July 28, 2010

Jailbreaking Copyright’s Scope

Filed under: DMCA, code, markets, open, phone — wseltzer @ 8:29 am

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.

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!

October 28, 2008

Google to Settle Book-Scanning Suit with Publishers, Authors

Filed under: copyright, innovation, markets — wseltzer @ 11:21 am

As I learned via Twitter this morning (thanks, Tim O’Reilly), the Authors’ and Publishers’ class counsel have reached a proposed settlement of their lawsuits against Google’s book scanning program. Early press reports say Google will pay about $125 million.

There are some fascinating pieces to the settlement agreement, including some that look like private implementations of infrastructure you’d really expect government to provide: a registry of copyrighted works, a quasi-orphan-works safe harbor for good-faith use of works believed to be in the public domain. There are provisions for school and library access, and a marketplace, a clearing-center for Google to share revenue from commercial uses it makes.

I worry about the effects on competition — Google’s high settlement payments are barriers to entry by anyone else. Though it’s plausible no one had the resources or spine to compete with Google regardless, a judicial determination that the use was fair would have enabled more competition in parallel and distinct library offerings. Now, Google cements its advantage in yet another field. (And of course, with the circularity of “effect on the market” testing, makes it harder for someone else to claim fair use.)

More to come on closer reading…

September 23, 2008

Won’t someone think of the children’s speech?: Internet Technical Safety Task Force

Filed under: Berkman, Internet, censorship, markets, privacy — wseltzer @ 10:04 am

I’m at Berkman for the open meeting of the Internet Technical Safety Task Force, a group convened at the pressing of state attorneys general to address children’s safety on social networking sites. The day kicked off with statements from Mass and Conn. attorneys general, to be followed by presentations from technology companies offering “solutions” and suggestions.

Live tweeting and identi.ca-ing

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 2, 2008

ICANN’s New gTLD Process: Hype and Reality

Filed under: ICANN, Internet, code, markets — wseltzer @ 3:29 pm

Domainopoly 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.

September 27, 2007

Copyright and the University: 2 talks

Filed under: law, markets, privacy — wseltzer @ 12:57 pm

I’ll be discussing copyright at Cornell University today, at 3:00 and 7:30 p.m., talking about the university’s role in promoting balanced cultural and technology policy. Join the webcast if you like. If you add questions or comments to the blog, I’ll even try to address them.

June 1, 2007

is2k7: Weinberger on Knowledge, Metadata, Authority

Filed under: markets — Wendy @ 5:24 pm

“It’s too early for us to be realistic,” David Weinberger says in closing is2k7. Where reality is binary, forcing us to categorize each piece of information, digital networked storage lets us add metadata along multiple axes. We shouldn’t rush to cram it all back into real boxes. Instead, we can build new structures, sometimes adding metadata to digital contents, sometimes using the “contents” as metadata with regard to another question we’re asking.

That lack of hierarchy sounds threatening to some, perhaps including universities, who are accustomed to being the authorities. Online, we find new sources of authority, though we also have to learn and re-learn when not to trust both online and offline sources. The university’s challenge, and all of ours, is to engage with these new sources of information and meta-information. The answer to “too much information” is likely not to shut off the spigot but to hand out better filters and filter-building toolkits (aggregators, search engines, databases, social network tools, and mashups).

I’m headed to Everything Is Miscellaneous for more.

May 26, 2007

IS2K7: The University, Internet & Society

Filed under: markets — Wendy @ 5:16 am

Next week, Harvard is hosting the Internet & Society Conference 2007: UNIVERSITY – Knowledge Beyond Authority.

University: Knowledge Beyond Authority at Harvard Law School
The Internet & Society Conference is positioned to generate questions, insight and solutions from diverse perspectives across the landscape of University, with a focus on the role of University as an institution. We seek to establish University as a collective force much like ‘Government’ or ‘Private Enterprise’ in its ability to negotiate and compromise for our needs in the digital environment.

I’ll be there to discuss some of the issues in my Harvard Crimson op-ed: How should the university respond to copyright claims against its students, in a manner that respects both law and the university’s educational mission? If you’d like to, please join the working group or engage with questions online.

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