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.

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.]

Now Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works may not sound like a Broadway hit, but there was plenty of drama (for the copyright geek, at least). I live-tweeted and Identi.ca-posted the hearings, and offer a few highlights from the show here:

As at past runs (2000, ‘03, and ‘06), DVD’s CSS technological protections were the star attraction. Film and media educators, librarians, filmmakers, and creators of transformative works argued that they should be permitted to circumvent CSS to take DVD clips for fair and non-infringing purposes: film studies, media literacy, classroom teaching of the law or medical ethics, creation of commentary in the videographic “language” of the works to which they respond.

Rebecca Tushnet, law professor and founder of the Organization for Transformative Works called the anticircumvention rule a modern-day literacy test or poll tax: law-abiding creators are chilled by the welter of rules seemingly designed to privilege some users over others. Francesca Coppa and Tisha Turk showed the direct impact of the circumvention rule on women and minority creators offering alternative readings of mainstream culture, while educators noted that a too-narrow exemption might let teachers make art with media clips but forbid students from using the same techniques after graduation.

The hearings’ setup is a perfect theater of the absurd: First, the LOC is authorized to exempt non-infringing users of “classes of works” from the circumvention prohibition, but not to legalize the tools needed to circumvent access controls (which are prohibited by 1201(a)(2)). That leaves all participants dancing around the question of how users are to exercise their rights, if granted — “surreal,” as Jon Band put it. Likewise, we all ignore the ready availability of DeCSS and the near-instant posting of DRM-free versions of anything issued in “protected” format.

Then Steve Metalitz, representing a Group of 9 copyright industries, argued that the proponents of an exemption were taking the law too seriously if they were being chilled by the remote threat of an anticircumvention lawsuit. Was he really advocating that we disregard the law??

The proceedings jumped the line to farce when Fritz Attaway and a colleague from the MPAA pulled out a cinematic demonstration of just how to camcord a movie from your television screen. (You start with a $900 HD video camera, a tripod, a flat-screen television, and a room that can be completely darkened.) Tim Vollmer captured the whole scene on a video of his own. Mind you, this is the same industry that has lobbied to make a crime of camcording in movie theaters, telling us how to frame shots properly from the television. (As Fred Benenson notes, they’re also demonstrating DRM’s impossibility of closing the “analog hole.”)

Finally, Bruce Turnbull, representing DVD CSS-licensing body, DVD-CCA, said we were all in the wrong place (LOC, rather than Congress) talking about the wrong subject. 1201 isn’t a copyright protection, but a technology protection, aimed at protecting the “commercial viability of the technological protection measure.” This may be operationally true, but it would sure surprise many in Congress who put anticircumvention into Title 17.

Other acts in the drama included Chris Soghoian’s argument for access to media after authentication servers go defunct; and Alex Halderman and Blake Reid’s arguments that security researchers should be able to investigate the hazards of DRM to personal computer security. Up today: eBooks, dongles, and cell phones.

Other reviews: Pat Aufderheide, Rebecca Tushnet, and Temple’s Media Education Lab live twitter-stream

Susan is one of clearest thinkers I know on technology policy — which is critical to the continued development of technology (see, for example, her “Biology of the Broadcast Flag” (PDF), showing early the errors of technology mandates). She founded OneWebDay, an “Earth Day for the Internet,” and reminded a global community that we sometimes need to demonstrate the Web’s values in order to preserve them. She understands that the Net’s openness and accessibility has fueled innovation around it, and has thought deeply about how we (as public, industry, and government) can help to keep that spirit going.

I’m thrilled to celebrate Ada Lovelace Day with the news of Susan Crawford’s appointment! I look forward to the advice she’ll be able to provide on the development of the open Internet.

Isn’t the Internet grand? I’m at the ICANN meeting trying to keep ICANN from interfering with the flexibility that allowed that unexpected political outreach.

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…

The McCain campaign complains that its ads and web videos posted to YouTube have been removed on the complaint of news organizations whose footage was quoted:

[O]verreaching copyright claims have resulted in the removal of non-infringing campaign videos from YouTube, thus silencing political speech. Numerous times during the course of the campaign, our advertisements or web videos have been the subject of DMCA takedown notices regarding uses that are clearly privileged under the fair use doctrine. The uses at issue have been the inclusion of fewer than ten seconds of footage from news broadcasts in campaign ads or videos, as a basis for commentary on the issues presented in the news reports, or on the reports themselves. These are paradigmatic examples of fair use…

Of course the McCain-Palin team could counter-notify, but the DMCA’s 10-14 business day waiting period makes that option next to useless, when “10 days can be a lifetime in a political campaign.”

The campaign proposes an expedited process for political campaigns. EFF’s Fred von Lohmann calls for a broader solution, to protect the bottom-up political expression of citizens, not just those who would be our leaders. We shouldn’t have to battle bogus copyright claims to debate the debates. And we shouldn’t exempt politicians from the effects of their laws, so perhaps their copyright misadventures can give them a bit more sympathy for the rest of us. Let’s hope this fair use defense lasts longer than a DMCA waiting period.

Live tweeting and identi.ca-ing

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.

We see once again that the DMCA’s unbalanced takedown scheme encourages overzealous claiming of copyright, as an easy route to removal of unflattering content. With those already inclined toward enforcement zealotry, that pushes them far overboard.

Update 8/15: It appears that YouTube reinstated the video after the IOC indicated it did not really intend to pursue a copyright claim. Still sad that this level of assurance isn’t required before claims are filed in the first place.