A bit late for the rule’s “triennial” cycle, the Librarian of Congress has released the sec 1201(a)(1)(C) exceptions from the prohibitions on circumventing copyright access controls. For the next three years, people will not be ” circumventing” if they “jailbreak” or unlock their smartphones, remix short portions of motion pictures on DVD (if they are college and university professors or media students, documentary filmmakers, or non-commercial video-makers), research the security of videogames, get balky obsolete dongled programs to work, or make an ebook read-aloud. (I wrote about the hearings more than a year ago, when the movie studios demoed camcording a movie — that didn’t work to stop the exemption.)

Since I’ve criticized the DMCA’s copyright expansion, I was particularly interested in the inter-agency debate over EFF’s proposed jailbreak exemption. Even given the expanded “para-copyright” of anticircumvention, the Register of Copyrights and NTIA disagreed over how far the copyright holder’s monopoly should reach. The Register recommended that jailbreaking be exempted from circumvention liability, while NTIA supported Apple’s opposition to the jailbreak exemption.

According to the Register (PDF), Apple’s “access control [preventing the running of unapproved applications] does not really appear to be protecting any copyright interest.” Apple might have had business reasons for wanting to close its platform, including taking a 30% cut of application sales and curating the iPhone “ecosystem,” those weren’t copyright reasons to bar the modification of 50 bytes of code.

NTIA saw it differently. In November 2009, after receiving preliminary recommendations from Register Peters, Asst. Secretary Larry Strickling wrote (PDF):

NTIA does not support this proposed exemption [for cell phone jailbreaking]…. Proponents argue that jailbreaking will support open communications platforms and the rights of consumers to take maximum advantage of wireless networks and associated hardware and software. Even if permitting cell phone “jailbreaking” could facilitate innovation, better serve consumers, and encourage the market to utilize open platforms, it might just as likely deter innovation by not allowing the developer to recoup its development costs and to be rewarded for its innovation. NTIA shares proponents’ enthusiasm for open platforms, but is concerned that the proper forum for consideration of these public policy questions lies before the expert regulatory agencies, the U.S. Department of Justice and the U.S. Congress.

The debate affects what an end-user buys when purchasing a product with embedded software, and how far copyright law can be leveraged to control that experience and the market. Is it, as Apple would have it, only the right to use the phone in the closed “ecosystem” as dictated by Apple, with only exit (minus termination fees) if you don’t like it there? or is it a building block, around which the user can choose a range of complements from Apple and elsewhere? In the first case, we see the happenstance of software copyright locking together a vertically integrated or curated platform, forcing new entrants to build the whole stack in order to compete. In the second, we see opportunities for distributed innovation that starts at a smaller scale: someone can build an application without Apple’s approval, improving the user’s iPhone without starting from scratch.

NTIA would send these “public policy” questions to Congress or the Department of Justice (antitrust), but the Copyright Office and Librarian of Congress properly handled them here. “[T]he task of this rulemaking is to determine whether the availability and use of access control measures has already diminished or is about to diminish the ability of the public to engage in noninfringing uses of copyrighted works similar or analogous to those that the public had traditionally been able to make prior to the enactment of the DMCA,” the Register says. Pre-DMCA, copyright left room for reverse engineering for interoperability, for end-users and complementors to bust stacks and add value. Post-DMCA, this exemption helps to restore the balance toward noninfringing uses.

In a related vein, economists have been framing research into proprietary strategies for two-sided markets, in which a platform provider is mediating between two sets of users — such as iPhone’s end-users and its app developers. In their profit-maximizing interests, proprietors may want to adjust both price and other aspects of their platforms, for example selecting fewer app developers than a competitive market would support so each earns a scarcity surplus it can pay to Apple. But just because proprietors want a constrained environment does not mean that the law should support them, nor that end-users are better off when the platform-provider maximizes profits. Copyright protects individual works against unauthorized copying; it should not be an instrument of platform maintenance — not even when the platform is or includes a copyrighted work.

Google announced Friday that it would now be “personalizing” all searches, not just those for signed-in users. If your browser has a Google cookie, unless you’ve explicitly opted out, your search results will be customized based on search history.

Danny Sullivan, at Search Engine Land, wonders why more people aren’t paying attention:

On Friday afternoon, Google made the biggest change that has ever happened in search engines, and the world largely yawned. Maybe Google timed its announcement that it was personalizing everyone’s search results just right, so few would notice. Maybe no one really understood how significant the change was. Whatever the reason, it was a huge development and deserves much more attention than it has received so far.

I agree this is a big deal, even if it’s only the next step in a trend begun by customized search for signed-in users years ago. And except for here, I won’t even mention the P-word, “privacy.” Because on top of the implications of storing all a user’s search history, I wonder about the transparency of personalized search. How do we understand what search looks like to the world as it gets sliced up by history, location, and other inferences search providers make about their searchers?

As users, we’ve basically come to terms with the non-transparency of the search algorithms that determine which results to show and how to order them. We use the engine that mostly gets us relevant results (or perhaps, that offers shopping discounts). If we’re dissatisfied with the results Google returns, we can use Yahoo or Bing.

We also have some degree of trust that search isn’t systematically discriminating against particular pages or providers for undisclosed reasons. When Google received copyright takedown demands from the Church of Scientology years ago, prompting it to remove many links to “Operation Clambake,” Google sent the takedowns to Chilling Effects and linked them from its search pages so searchers could see why the search had apparently become more pro-Scientology in its results. More recently, the search engine has worked with the Berkman Center’s StopBadware to flag malware distribution points and let searchers know why sites have been flagged “harmful.” When a racist image appeared in searches for “Michelle Obama,” Google used an ad to explain why, but did not tweak algorithms to remove the picture.

How do we verify that this trust is warranted, that page visibility is a relative meritocracy? With open source, we could read the code or delegate that task to others. With a closed platform where we can’t do that, our next best alternative is implicit or explicit comparison of results with others. Investigative journalists might follow a tip-off that liberal media seemed to rank higher than conservative, and run some comparisons and questions to test and report back; search engine optimizers, motivated to improve their own pages’ rankings, might also alert us to biases that caused unfair demotions — we can believe we’re seeing a reasonable mix of digital camera stores because proprietors would complain if they were omitted. If something “feels wrong” to enough people, chances are it will bubble up through the crowd for verification (or debunking — see the complaints that iTunes “shuffle” feature isn’t random, by listeners who confuse randomness with a non-random even distribution). If a search engine failed to disclose payment-induced bias, the FTC might even follow with a complaint.

With personalized search, these crowd-sourced modes of verification will work less well. We won’t know if the biases we encounter in search are also seen by others, or if the store shuffles its end-caps when it sees us walk in. It would be easier for an Evil search provider to subtly tweak results to favor paying clients or ideologies, unnoticed.

Finally, I’m reminded of the “ants” in Cory Doctorow’s excellent Human Readable — an automated adaptive system so complex even its creators can’t debug it or determine its patterns. If someone is paying off the ants, society can’t trace the payments.

When I asked a version of this transparency question to the “real-time search” panel at Supernova, Barney Pell of Bing suggested that users don’t want to know how the search works, only that it gets them useful results. Part of my utility function, though, is fairness. I hope we can reconstruct that broader view in a world of ever-more-personalized search.

Why did it take nearly a decade for portable video to move beyond compact DVD players? Why can we do so much more with music CDs and their successors than with DVDs and theirs? I argue the difference is baked-in DRM and its legal side-effects.

Copyright scholars have been talking for a long time about the DMCA and its impact on fair use — if your media is locked by DRM, you may be forbidden technologically from legally permissible criticism or transformation. (See the extraordinary lengths to which the MPAA goes in trying to say this isn’t so.) This is a serious problem, but it has bothered me that the focus has often eclipsed another DRM-induced problem, the foreclosure of open innovation and development around digital media.

In a draft paper, The Imperfect is the Enemy of the Good: Anticircumvention Versus Open Innovation, that will appear in the Berkeley Technology Law Journal this spring, I argue that conflicts with open development are a serious architectural flaw in anticircumvention law and policy. As we recognize the value of disruptive and user-driven innovation, we should shape the law to help, not hinder, this decentralized development.

Under an anticircumvention regime, the producers of media content can authorize or deny authorization to technologies for playing their works. Open source technologies and their developers cannot logically be authorized. “Open-source DRM” is a contradiction in terms, for open source encourages user modification (and copyleft requires its availability), while DRM compels “robustness” against those same user modifications. Since DRM aims to control use of content while permitting the user to see or hear it, it can be implemented only in software or hardware that is able to override its user’s wishes—and can’t be hacked to do otherwise. For a DRM implementation to make any sense, therefore, its barriers against user modification of the rights management must be at least as strong as those against user access to its protected content.

I characterize a “DRM imperative” and explore the technical incompatibilities between regulation by code and exploration of code. We see DRM centralizing development and forcing the black-boxing of complementary media technology, in a widening zone as it mandates that protected media be played only on compliant devices, that those may output media content only to other compliant devices, etc. The home media network is thus progressively closed to open-source development.

Foreclosing open development costs us technically, economically, and socially. We lose predicted technological improvements, those of user-innovators (von Hippel) or disruptive technologies (Christensen) from outside the incumbent-authorized set, that could offer new options for content creators and audiences (such as better playback, library, mixing, and commerce options). We lose social and cultural opportunities for commons-based peer production.

You can find the draft paper at SSRN, bepress, or here in PDF.

The House Judiciary Committee has been scheduling some interesting hearings lately, including one next week on ICANN policies: The Expansion of Top Level Domains and its Effects on Competition. Last week, they heard about Google Book Search:Competition and Commerce in Digital Books.

Perhaps the strangest reports out of last week’s hearing were those on the Register of Copyrights’s statement, in which she asserted that the settlement “is tantamount to creating a private compulsory license through the judiciary [and that] such decisions are the domain of Congress.” The Register urged that courts shouldn’t endorse “settlements that come so close to encroaching on the legislative function.”

Now while I suggested on my first read of the settlement that the registry and clearinghouse “look[ed] like private implementations of infrastructure you’d really expect government to provide,” government has thus far failed to do so (no Orphan Works legislation), while private actors have moved them much closer. That’s a reason to bemoan government’s pace and the capture of public copyright law by special-interest lobbying, perhaps, but not to stand in the way of private cooperation toward greater access.

The great absurdity in the Register’s complaint is to label the settlement a “compulsory license.” A compulsory license, in the few places they exist in copyright law, is mandatory on the copyright holder. A songwriter cannot object to a new arrangement and recording that does not “change the basic melody or fundamental character” of a previously recorded work — her only right is to recover the compulsory “cover” license fee or to negotiate a different arrangement. The Google settlement, by contrast, offers rights-holders options: the right to opt-out of the settlement entirely, leaving the defaults of copyright law in place, or the ability to participate in the settlement and request different treatment of their works. Authors need only step up and say something if they prefer copyright’s defaults to Google’s.

So while I’d love to see the settlement opened even further, to participation from other digitizers and other representatives of the public interest, this particular complaint from the Register strikes off. If government can’t facilitate access to accumulated human wisdom, it should get out of the way (while keeping watch for anticompetitive effects) while others do. Instead, the Register’s intervention here sounds like the petulant complaint of one not invited to the settlement table.

Don’t believe the anti-hype around Twitter.

Twitter hype punctured by study, reports the BBC on a recent Harvard B school finding: The median user has written only one tweet, and “the top 10% of prolific Twitter users accounted for over 90% of tweets.” As though it sealed Twitter’s fate, the BBC adds:

Research by Nielsen also suggests that many people give the service a try, but rarely or never return.

Earlier this year, the firm found that more than 60% of US Twitter users failed to return the following month.

“The Harvard data says very, very few people tweet and the Nielsen data says very, very few people listen consistently,” Mr Heil told BBC News

Rather than taking the study as a condemnation, though, I’d suggest that the fact Twitter works despite the large number of “unproductive” users is a sign of success.

More power to the Twitter team for creating a tool that allows so many people to try it so easily that the seemingly small percentage who get value out of it can find and continue using it. We should be celebrating what happens when infrastructure is cheap enough that we can accept that 60% just throw it away (even assuming all those non-tweeters aren’t using the service to listen). Rather than trying to force users to its model, Twitter has usually adapted to the customs its users have developed — and has responded to feedback when it breaks some of those conventions (see #fixreplies).

I’d go further and say a platform is only successful if it allows for failure and “unproductive” uses. If we were forced to justify our photo collection by its first picture or our word processors against the number of poorly-argued misspelled first drafts we’ve written, would we ever get to round 10, where something good emerges? Making failure cheap makes success possible.

[I like the free network service Identi.ca and cross-tweet there. I credit the Twitter team with recognizing the value in openness along many other important dimensions.]

The Federal Circuit held this week in Jacobsen v. Katzer, that Java Model Railroad Interface author Robert Jacobsen’s release of software under the Artistic License gave him the right to sue for copyright infringement those who distributed modified JMRI software without obeying the conditions of its license. The decision confirms an important cornerstone to many of the open source and free software licenses: Taking the work without accepting its license’s conditions is an infringement of copyright, subject to all of copyright’s enforcement options.

Users of free and open source licenses, or Creative Commons licenses for non-software works, offer their works to the world on a non-exclusive basis on a set of conditions. In the Artistic License, those conditions are:

provided that [the user] insert a prominent notice in each changed file stating how and when [the user] changed that file, and provided that [the user] do at least ONE of the following:

a) place [the user's] modifications in the Public Domain or otherwise make them Freely Available, such as by posting said modifications to Usenet or an equivalent medium, or placing the modifications on a major archive site such as ftp.uu.net, or by allowing the Copyright Holder to include [the user's] modifications in the Standard Version of the Package.

b) use the modified Package only within [the user's] corporation or organization.

c) rename any non-standard executables so the names do not conflict with the standard executables, which must also be provided, and provide a separate manual page for each nonstandard executable that clearly documents how it differs from the Standard Version, or

d) make other distribution arrangements with the Copyright Holder.

If you accept the conditions of the public license and follow them, as by making source code available and giving clear notification of changes from the original, your reuse of the original copyrighted work is licensed, no further action required. If you can’t work with the conditions of the public license, you’re always free to contact the copyright holder to negotiate alternate terms. What Jacobsen v. Katzer confirms, however, is that you’re not free to disregard the license conditions and yet claim your redistribution of the copyrighted work is non-infringing.

License v. Contract: Katzer, the taker who didn’t follow license terms, had argued that JMRI could sue only for breach of contract. The court explicitly disagreed. This is significant for licensors because copyright infringement is both simpler to prove: show unlicensed copying and substantial similarity to the original, rather than acceptance of a contract and damages from breach of its terms; and offers benefits such as statutory damages (no proof of loss required) and presumptions of “irreparable harm” that let the licensor get a preliminary injunction against continued infringing distribution.

Economics: The decision recognizes the economic advantages to choosing non-monetary forms of “compensation” for use of a publicly licensed work: “Copyright licenses are designed to support the right to exclude… The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition.” “The attribution and modification transparency requirements directly serve to drive traffic to the open source incubation page and to inform downstream users of the project, which is a significant economic goal of the copyright holder that the law will enforce.” The law does not mandate these terms by default, but if a copyright holder chooses to apply them to make his works more readily available on non-dollar terms, the law will enforce them.

Anti-FUD: Finally, the decision should help clear some of the “fear, uncertainty, and doubt” that opponents of free software try to sow around free and open source licenses. They may rarely have been tested in court because parties prefer to negotiate better solutions between themselves, but when tested, the licenses do hold up, to enforce the terms their users intend.

See also NYT, Lessig, WSJ.

Hasbro should have settled with the Scrabulous developers, not sued

While Hasbro was scrapping with Mattel over rights to develop an official online Scrabble (the two split geographic ownership of the Scrabble trademark), the Agarwalla brothers were building one. Their Facebook app, launched a year ago, won a loyal following among Scrabble fans who appreciated a chance to play the word game online, with friends in their social networks. Scrabulous listened to user suggestions, enhancing the online version to the point where it could boast 1.3 million monthly users and a 4.2 star rating, (as compared to 235k users giving Hasbro’s recently launched “beta” 1.2 stars).

Hasbro, however, responded to Scrabulous with a lawsuit, filed in the Southern District of New York, claiming copyright and trademark infringement, trademark dilution, and unfair competition. In response, the Agarwalla brothers closed the Scrabulous app to users whose IP addresses were located in the U.S. and Canada. (Since the Scrabulous website remains accessible from North American IPs, it’s possible the Facebook app was restricted under pressure from and on Facebook.) The EA Scrabble beta has been criticized as more visual flash than substance, without many of the playability features users had appreciated in Scrabulous.

Whether or not it has the legal right, I think Hasbro’s lawyers gave the company bad business advice. As I’ve said before, I believe Hasbro has no copyright claim, but might have (easily avoidable) trademark claims based on the “Scrabulous” name. If trademark’s value is goodwill, Hasbro’s federal complaint lost far more in goodwill than it preserved in control.

Hasbro may think it can ride this one out, that even 1.3 million Facebookers are only a small fraction of those it might interest in an “official” version later. Numerically, of course, that may be correct, but the raw numbers would miss the identities of those users.

I just came out of a three-day workshop on user innovation, where much research was presented on the value of “lead users” in innovation (see Democratizing Innovation for more). Lead users, such as Tim O’Reilly’s “alpha geeks,” push products and services to their limits, tweaking and often improving when their needs aren’t met by the stock components. Smart companies learn to listen to these users — while some of their demands will be unique corner cases, others are early indicators of where the masses will be soon — and where profits are to be made by a company that can supply needs and lead demand.

The Net makes lead-user innovation easier than ever, lowering the costs of communications channels to users sharing their enthusiasm and jointly developing ideas. They often freely reveal ideas and improvements that the savvy company can use in its own product development.

Some companies, O’Reilly’s among them, recognize the value of lead-user innovation and foster these user communities with conferences, forums, or support. When they take ideas and develop them further, to a mass audience now caught up to the curve, they do it so everyone feels fairly treated: the lead users get access to better products the company can produce at larger scale — and a platform for further innovation. Maybe the company even gets a chance to steer the “hackers” toward developments it prefers.

Others, however, see any hacking as “unauthorized,” to be shut down with cease-and-desist threats. They send nasty letters that may shut down the activity but also alienate the users who might show them where to go next. This is what Hasbro has done with its lawsuit against the Agarwalla brothers behind Scrabulous.

The Scrabulous users included Scrabble’s lead-user enthusiasts. Many fans posted to the application’s forum or “wall” (10,953 posts), giving the app developers (and anyone listening) both praise and suggestions for further enhancement. These lead users both told and showed where they wanted the game to go next. The Agarwalla brothers themselves were lead user innovators par excellence, spotting a need and filling it.

Hasbro’s lawsuit response to this outpouring of enthusiasm around Scrabble play quashed much of that lead-user drive. The posts on the EA “Scrabble beta” forum mix criticism of the company with complaints of bugs. Hasbro has neither the quality application nor the community around “official” Scrabble as the Agarwalla brothers had for Scrabulous.

There should have been enough value in Scrabulous to share — Hasbro does have US and Canada trademark rights to Scrabble, which imparted some value to the “Scrabulous” app, and Hasbro’s authorization could have allowed Scrabulous to build even further on the recognized brand. The Agarwallas have shown both programming talent and the ability to engage other enthusiasts. Together, they could create more value than either alone, and likely more than enough extra value to make it worth both their whiles to cooperate. As is, some of that value will migrate over to Wordscraper (Scrabulous’s revised form, which is fun but suffers from lack of interoperability with Scrabble), and some will head to authorized Scrabble, but some will dissipate entirely.

At its 32d International Junket Meeting last week, ICANN’s Board approved the GNSO Council’s recommendations for the eventual addition to the root of new generic top-level domains (gTLDs). This means that eventually, when the staff drafts, community comments upon, and Board approves implementation processes, those with deep pockets will have the opportunity to bid for new TLD strings.

In the meantime, though, the hype-machine was in full swing, with ICANN calling the move the “Biggest Expansion to Internet in Forty Years” in a newsletter mailing, since corrected. The BBC picked it up as “internet overhaul“; while CNN sent a crawler scrolling. New gTLDs may have value to Internet users, who will get a larger field in which to find memorable stable identifiers, but they’re hardly an “expansion” on the level of broadband rollout or protocol interoperability. Luckily, ICANN doesn’t have much to do with those actual innovations, so it can’t get in their way.

Before we get new generic TLDs, one of the initial purposes behind ICANN’s creation ten years ago, we still have to wait for ICANN’s staff to iron out the application process, including processes for resolving contention between multiple applications for the same string, and objections based on “legal rights of others,” the illusory “generally accepted legal norms relating to morality and public order that are recognized under international principles of law,” or “substantial opposition to it from a significant portion of the community to which the string may be explicitly or implicitly targeted.” (The At-Large Advisory Committee, from which I am non-voting liaison to the ICANN Board, had these comments. I speak only for myself in this blog.)

Then too, we have yet to see the application fees that will be levied upon applicants who wish to run this gauntlet. Even ICANN’s FAQ suggests we won’t be seeing the roll-out until mid 2009. So those of you holding your breath for .blog or .sex might want to relax and check back in a few months.

The New York Times reports that RealNetworks has introduced an “authorized” version of “Scrabble by Mattel” to Facebook, in an effort to compete with the enormously popular Scrabulous. CNet is puzzled, in part because the “official” app is unavailable in the United States or Canada.

For those not yet hooked, Scrabulous has been providing a Facebook application that lets Facebook friends play the game of Scrabble online. If the game numbers increment sequentially, it has served more than 2 and a half million games, and claims 629,256 daily active users.

In January, BBC and others reported that the Scrabulous team and Facebook had received takedown demands from Hasbro and Mattel (the two companies divide worldwide rights to the Scrabble trademark). Months later, however, Scrabulous remains online, probably because the threats’ legal merits are murky: there are few rights to “a game” as such.

Three kinds of intellectual property might protect aspects of a game — patent, trademark, and copyright — but each has limits that leave plenty of room for imitators and emulators.

“AT&T Inc. has joined Hollywood studios and recording companies in trying to keep pirated films, music and other content off its network — the first major carrier of Internet traffic to do so,” the LA Times reports. So customers will pay in added overhead and false positives, while filesharers adapt to evade the filtering (for both infringing and non-infringing traffic). Who wins? The sellers of filtering snake-oil tech, perhaps.