected, it need not be published. Instead, the OPOC would route messages to the right recipient, for operational, technical, or legal inquiries. Thus OPOC would simultaneously make WHOIS a better technical contact resource and improve domain registrants’ privacy options. Even OPOC doesn’t go so far as I would like — I’d allow anonymous registrations, rather than insisting that data be collected if not displayed — but it’s better than the status quo.

I therefore strongly support the OPOC proposal. But ICANN’s GNSO Council is filled with constituencies, none representing individual Internet users and domain registrants. If the OPOC motion fails, then the best solution would be, as Ross Rader of the Registrar constituency (Tucows) has proposed, for the GNSO to acknowledge its lack of consensus and recommend that ICANN drop the current WHOIS requirements from its registry contracts.

If this sounds tired, it’s because we’ve been here before. Many times, from as early as 2002, 2003, and 2004. Help break the deadlock:

Public comments are invited via email until 00:00 UTC (17:00 PDT) on 30 October
2007 on the GNSO Council’s WHOIS reports and recommendations.

Submit comments to: whois-comments-2007@icann.org.

View comments at http://forum.icann.org/lists/whois-comments-2007/.

October 22, 2007

Chilly Weekend: Black Friday Prequel and Public Domain Music Scores

Filed under: law — wseltzer @ 5:02 pm

If it’s fall, these must be cease-and-desists for Black Friday ads. This year, they seem to be coming earlier than ever, as Wal-Mart sends pre-notifications against future posting. I put my analysis into a Chilling Effects Weather Report

Meanwhile, Michael Geist has the low-down on the overbroad copyright demand (PDF) that has shuttered the International Music Score Library Project. Despite vetting all submitted music for public domain status in Canada, where he runs the site, the IMSLP operator got a complaint that he was making scores available to jurisdictions where they were still under copyright — talk about misusing disharmony. Let’s hope the library is back online soon.

October 17, 2007

Fantasy Leagues’ Names, Scores are Fair Game

Filed under: law — wseltzer @ 4:22 pm

Fantasy Leagues are fair game, the Eighth Circuit has ruled, affirming C.B.C. Distribution and Marketing’s summary judgment victory over Major League Baseball (which was supported on appeal by a veritable who’s who of professional sports leagues: NFL, NBA, NHL, NASCAR, PGA, WNBA).

The court held the First Amendment trumped MLB players’ rights of publicity claims, particularly given the informational nature of the information CBC used — players’ names and batting and fielding statistics: “it would be a strange law that a person would not have a first amendment right to use information that is available to everyone…. ‘Speech that entertains, like speech that informs, is protected by the First Amendment.’”

Fantasy league players (who may be happier with their own teams at this point than Yankees or Red Sox fans) can thank CBC for pressing ahead with a declaratory judgment action rather than acceding to licensing demands. As CBC co-founder Charlie Wiegert put it to USA Today, “Now other people will question whether they do, or don’t have to pay.”

October 16, 2007

Attributor’s Recipe for Inflated Copyright Claims: Not All Copying Is Infringement

Filed under: law — wseltzer @ 6:16 pm

Over at CNet, Jennifer Guevin discusses a report from the content-tracking company “Attributor,” asserting that “The next big copyright battle may be fought in the kitchen.”

Attributor collected all the original recipes that appear on Epicurious.com, Allrecipes.com and RachaelRay.com. The software then checked those recipes against what was available elsewhere on the Web, looking for what they call matches–or instances in which two recipes are similar enough to be possibly copyright infringing.

For the purposes of the study, Attributor researchers defined a match as any two recipes in which at least 50 percent of the content was identical. Then they looked more closely at the matches with low percentages of similarity and threw out those they thought couldn’t be considered clear cases of copyright infringement.

Based on the results, Attributor found that copying recipes online is “rampant,” said Rich Pearson, senior marketing director for the company. Attributor found just over 10,000 copies of recipes that originated on the three sites. In more than 60 percent of those cases, the reposted recipes weren’t attributed to their original sources.

What Attributor didn’t note, because its software can’t possibly tell the difference, is that not all copying is infringement. This is particularly true of recipes, where the guts — the proportions of ingredients and the steps for combining them — is a “process” unprotectable by copyright. While the creative description of the crisp crust and tart-sweet filling of the perfect apple pie might contain sufficient expression to claim protection, the steps for making the dessert are in the public domain.

So Attributor might well have found 50% identity of content between a pair of pages because they offered instruction for the same dish, without finding any copying of copyrightable text. Even the surrounding prose might be so minimally expressive as to merge with the ideas. How many ways can one say “bake until crust is golden”? The cooking-instruction industry seems to be stronger than ever, notwithstanding the lack of copyright protection.

The failure to distinguish between copying and copyright infringement is likely to plague another new roll-out, YouTube’s video identification filter as well. YouTube notes one side of the problem: “No matter how accurate the tools get, it is important to remember that no technology can tell legal from infringing material without the cooperation of the content owners themselves,” but the other side is that with or without technology, copyright owners often overstate their rights.

If Video ID offers a block every time it recognizes copyrighted music, for example, it may fail to distinguish between parodic remix and infringement; if it blocks video matches, will it distinguish between scientific discussion on An Inconvenient Truth and wholesale copying? Since automated filters will never be able to distinguish between fair use and infringement — a task even judges find difficult — adding them to the YouTube workflow will likely make multimedia parody, criticism, and remix more difficult.

October 10, 2007

Digital Freedom University

Filed under: law — wseltzer @ 5:36 pm

DigitalFreedom.org and Free Culture are sponsoring a series of campus copyright debates. Catch one tonight at Harvard or Friday at Northeastern.

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