November 29, 2009

New Paper: Anticircumvention Versus Open Innovation

Filed under: DMCA, code, copyright, innovation, law — wseltzer @ 3:38 pm

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.

September 16, 2009

Software Patent Research in Boulder

Filed under: innovation, law, markets, patent — wseltzer @ 4:34 pm

I’ve moved to Boulder, Colorado, for a year with the Silicon Flatirons Center for Law, Technology, and Entrepreneurship at the University of Colorado. I’m here to research software patents and user innovation (and no, innovative methods of trolling aren’t quite what I think the Founders meant by “promote the progress of science and the useful arts.”)

Boulder at sunrise Boulder’s a particularly good place for this study, because along with its beautiful mountains and open spaces, it has an intense entrepreneurial community, with frequent New Tech Meetups, Ignites, and informal gatherings. Plenty of innovation, how much fueled or swamped by patent?

I’m particularly interested in the cases of strategic behavior, where a patent is used not to secure limited-time exclusivity for the developer bringing a product to market, but instead as a bargaining lever, to spread FUD, or to extract value by threat. Are these indirectly promoting progress, such as by providing a market for research investment, or do they just get in the way? If you’re in the area and thinking about these issues, please let me know!

June 12, 2009

HADOPI: 3 Strikes Law Gets Its Own Strike

Filed under: Chilling Effects, Internet, censorship, copyright, law — wseltzer @ 3:13 pm

The French Constitutional Court Wednesday struck down the provisions of the HADOPI “graduated sanction” law that would have required Internet service providers to cut off subscribers access (while continuing to take their payments) after repeat warnings of copyright infringement.

The Court’s ruling recognizes the importance of Internet access and the necessity of due process — before access is cut off:

12. Whereas under Article 11 of the Declaration on the Rights of Man and Citizen of 1789: “The free communication of thoughts and opinions is one of the most precious rights of man: every citizen may therefore speak, write and print freely, except to respond to the abuse of this freedom in cases determined by law” that in the current state of communications and given the widespread development of communication services to the public online and the importance of these services for participation in democratic life and to the expression of ideas and opinions, this right includes freedom to access these [Internet] services;

See more at La Quadrature du Net.

Although French legislators say they will revise the law to leave its graduated warnings, the stripping of its automatic termination provisions is an important recognition that copyright cannot trump democratic communication.

UPDATE: While preparing for my SouthEast LinuxFest talk, it occurred to me that this is a good example of the power of generative demonstration: The hundreds of thousands of users participating in democratic communications via the Internet are all part of the wave that helped the Constitutional Court to see the Internet as a critical medium for speech and its access as a core human right. Five years ago, this decision would be unlikely, five years from now, it will seem inevitable.

August 15, 2008

Federal Circuit Confirms Key Free Software Licensing Practice

Filed under: code, copyright, events, law, open — wseltzer @ 2:08 pm

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.

July 25, 2008

Filterband is not Broadband

Filed under: FCC, Internet, law, markets, networks, open — wseltzer @ 5:47 am

A group of us filed formal comments with the FCC arguing that “free, filtered broadband,” as the FCC proposed to mandate in the AWS-3 spectrum auction, is not “Internet.” Comments here, in WT Docket 07-195.

Commenters strongly support the deployment and ubiquitous availability of broadband services across the country. We are concerned, however, that the Commisson’s proposed rule requiring content-filtering on broadband offered over the AWS-3 band destroys the “Internet” character of the service. The Internet is distinguished by its flexibility as a platform on which new services can be built with no pre-arrangement. While requiring filtering of known protocols in itself raises serious First Amendment conflicts, forcing the blocking of unknown or unrecognized traffic hampers both speech and innovation. We therefore urge the Commission to drop the filtering conditions from its Final Rule.

Thanks to all who helped with the Comments!

July 14, 2008

eBay Shines in Tiffany Trademark Fight

Filed under: Internet, law, markets, trademark — wseltzer @ 12:45 pm

In Tiffany v. eBay, decided today, the Southern District of New York gives helpful bounds to secondary liability for trademark infringement, saying eBay is not liable for its use of the term “Tiffany” nor for its sellers’ sales of counterfeit goods. Judge Sullivan’s careful analysis leaves the path clear for online marketplaces to flourish, putting enforcement burdens, where they belong, on trademark claimants.

First, the court finds eBay’s advertisement, through “Tiffany”-keyed adwords on Google and Yahoo! searches, to be “nominative fair use.” Some eBay sellers are offering genuine Tiffany merchandise, as trademark law recognizes is legitimate, and eBay has the right to use the brand name to identify them, rather than “absurd circumlocutions … [such as] ’silver jewelry from a prestigious New York company where Audrey Hepburn once liked to breakfast.’” Even if search keywords are “use in commerce,” therefore, the court finds them non-infringing.

Second, the court holds eBay not liable for the infringements of its users, under either direct or secondary liability theories. Instead, its contributory liability test looks much like the notice-and-takedown regime that the DMCA sets up for copyright: only specific knowledge of infringement can trigger liability, a “showing that a defendant knew or had reason to know of specific instances of actual infringement”; not the “generalized” knowledge of counterfeiting Tiffany would like to attribute to eBay. The court does not impose any prior monitoring obligation, implying only that a defendant must take appropriate steps after being notified of claimed infringement. (The court helpfully notes several times that Tiffany’s “Notices of Claimed Infringement” are just claims, not proof, and that some listings have even been reinstated after incorrect claims.)

“[T]he fact remains that rights holders bear the principal responsibility to police their trademarks.” Trademark holders are best situated to assess the provenance of their branded goods and to weigh the costs and benefits of enforcement. The marketplace benefits from a rule that leaves lawsuits to the endpoints, keeping intermediaries relatively safe and clear.

Finally, the ruling suggests that trademark law continues to function effectively in the Internet era. While trademark holders might like greater control, and (some) sellers might like greater leeway, trademarks serve as indications of origin even without enlisting intermediaries in the fight. Yet further reason why ACTA’s proposed “update” to anti-counterfeiting trade law should not put liability on Internet intermediaries.

Thanks for the link, Ray.

July 1, 2008

The RIAA has an ACTA Wish-List

Filed under: DMCA, Internet, copyright, law — wseltzer @ 9:32 pm

Remember ACTA, the draft proposed “harmonization” of copyright found on Wikileaks? In keeping with the view that harmonization is a one-way ratchet up, RIAA has some suggestions for the US Trade Representative.

J. Online Infringing Activities

Parties shall:
1. Provide exclusive rights under copyright to unambiguously cover Internet use.
2. Establish appropriate rules regarding liability of service/content providers:
(a) Establishing primary liability where a party is involved in direct infringement; and ensure the application of principles of secondary liability, including contributory liability and vicarious civil liability, as well as criminal liability and abetting if appropriate.
(b) Establishing liability for actions which, taken as a whole, encourage infringement by third parties, in particular with respect to products, components and/or services whose predominant application is the facilitation of infringement.
3. Provide remedies and injunctive relief against any entity that:
(a) Creates or otherwise maintains directories of infringing materials;
(b) Provides “deeplinks” to infringing files;
(c) Commits any act, practice or service that has little or no purpose or effect other than to facilitate infringement, or that intentionally induces others to infringe (specifically allowing proof of “intent” by reference to objective standards–i.e. a reasonable person would surmise such an intent);
4. Require internet service providers and other intermediaries to employ readily available measures to inhibit infringement in instances where both legitimate and illegitimate uses were facilitated by their services, including filtering out infringing materials, provided that such measures are not unduly burdensome and do not materially affect the cost or efficiency of delivering legitimate services;
5. Require Internet service providers or other intermediaries to restrict or terminate access to their systems with respect to repeat infringers.
6. Establish liability against internet service providers who, upon receiving notices of infringement from content provides via e­mail, or by telephone in cases of pre-release materials or in other exigent circumstances, fail to remove the infringing content, or access to such content, in an expeditious manner, and in no case more than 24 hours; or
Provide that, in the absence of proof to the contrary, an internet service provider shall be considered as knowing that the content it stores is infringing or illegal, and thus subject to liability for copyright infringement, after receiving notification from the right holder or its representative, normally in writing, including by email or by telephone in the case of pre-release materials or in other exigent circumstances.
7. Establish, adequately fund and provide training for a computer crimes investigatory unit.
8. Provide injunctive relief against intermediaries whose services are used for infringing activities regardless of whether damages are available.
9. Establish policies against the use of government networks and computers, as well as those networks and computers of companies that have government contracts, to prevent the use of such computers and networks for the transmission of infringing materials, including a ban on the installation of p2p applications except, and to the extent to which, some particular government use requires such installation.
10. Consideration to be given to the following: possible rules on data retention, the right to information giving right holders access to data held by ISPs in the preparation and course of proceedings including in civil proceedings, and availability of complete and accurate WHOIS data

RIAA’s proposal is a compendium of everything they dislike about rulings that have gone against them: the lack of a “making available” right (Atlantic v. Howell); the requirement of knowledge before non-volitional actors such as ISPs can be held liable (RTC v. Netcom); the provisions of safe-harbor that let ISPs avoid liability (17 USC 512); the limitation of vicarious liability to situations where the proprietor has a right and ability to control; the possibility that non-infringing use could save a technology with infringing uses (Betamax); the status of hyperlinks (Perfect 10 v. Amazon).

Add in codification of stronger versions of rulings they like such as Grokster, and you’ve got a prescription for utterly insane copyright law! As the LA Times’ Jon Healy puts it, the RIAA’s ACTA would turn ISPs into enforcers, when they should be simple conduits.

Let’s hope enough ISPs, tech companies, public interest groups, libraries, educators, and friends can keep this RIAA wishlist from becoming our nightmare. We should start a corresponding wish-list, extravagant but alternate-universe plausible, would include on the other side. I’d start with:

  • Require knowledge of the infringing character of the use as an element of copyright infringement. (Current copyright law is strict liability, meaning you can be held liable for infringement even if you did not know you were copying material without authorization.)
  • Limit copyright infringement to commercial exploitation, as recommended by Cato’s Tim Lee. Non-commercial use would be a complete defense.
  • Add your own!
  • June 25, 2008

    The FCC Stumbles into Internet Filtering

    Filed under: Add new tag, censorship, law — wseltzer @ 4:46 am

    What could be bad about free wireless Internet access? How about censorship by federally mandated filters that make it no longer “Internet.” That’s the effect of the FCC’s proposed service rules for Advanced Wireless Service spectrum in the 2155-2180 MHz band, as set out in a July 20 Notice of Proposed Rulemaking.

    Acting on a request of M2Z Networks, which wants to provide “free, family-friendly wireless broadband,” the FCC proposes to require licensees of this spectrum band to offer free two-way wireless broadband Internet service to the public, with least 25% of their network capacity. So far so good, but on the next page, the agency guts the meaning of “broadband Internet” with a content filtering requirement. Licensees must keep their users from accessing porn:

    § 27.1193 Content Network Filtering Requirement.
    (a) The licensee of the 2155-2188 MH band (AWS-3 licensee) must provide as part of its free broadband service a network-based mechanism:

    (1) That filters or blocks images and text that constitute obscenity or pornography and, in context, as measured by contemporary community standards and existing law, any images or text that otherwise would be harmful to teens and adolescents. For purposes of this rule, teens and adolescents are children 5 through 17 years of age;

    (2) That must be active at all times on any type of free broadband service offered to customers or consumers through an AWS-3 network. In complying with this requirement, the AWS-3 licensee must use viewpoint-neutral means in instituting the filtering mechanism and must otherwise subject its own content—including carrier-generated advertising—to the filtering mechanism.

    (b) The AWS-3 licensee must:

    (1) inform new customers that the filtering is in place and must otherwise provide on-screen notice to users. It may also choose additional means to keep the public informed of the filtering, such as storefront or website notices;

    (2) use best efforts to employ filtering to protect children from exposure to inappropriate material as defined in paragraph (a)(1). Should any commercially-available network filters installed not be capable of reviewing certain types of communications, such as peer-to-peer file sharing, the licensee may use other means, such as limiting access to those types of communications as part of the AWS-3 free broadband service, to ensure that inappropriate content as defined in paragraph (a)(1) not be accessible as part of the service.

    There are clear First Amendment problems with government-mandated filtering of lawful speech. The Supreme Court reminded us that a decade ago, striking the Communications Decency Act, the first unconstitutional effort to censor the Net. It’s still lawful for adults to view and share non-obscene pornography, and still unlawful for the government to restrict adults from doing so. But this rule digs deeper architectural problems too.

    Like or hate lawful pornography, we should be disturbed by the narrow vision of “Internet” the filtering rule presupposes, because you can’t filter “Internet,” you can only filter “Internet-as-content-carriage.” This filtering requirement constrains “Internet” to a limited subset of known, filterable applications, ruining the platform’s general-purpose generativity. No Skype or Joost or Slingbox; no room for individual users to set up their own services and servers; no way for engineers and entrepreneurs to develop new, unanticipated uses.

    Why? To block naked pictures among the 1s and 0s of Internet data, you need first to know that a given 11010110 is part of a picture, not a voice conversation or text document. So to have any hope of filtering effectively, you have to constrain network traffic to protocols you know, and know how to filter. Web browsing OK, peer-to-peer browsing out. You’d have to block anything you didn’t understand: new protocols, encrypted traffic, even texts in other languages. (The kids might learn French to read “L’Histoire d’O,” quelle horreur!) “Should any commercially-available network filters installed not be capable of reviewing certain types of communications, such as peer-to-peer file sharing, the licensee may use other means, such as limiting access to those types of communications as part of the AWS-3 free broadband service, to ensure that inappropriate content … not be accessible as part of the service.”

    The Internet isn’t just cable television with a few more channels. It’s a platform where anyone can be a broadcaster – or a game devleoper, entrepreneur, activist, purchaser and seller, or inventor of the next killer app. Mandated filtering is the antithesis of dumb-pipe Internet, forcing design choices that limit our inventive and communicative opportunity.

    Edit M2Z’s prepared text to just say no to filterband.

    See also Scott Bradner, David Weinberger, Persephone Miel.

    June 6, 2008

    DMCA “Repeat Infringers”: Scientology Critic’s Account Reinstated after Counter-Notification

    Filed under: Chilling Effects, DMCA, copyright, law — wseltzer @ 6:56 am

    The Scientology critic known as “Wise Beard Man” returned to YouTube this week after successfully filing counter-notifications to copyright claims that had earlier been made against his account. The takedown and delayed return illuminate another of the lesser-known shoals of the DMCA safe harbor, the 512(i)(1)(A) “repeat infringers” consideration.

    As Mark Bunker, the critic, describes it, he had initially set up a YouTube account under the name XenuTV, where he posted clips including commentary on Scientology. Some of these clips came from other sources, and two of them attracted DMCA takedown requests from Viacom, for “Colbert Report” clips in which Stephen talked about Scientology. These might well have been fair use, or he might have chosen to remove them, but as Bunker says, “Before I could act on the takedown notices and remove the offending clips, the accounts were canceled.”

    Bunker began using a second YouTube account, XenuTV1, posting only clips of entirely his own material. His advice to the “Anonymous” critics made him a sort of elder statesman to the movement, and his account attracted over 10,000 subscribed viewers.

    In April, however, this second account was abruptly canceled. Apparently, YouTube had discovered that it was Mr. Bunker’s second, after a canceled first, and interpreted the DMCA to compel termination of this second account.

    The provision they were invoking was 512(i)(1)(A), which sets some conditions for service provider eligibility for shelter in the DMCA safe harbor:

    “The limitations on liability established by this section shall apply to a service provider only if the service provider—
    (A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers”

    Now the DMCA does not define “repeat infringers,” and no cases have yet done so, so it’s left to ISPs to determine how to do so. Copyright claimants urge that two takedown notices make someone a “repeat infringer” whose account must be terminated (let’s hope it’s just the account, and not the subscriber himself!). In contrast, noted copyright scholar and attorney David Nimmer suggests that the provision should be construed strictly, to require “repeat infringer” sanctions only against those who have more than once been found liable for copyright infringement after legal proceedings. Nimmer, Repeat Infringers, 52 J. Copyright Soc’y 167 (2005). Nimmer also notes that unless “repeat” is limited to the service at issue, all the major motion picture studios would be ineligible for online posting accounts, since all have had multiple copyright infringement judgments rendered against them.

    Nor does the DMCA define “appropriate circumstances” for account termination, so mitigating factors might well be raised against the termination of any particular account. The DMCA pre-condition is open to interpretation.

    It appears, however, that YouTube determined that the two Viacom notices (Feb. 2, 2007, and Jan. 15, 2008) levied against Mr. Bunker’s XenuTV account marked him as a “repeat infringer.” Therefore, to maintain safe-harbor eligibility, YouTube felt compelled to terminate the second account, XenuTV1, upon recognizing that it was the same individual. Notwithstanding a complete absence of copyright claims against the XenuTV1 account, YouTube apparently concluded the risks of continuing to host the marked “repeat infringer” were too great.

    Notably, 512(i) is a general precondition to the safe-harbor. Failure to “adopt[] and reasonably implement[]” a repeat infringers policy in one instance could be used against a provider as an argument to deny it the benefits of safe-harbor protection in an entirely unrelated case. YouTube’s risk calculation in responding to Mr. Bunker’s accounts, therefore, was not merely whether Viacom would sue over the Colbert clips Mr. Bunker had posted and YouTube removed, but whether entirely different copyright holders, complaining about other accounts’ postings, would invoke a failure to remove Mr. Bunker’s account as non-compliance with the DMCA’s eligibility requirements and seek to hold YouTube liable for other users’ infringements.

    Mr. Bunker’s story concludes successfully, however, thanks in part to Viacom’s good sense. YouTube invited Mr. Bunker to file counter-notifications for the Viacom clips, and he did so in mid-May, asserting that the “mistake or misidentification of the material” was in not recognizing its use as fair. Viacom’s acceptance of the counter-notifications allowed YouTube to remove the “infringer” stain from Mr. Bunker’s account. For his part, Mr. Bunker says he was supported in his counter-notifications by the public messages of support and group effort to contact YouTube and Viacom to lay the groundwork, including those of VictoireFlamel and The Masked Analyst, who has a series of videos explaining the DMCA and counter-notification. Bunker reports that Viacom’s attorneys said they “wouldn’t be hard-nosed about fair use clips.”

    Ten to 14 days after the counter-notification, therefore, when Viacom did not go to court to press its original copyright infringement claims, YouTube allowed the XenuTV accounts’ reinstatement.

    While Mr. Bunker’s story ends happily for fair use, another story this week illustrates the danger of taking DMCA notifications as the mark of “repeat infringement”: University of Washington researchers reported getting DMCA takedowns against their laser printers, allegedly for sharing copies of “Iron Man” and “Indiana Jones.” MPAA agents sent DMCA notices without any verification that material was available from the accused IP addresses, much less that the materials infringed copyright. Meanwhile, universities report that they get DMCA takedowns alleging infringement by “shared folders” even when filters such Audible Magic make sharing impossible by blocking any transmission of files.

    If the DMCA as a whole is to have any coherence, providers shouldn’t lose DMCA protection or subscribers lose their hosting based on such flimsy allegations.

    June 5, 2008

    NYT Editorial Supports Copyright Rationality in Sports

    Filed under: law, sports — wseltzer @ 12:34 pm

    The New York Times has a nice editorial today on the Supreme Court’s denial of cert to the MLB’s claims to own fantasy baseball. That leaves the case where the Eighth Circuit did, saying that fantasy leagues created around major-league baseball facts are fair game, not the property of MLB. Great to see a major new outlet weighing in against the expansionary claims:

    In recent years, corporations have been aggressively pushing the bounds of intellectual property — extending the length of copyrights to unreasonable lengths, for example, and patenting seeds. In the case of fantasy baseball, the courts have rightly cried foul.

    The biggest fantasy in this case was Major League Baseball’s claim that its fans should pay to talk about the game.

    In another editorial closer to home, Professor and Berkman Fellow Harry Lewis criticizes copyright’s encroachment on education and culture in the Harvard Crimson.

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