February 2003 Archives

I've been working on IP licensing issues, and Creative Commons licensing issues in particular, for the last week or so. I'm writing a major revision of my first entry on the topic. However, I want to do more thorough background research. If the roads are in good enough condition tomorrow, I'll go to the law library and pull a few recent books on licensing to see if they help to fill in the gaps that I perceive in the work I've done so far.

Thanks to all for the comments you've sent.

I can't be the only one who cringed during Will Bailey's description of the scaled tax system on The West Wing last night. He described the percentage brackets as percentages of taxable income instead of marginal rates. I wonder whether Sorkin did it that way because it would take too long to explain it accurately or if he did it that way because he didn't know better. I've got a hunch it's the latter, but I'm not going to run the videotape back and check the whiteboard math to see.

(Yes, we have a VCR. I realize that may appear quaint to some of you out there....)

Liz Lawley wonders why people find the propagation potential of the Creative Commons license so alarming.

But the CC licensing does not restrict you from profiting from your works. It allows others to distribute your copyrighted work�typically with attribution, and not for commercial use (that appears to be the version most folks choose).

If my weblog content is broadly distributed, with attribution, it helps me. It extends my reputation, makes me recognizable. And if I later choose to write a book that draws from my weblog material, I think it�s that much more likely to have buyers.

She's got a good point. I don't know what Cory Doctorow's decision to release Down and Out in the Magic Kingdom has done to his and his publisher's sales, but it probably hasn't hurt them, and it may have helped. Meanwhile, it did increase his overall circulation, and bought him -- to use his own concept -- massive whuffie. Would that very idea have had the same circulation had he released the book with ordinary distribution? I doubt it.

I don't fall into any sort of 'camp' as to whether one should or should not select Creative Commons licensing. I'll be adjusting the next revision of my piece on the impact of Creative Commons licensing to reflect that better. I do believe that the licensing decision should not be a casual one, but I believe that for any legal decision. Once the discussion has gone a little further, I also want to add a section discussing the kinds of reasons one might want to choose a Creative Commons license or some other license. Maybe once that's in there I can call it version "1.0."

Liz asks, "Can someone point me to an example of specific harm�past or anticipated�that they see resulting from these licenses?" It's good to remind ourselves that Creative Commons licensing is an experiment. We don't know what the long term effects will be in any case. The very nature of experimenting involves undertaking some degree of risk in order to discover how great the reward may be, and under what circumstances that reward will arise. Some people releasing work under the Creative Commons license will experience a net reward. Some will not. It will often be hard to tell, because a fair proportion of the reward coming from a Creative Commons license will likely be noneconomic, or at least nonmonetary.

Phil notes, "Suppose you write a heartfelt and deeply personal post about the difficulties of academic life. If someone from academic-challenges.com asks to republish it, you would probably say yes. If someone from whiney-pointyheads.com asked, you would probably say no, if it wasn't for the fact that you've already said yes by virtue of your CC license." Right now one can limit those uses for one's own work. Whether that reason alone is a good one to choose not to offer a general license is a matter for separate argument. The fact remains that under ordinary copyright one has a degree of control over that kind of use, while one does not under the Creative Commons license.

Liz also points out,

Jonathon, in his post today, says that CC �does a shithouse job of explaining why people might choose not to use their license � But that�s less of an issue, now that Tim Hadley has done the job properly.� But I don�t see that in Tim�s analysis. It�s not a discussion of why you wouldn�t want to use the license�it�s a discussion of what the legal boundaries of that license are.

She's right about that. Like I said, I would like to add a section that can help people organize their own reasons for choosing licenses. Perhaps that would even have to be a different article. But what I wrote on Sunday does not do that, though it may break the deal for some people and close it for others. Before I start writing that new section, I think I want to watch the conversation play out a bit more. The topic might turn out to be too much to try to add to the current piece.

In the end, people will have their own reasons for their licensing decisions. I want simply to explain what I think is the most likely legal interpretation of the license so that people can better imagine how it might or might not work for them. [As always, I have to add the remark that people who have a lot riding on the licensing decision or want to talk about the quirks in a particular licensing scenario should consult an attorney.]

Shoes washing up on a beach near-- well, probably near someone:

ANCHORAGE (AP) - Thousands of pairs of Nike basketball shoes are washing up on beaches from Washington state to Alaska after spilling from a container ship in Northern California.

...

"Nike forgot to tie the laces, so you have to find mates," said Dr. Curtis Ebbesmeyer, an oceanographer who tracks sneakers, toys and other flotsam across the sea. "The effort's worth it 'cause these Nikes have only been adrift a few months. All 33,000 are wearable!"

I guess the "air" really does have a purpose. Meanwhile, the idea that these shoes might be wearable even after months in salt water makes me wonder what kinds of chemicals they treat them with.

Version 2.6 of the popular Movable Type weblogging software, which I use on this site, introduced code allowing users easily to add a Creative Commons license to their weblogs. While many people think that's a great way to try to popularize the Creative Commons licensing systems, a few writers have worried that people will license their work haphazardly, without realizing that the Creative Commons license brings about an irrevocable commitment. This entry discusses the extent and some of the limitations of that commitment.

The New York Times reports that the U.S. Air Force Space Command is contemplating arming some of its intercontinental ballistic missiles with conventional weapons. I imagine that an ICBM with an appropriately designed, guided, conventional re-entry vehicle could be a very effective rapid-delivery system. But remember, launching even one of these things sets off alarms all over the world. Talk about tooth-grinding anxiety as the Space Command tries to convince Beijing that, no, it's not nuking anybody, certainly not China, no, it's just delivering conventional weapons to North Korea, yes, really.

I've long told myself that I wouldn't be caught gushing online about how great RSS feeds are, but like so many others in the blogosphere, I've become rather RSS-dependent.

I have 108 feeds subscribed in Syndirella right now. I tried out Syndirella on a whim after seeing it mentioned on Jerry Lawson's net.law.blog. I'd been using Aggie and had tried Amphetadesk, but I was getting tired of viewing the results in the form of a webpage, and Aggie's RSS parser was a tad sensitive. After two days, Syndirella is working rather well. People who want to try it should follow the advice here, and grab the programmer's "blog" version rather than the "webpage" version. He puts links to the most recent testing versions in his blog rather than on the webpage.

The only problem I've run into now is that a few blog*spot RSS feeds don't seem to be updating the way they should, and that's definitely not an aggregator problem. Perhaps this results from transitions following on the Google purchase of Pyra Labs. In any event, the How Appealing RSS file hasn't been updated since early Thursday. (The site most certainly has!) For a legal blogreader, that's the worst site to be out of touch with. Here's hoping that's patched up soon. Now I'll actually have to remember to check manually! What a disgrace!

Prof. Brad DeLong has been assailing Bush's proposed budget since it first appeared. To check himself, DeLong's been trying to find an economist who thinks Bush's fiscal policy makes sense. He can't find anyone.

Scary.

I'll stop talking about the FCC eventually. First, I direct you to Kevin Werbach's interpretation of what the FCC was thinking and what it got wrong:

The trouble is that you can't just give the tech vendors something, and the incumbent carriers something, because they play different roles. Intel, Cisco, and Microsoft won't be the ones building the networks. The telcos have to deploy the infrastructure, and they won't do that if they feel wronged by the FCC's overall decision and have no competitive pressure. The order does precisely that. It re-energizes the Bells' obstructionist strategy, and it takes away near-term competitive threats from independent DSL providers that might have spurred them to invest anyway.

Verizon Senior VP Tom Tauke's quote says it all: "The future of telecommunications is broadband, and on this issue the commission appears to have moved in the right direction but may have important details wrong. Moreover, the future investment in the wireline network is tied to a strong financial base for the overall business." Doesn't sound like someone planning to "jump start investment in next-generation networks," as Commissioner Martin predicted.

That's what I worry. Meanwhile, Dana Blankenhorn thinks that there's still an opportunity for intermodal competition for companies that aggressively plan and develop those markets now. He also thinks it's likely that state regulators will turn the screws on incumbent providers if they don't actually roll out fiber to the home.

This leaves the Wireless ISP space wide-open. Earthlink has an opportunity to become a mega-WISP. It must extend its footprint, and work to gradually switch its present DSL and cable customers to wireless. ...

Current WISPs say their biggest problem lies in backhauling traffic from their customers to the Internet core. Even when competitive fiber exists, they can't afford to step it down from the 10 Gpbs speed of a single optical fiber to the 11-54 Mbps their customers need.

This is Covad's opportunity. Multiplex the fiber, then use wireless cable to get those signals to WISP central offices. ...

I have to confess I'm a little confused by the term "wireless cable."

Dave Winer linked both these postings on Scripting News, and I suspect that more links on the topic will appear there.

CNET is running a Reuters report on the 3GSM World Congress in Cannes, France. This is a gathering of people from all the companies that have stakes in next-generation mobile telephony.

The article reports that telecommunications companies have become wary of further investment in "3G" technologies when there isn't a lot of evidence that there's a lot of money to be made in the market.

"3G technology is ready. The thing is now to turn it into a mass market product," said Kurt Hellstrom, the head of the world's largest mobile network maker, Ericsson of Sweden. "Many different players need to work together," he said.

These companies are all looking for the "killer application" or applications that will catapult demand for high-speed data transport over mobile phones.

I want high-speed mobile data, but I don't want it for little telephone cameras, or to download games to a phone, nor really for anything else to do with the phone. I'll want a 3G phone when I can use it as a data conduit for more flexible devices. For example, I want to be able to set a laptop computer (or handheld device) next to my wireless phone and be able to access the internet over a high-speed connection. Some phones will have (already have?) the Bluetooth wireless technology to make this possible, though I don't know how secure Bluetooth is (I don't want the guy across the table with his laptop using my phone connection without my permission.) Perhaps the phone and the PDA will be built into one device, in which case it needs to be full-featured as far as both are concerned-- all the benefits of a phone and all the benefits of a PDA.

I don't want a fancy videophone. I don't want a camera in my phone. I want something to use with my computer. I don't know how much effort the wireless companies are putting into that market, though, or if it's even much of a market.

Wow, I guess it's really been a big day for the telecom topic here. I ought to find something else to talk about.

Dan Gillmor writes about today's FCC decision, saying that we can't count on intermodal competition to keep the ILECs down:

The Bells' dishonesty in this debate has been egregious, if unsurprising given their history. They continue to claim that they're forced to sell access to their copper lines at a loss. If this were true, they would be moving in on each others' territories, offering competing services. They haven't, and I'll bet they won't.

Maybe none of this matters. Maybe competition from wireless will break the power of the phone and cable monopolists. Or maybe municipalities and other governments and electric or gas utilities will start deploying fiber competitively. Nothing would be better for America than to see the Bells humbled, once and for all; they loathe any kind of innovation that threatens their annuity income.

But we are taking a big chance here. If the phone giants can leverage their power in new markets, we are going to be in for some difficult times ahead.

Ernie the Attorney has a few notes on how not to use technology as a law practice marketing tool.

What's wrong with advertising that everyone working at the firm has a computer on his or her desk is the unspoken implication that there is something at all novel about that. I wouldn't trust any firm that didn't have a computer on everyone's desk. The fact that a firm finds some novelty in this notion suggests that some of those attorneys perhaps don't know what to do with the computers on their desks. Ernie says it all: "What's interesting about these public displays of techno-affection is not that they are so pathetically out-of-step with a true vision of what technology can do in a law firm."

CNET is also reporting today that many of the major record labels have sued Bertelsmann because of how it handled its purchase of Napster.

The complaint alleges that Bertelsmann "was fully aware of the critical role its funding played in facilitating infringement by Napster users" and therefore "systematically participated in, facilitated, materially contributed to and encouraged" illegal music file swapping.

The music publishers also charge that Bertelsmann had the ability to halt Napster services but instead kept it "operating in order to preserve Napster's user base for Bertelsmann's own commercial advantage."

The case is in the U.S. District Court for the Southern District of New York. Unfortunately, that court only offers the old dialup version of the Public Access to Court Electronic Records (PACER) system, so I can't get in and look at the docket information.

As predicted, today's Federal Communications Commission meeting resulted in newly relaxed versions of the regulations that require incumbent telephone providers to lease their network capabilities to competing companies. Ben Charny has a CNET article on the matter.

The Bells will still have to open up their phone lines to local competitors--at the steeply discounted rates the regulations require. But the rules will be off-limits to any new broadband networks the Bells plan to build, the FCC decided.

Also, the states will get more clout in deciding whether the Bells should be required to open up their networks, and in what locations. The FCC had been the only agency with the authority to handle requests to offer service in new markets. Under the new rules, the state�s Public Utility Commissions will do most of the deciding instead. States had been clamoring in the past few weeks for just such a decision, and insiders believe their push for power helped topple what seemed like a Powell victory.

Now everyone involved has to take the rest of the day to read the FCC's report and figure out the details of the regulations.

FCC website with press releases and Commissioner statements: www.fcc.gov.

LiveJournal has been under a Distributed Denial of Service attack since yesterday afternoon. The latest is at status.livejournal.com, which presently reads:

At 3:57 am EST on Thursday, February 20th, Admin lisa writes :

LiveJournal is currently under a Distributed Denial of Service attack, and has been since about 5:30pm PST (1:30 AM GMT) tonight. We have been working with our upstream providers (including several major backbones) to filter traffic as quickly and effectively as possible.

Due to the fact that a DDOS attack involves potentially tens of thousands of hosts all working together against a single target (in this case, us), it is extremely difficult to find one group of IP addresses to block to prevent the attack from affecting our services any further. Our upstream providers are currently filtering somewhere around 1/4 of the IPs on the internet from reaching LiveJournal. Unfortunately, these filters also block legitimate traffic from some users. When the attack has subsided we will remove the filters.

We will continue to monitor and block hosts as we gather more information regarding this attack. We seriously apologize for the inconvenience, and hope you understand we are doing everything in our power to get the site back functioning as normal.

LiveJournal offers some nice, easy-to-use tools. Unfortunately, it presents a big target as well. It's still a little beyond me why someone would select LiveJournal in particular as a DDOS target. I know it's unlikely, but I hope they figure out who's responsible for the attack.

Eugene Volokh laments:

Sent to the editor:

After all, the Constitution is full of �values� and �interests.� It talks not just of democracy or equality, but also the war power, private property, federalism, religious freedom, and more.

Received from the editor (and note that this is not the Harvard Law Review, with which I had a very good editing experience):

After all, the Constitution is full of "values" and "interests." It talks not just of democracy or equality, but also the war power, private property, federalism, religious freedom, and more.[fn]

[fn:] See generally U.S. Const.

Noooo! Noooo!

Law reviews and journals tend to obsess about footnoting. The obsession begins in a healthy (for lawyers) fashion, motivated by a desire to check and promote the credibility of the author and thereby the journal. From this starting point the obsession takes a nasty turn. The editors and staff of the law review may begin to believe that every positive assertion, no matter how general or accepted within the legal community, demands a footnote. This seems to be what happened to Prof. Volokh's article. Authors and editors may also decide that sheer volume of footnote content is what gives the article "professionalism" or "credibility." These authors and editors will invest vast amounts of energy in below-the-line text. The body text then tends to come out with an odd, stilted flow of information and argument, while the page overflows with footnote text. Consider in this regard Gil Grantmore, Mark My Words, 3 Green Bag 2d 121 (2000) (poking fun at this habit, nearly the entire text of the article appears within a footnote). It doesn't occur to them that important text should be above the line and unimportant text should be excluded. In both of these cases, participants who think these behaviors go way over the top tend to acquiesce in the face of arguments that they're "expected" even if they're silly.

Meanwhile, skilled writers and scholars receive their 'reads' and lament, "Noooo! Noooo!"

I hope Prof. Volokh says something about this in his upcoming book on academic legal writing.

John Maltbie at actualmalice.com reports that the Supreme Court of Idaho recently decided a case limiting its tort of invasion of privacy on First Amendment grounds. The plaintiff sued the Idaho Statesman, a newspaper, when the newspaper published a historical report on a 1950s homosexuality scandal in which the plaintiff had allegedly been involved. The Court considered two claims: "Invasion of Privacy by Intrusion" and "Invasion of Privacy By Public Disclosure of Embarrasing Private Facts." The plaintiff had withdrawn a "false light invasion of privacy" claim, and the court quickly discarded the plaintiff's "negligent and/or reckless infliction of emotional distress" claim after analyzing the other claims.

With regard to the first claim, the Court held that "The examination of a public court record cannot be the basis of a claim for invasion of privacy by intrusion." Uranga v. Federated Publications, Inc., d/b/a The Idaho Statesman, (Idaho 2003) (slip op. [PDF] at 4). The court explained that the invasion of privacy tort arises not when private facts are exposed to public view, but when there is an objectively offensive intrusion into personal solitude or seclusion, "either as to [one's] person or as to [one's] private affairs or concerns." Id. There is no such thing as solitude or seclusion in a court record.

The second cause of action, "Invasion of Privacy By Public Disclosure of Embarrasing Private Facts," was a little trickier to handle. "The cause of action for public disclosure of embarrassing private facts 'provides for tort liability involving a judgment for damages for publicity given to true statements of fact.'" Id. at 5, quoting Restatement (Second) of Torts § 652(d) special note (1976). This means that yes, someone can in some cases be sued for telling the truth. The question how the First Amendment limits that cause of action. The newspaper had published a statement that was in an open public court record. The Idaho Court relied on the U.S. Supreme Court's ruling in Cox Broadcasting Corporation v. Cohn, 420 U.S. 469 (1975), which had held that neither a state statute forbidding people to publish the name of rape victims nor the tort of invasion of privacy could be used to punish a newspaper that published the name of a victim that had been in the public court record. When information has already found its name into a public record, the privacy interest in that information decreases. What is more, there's a strong public interest in what happens in the courts, regardless of whether the events being reported are current or historical. The First Amendment favors that interest and discussion. When a case poses severe privacy problems, a party can ask the courts to seal the record, and nobody asked for that in this case. Finally, the court said that the fact that the report published the plaintiff's name when it probably didn't have to wasn't relevant. The question whether the article was about a matter of public concern is "based upon the article generally. Each fact included within the article need not be a matter of public significance." Slip op. at 9. The court also held that the First Amendment analysis was the same if the plaintiff tried to cast the complaint as one for infliction of emotional distress.

I wonder how many other states have dealt with questions of invasion of privacy arising from publication of information in court records or other public records after Cox. I also wonder whether invasion of privacy by publication of private and embarrassing facts applies when someone republishes embarrassing facts that have appeared in some form of public but nongovernmental record like a (well-reputed) newspaper. Maybe I'll have a look at the Restatement and the digests while I'm at the law library this afternoon. (On the other hand, maybe not.)

Declan McCullagh reports today in a CNET article on the upcoming FCC hearing on "Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers." The FCC is going to reconsider the rules that apply to incumbent local telephone companies regarding when they have to share their own networks with competitors, and at what prices. The process of sharing selected capabilities of a network with competitors is called "unbundling," because the different network capabilities are "unbundled" from each other and leased to competitors at regulated rates.

Section 251 of the 1996 Telecommunications Act gives the FCC the power to decide what parts and capabilities of their networks incumbent providers must unbundle and lease to competitors. The Act contains a general policy of promoting competition. At the same time, competition on the merits of service only happens if a company can gain some competitive advantage from innovation. If an incumbent carrier has to share everything new it comes up with, it has no chance to pull ahead of its competitors on the basis of its improved technology. If companies don't have that chance (coupled with the fact that other companies are going to be trying to do the same thing), then it's not worth their effort to implement the newer technology in the first place. We want new technology. So, where do we draw the lines on requiring incumbent companies to lease their service to competitors?

The FCC needs to come up with some kind of new rule tomorrow. McCullagh explains,

In two different cases, the Supreme Court and three appellate judges have concluded that [former FCC Chairman] Hundt's regulations imposed on the Bell companies go far beyond what Congress said the FCC could do. Now the FCC is under court order to draft more reasonable rules or have them struck down in their entirety--and the deadline is Thursday, the same day as the vote.

There are a lot of people who believe that incumbent telephone service providers are using obsolete equipment and who think that incumbents are hoping hoping for rules that will help them keep some of the monopolistic nature of their incumbency. That may be indeed be a threat. Here's a question, though. If tomorrow's ruling allows ILECs (incumbents) to raise their resale prices, and if that in turn puts a pinch on competitive wireline carriers, doesn't that create additional incentives for intermodal competition through cable systems, wireless systems, and other kinds of technology that don't depend on the relays and pairs of copper wiring owned by the incumbent? Won't 'voice over IP' services only further propel innovation in those technologies? If ILECs truly are obsolete and get too heavy-handed with their pricing in the short term, then we should expect to see intermodal competition take off in the longer term, shouldn't we? Or am I being too optimistic here? I've never been a fan of the ILECs, but I'm trying to see some silver lining around the cloud of potential higher pricing.

McCullagh's article also discusses how the political process at the FCC could affect the rules. Of five commissioners, two seem to oppose dramatically relaxing constraints on incumbents, one strongly favors it, one seems to favor it, and one swing voter favors relaxing constraints at the federal level but wants to allow states to regulate the incumbents more freely. If the swing voter, Kevin Martin, gets his way, the FCC will relax its own restraints on incumbents, but state public utilities commissions will still be able to impose some unbundling requirements even if the FCC does not.

[CNet article] / [FCC meeting agenda] / [FCC Notice of Proposed Rulemaking (PDF)] / [47 U.S.C. § 251]

CNET reports that Palm Computing and AT&T Wireless will soon have the Tungsten W on the shelves. The Tungsten W resembles the Tungsten T, but it doubles as a cellphone.

Well, it doubles as most of a cellphone. It seems to lack a built-in speaker and microphone. Instead, the user has to plug a hands-free earpiece in. Maybe they thought that would add to the device's appeal because you can talk while looking up or editing data on the handheld device. However, that deprives the user of the all-important ability to just grab the device and talk. I'm glad they decided to include a thumb-keyboard, though.

The Tungsten W also lacks the faster PDA technology of the Tungsten T. Instead of the T's ARM processor and Palm OS 5, the W runs Palm OS 4.1.1 with a 33 MHz Motorola Dragonball VZ processor.

I won't buy the product for three reasons: I don't have the money, it doesn't run on CDMA1x networks (I'm locked in as a SprintPCS customer), and I really need something I can hold to my ear and talk into. Having an earpiece jack is a good idea, but the earpiece should be an optional accessory.

Microsoft is introducing a peer-to-peer technology called Threedegrees to allow people to chat in small groups while "listen[ing] to music available in a common play list."

For NetGenners, Microsoft learned that using the Internet for socializing is a way of life. So the company focused on technologies that would help 'get groups formed and have activities they can do,' Savage said. 'We wanted things that paralleled our customers' priorities, which was hanging out with your friends and having fun....' ...

Microsoft used the dinner party as the model for developing the size of the social group and the way music is shared within it....

Group members can create play lists of 60 songs, or about the equivalent of six CDs. The songs are played from the participant's hard drive, rather than being illegally swapped. Songs can be in Windows Media Audio, MP3 or WAV formats.

[CNET story via The Shifted Librarian]

Well, that removes the file copying problem, at least as long as no one makes a way to dump the music data stream into a file as it's played. If users can share the music files simply by, say, changing the file extension so that the system thinks it's a different kind of file, that might be more of a problem.

Here are two questions: does playing the music over the chat system constitute a performance by digital transmission of the music, which happens to be an exclusive right under U.S. Copyright law? Is it a "performance" limited by 17 U.S.C. § 106(4)?

I doubt that using the proposed system would infringe those rights. This activity is just like having friends over to my house and playing some music together. We don't need ASCAP, SESAC, and BMI licenses to do that. The digital audio transmission right in 17 U.S.C. § 106(6) and the general performance right in § 106(4) both include only the right "to perform the copyrighted work publicly" (Emphasis added). That's why I don't infringe the § 106(4) performance right by playing music for some friends at home or in the car. The proposed system isn't like an audio stream that's open to all comers. Microsoft restricts the peer-to-peer chat group size to ten people, which helps limit the possibility that the audio transmission could be considered "public." It also doesn't infringe the right to copy, because nobody walks away with recordings they didn't have before the gathering started.

Legal matters aside, record companies will probably realize that Microsoft is offering something that will facilitate word-of-mouth marketing for their recordings without allowing the proliferation of copies that the record companies so deeply loathe. Like people gathering to play recorded music together, this encourages interest in music. This sort of activity is the only way that people like me who don't listen to the radio discover new music that we like. The next question is whether Microsoft's offering will catch on.

Update: Newsweek online at MSNBC has a longer story on the new system. Cory Doctorow (BoingBoing blog) has a link to the Newsweek story along with a few normative comments on the implementation.

Whatever Microsoft may call its new DRM initiative now, the name "Palladium" remains in the public eye firmly attached. (That's probably why Microsoft has changed the name to an unpronounceable series of letters.)

The Chronicle of Higher Education is running an article on Palladium and its implications for college campuses. A college could choose not to buy Palladium- or TCPA-enabled equipment, or not to enable the hardware and software components of the DRM infrastructure on the computers that it buys. But what if academic publications release electronic versions of their material employing DRM that can only be accessed using that hardware and/or software?

The question is a lot like what I talked about below.

Link via Peter Suber's Free Online Scholarship News.

BeSpacific relays a CNN report that someone cracked into the records of a contractor who handled Visa and Mastercard transactions for merchants, obtaining data on up to 2.2 million accounts. That's 1/3 of one percent of all Visa and Mastercard accounts. Looking at it another way: for each Visa or Mastercard-branded credit or debit card you have, the odds are 1 in 300 that someone who shouldn't now has your name and account number because of this incident.

They seem to know which cards were compromised, and say that they have notified the issuing banks of what cards are affected, but it could take a while to sort things out.

The CNN article doesn't say how much information was stolen. Because the company only handled the merchant side of transactions, it's most likely that the company only possessed the customers' names, card numbers, and card expiration dates. Let's hope it's limited to that, because the theft of more detailed information like addresses and Social Security Numbers would enable thieves to open new accounts in the names of other people.

This morning, cameras began tracking traffic in central London to determine whether the owners of cars driving there have paid the new user fees for those roads.

The £5 per day user fee extends to an eight-square-mile area of central London and covers driving between 7 a.m. and 6:30 p.m. Cameras will photograph vehicles, and "[t]he images will be fed into computers that will then match the license plates of those cars photographed against a list of drivers who have paid for the trip." [NYTimes article] The article doesn't explicitly say that the computers will use number-recognition software and accomplish the match-up automatically, but that strikes me as the only way effectively to enforce this system by camera. Cars spotted who haven't paid and who don't pay by 10 p.m. will find that their fee increases to a fine of £10 that night, then to £20 at midnight, then £80 after that. Motorists who fail to pay three of those fines may have their cars clamped or towed.

The avowed goal of the system is to push people to use public transit. However, many have argued that the alternatives aren't very appealing.

"Underground and rail networks are operating at capacity," Angela Bray, a Conservative member of the London Assembly, wrote in a letter to The Guardian this weekend. "If a traveler actually gets on to a train, he or she can expect conditions so overcrowded that they would breach E.U. laws on transportation of cattle." [NYTimes article]

A BBC News article on the topic quotes another objector:

... Conservative mayoral candidate Steven Norris said he would scrap the congestion charge and concentrate instead on better traffic regulation.

He said: "The crazy thing about the scheme is that even if it works it doesn't work.

"It shifts a lot of traffic around but it doesn't actually reduce pollution, it doesn't actually reduce the number of vehicles significantly overall, and it does it at enormous cost to people who aren't necessarily wealthy simply because they run a car."

There seems to be no talk about whether the camera system is invasive, a topic that would probably be central to debates about such a system in the United States.

Another article: The Times of London

Kevin Heller has posted the following hypothetical and thoughts:

If you enter a password protected/subscription website with a log/pass that is not yours (like generic/generic etc.) could this be a violation of 1201? While I agree that the registration controls access to the work, my thinking was that supplying false information has to be suspected and only if you were to completely bypass registration would it amount to a DMCA violation, whereas, 1715 feels the the language seems broad enough to cover it.

The question is whether supplying false information counts as "circumvention" of a "technological measure that effectively controls access to a work" protected by copyright. We can probably safely assume that the registration system counts as a technological measure under the statute. Given that, we can think of a couple different kind of scenarios in which one might obtain access to the work: (1) A person enters the identifying information of a registered user (a) with or (b) without that user's permission; (2) A person enters information that belongs to no registered user but triggers a (a) legitimate or (b) exploitative back-door to the system; (3) A user bypasses a registration and validation system entirely.

I've been musing a bit on how to interpret 1201(a)(1)(A) in each of these cases, as a matter of statutory text and purpose. I haven't written enough worth posting yet, though. My hunch, like Kevin suggested in his post, is that scenario (3) counts. The others, though, especially the more "innocent" varieties, are the hard cases that provoke more curiosity. Maybe tomorrow or Tuesday I'll have a chance to think about it more.

This post is mostly linkage. Sundays are usually really quiet, but there's a lot going on out there today.

BoingBoing has several interesting posts: This one on Google buying Pyra Labs, this one on "Live from the Blogosphere," this one describing how Bruce Schneier (a cryptography guru) decimated the marketing assertions of a company marketing new encryption software. Keep scrolling there to find the posts about the lobby group "Noise Free America" and a few notes on chemical and biological warfare agents.

Ernie the Attorney's wife Monique has joined the blogosphere with her products liability blawg. Welcome!

Law Prof. Jeff Cooper has some musings on the death penalty and how the recent Eighth Circuit Singleton decision, which held that a government may medicate someone in order to make him or her constitutionally executable, seems to indicate something wrong about the death penalty itself.

Seth Finkelstein has more thoughts on censorware.

Sam Heldman points to an Alabama Supreme Court decision on talk-radio defamation. 'Someday, the reasoning behind such a holding might be that an allegation that one man is likely to perform oral sex on another does not constitute saying something bad about somebody. That, however, was not the basis for the Alabama Supreme Court's holding. Instead, it was essentially the also-correct "come on, it was talk radio for pete's sake -- nobody expects literal truth on talk radio!"'

There's more news of note out there, but my mother is at the Denver International Airport on a delayed layover that could last for quite a while, so we're going to go meet her for lunch. Priorities -- Mom comes well ahead of blogging!

I've upgraded this site to Movable Type 2.6 and converted to a SQL-based database. If anyone runs into trouble with it, let me know.

David Stutz, who recently left Microsoft, asks Microsoft if it really knows where it wants to go tomorrow. He offers some thoughts on what new approaches Microsoft needs to take to make the most of where computers and software can go in oncoming years. I'm a total outsider to Microsoft and have relatively little of the kind of experience David Stutz has, but these strike me as very good insights.

I got to his website by following a link from Jon Udell's blog at Infoworld. Udell opines that Microsoft would seem like a much more human company if only we could see the faces and hear the ideas of people other than Gates and Ballmer. I suspect he's right.

At least one internet filtering system has decided that Howard Bashman's unparalleled appellate law weblog, "How Appealing," is pornography. Howard jokes, "Look on the bright side, though: If my Web log is classified as 'pornography,' perhaps some actual pornography has been classified as a Web log devoted to appellate litigation."

In a later entry, Howard quotes an email from a former Pennsylvania appellate judge, who wrote, "The classification of your blog as 'pornography' by screening software is further evidence supporting the findings in Chief Judge Becker's opinion in American Library Ass'n v. United States, 201 F. Supp. 2d 401 (E.D. Pa. 2002) (3 Judge Court)." The Children's Internet Protection Act ("CIPA") required libraries to install filtering software as a condition of receiving federal funding. Though the three-judge court sympathized with the government's goal of protecting children from obscene internet content, it found, among other things, that internet filtering systems would "overblock" to a degree that would exclude too much protected speech. It determined that that overblocking could not overcome the strict scrutiny demanded by the Free Speech Clause in this case.

Because CIPA provided for a three-judge district court to hear challenges to the law, the parties in the case could appeal directly to the U.S. Supreme Court instead of to the Court of Appeals. The Supreme Court granted certiorari, and has scheduled oral argument for March 5th. The EFF has copies of the briefs in the case here.

For other relevant comments, see Seth Finkelstein's recent entries on CIPA and censorware here and here. His blog has a whole category on the topic, and one of the amicus briefs in the Supreme Court case bears his name.

Opera Software makes a web browser called Opera. A week or so ago, it turned out that Microsoft seemed to have configured its servers to feed Opera (and only Opera) a miscoded "style sheet" so that Opera could not properly display the MSN.com homepage. Other browsers worked, and Opera even worked if it told the server that it wasn't Opera. Meanwhile, the style sheet sent to Opera browsers wouldn't even work in Microsoft Internet Explorer. That suggests that someone at Microsoft intentionally misconfigured the servers; if they didn't intentionally misconfigure the servers, then they really botched something up.

Now, Opera's decided to have a little fun of their own. They've released a special version of the Opera 7 browser that translates the MSN homepage -- and only the MSN homepage -- into the famously incomprehensible language of the Muppets' Swedish Chef. [CNet] [Opera press release]. Opera's product line manager comments, "The real point here is that the success of the Web depends on software and Web site developers behaving well and rising above corporate rivalry."

John Maltbie discussed the Mitan v. Davis case in an entry on his new blog, actualmalice.com. I'm looking forward to following his blogging. (By the way, thanks for the compliment.)

I'm also pleased to see that he has linked to Adam Samaha's First Amendment Online site, which is hosted at the University of Minnesota. Prof. Samaha is a Visiting Scholar (and has been for several years now) at the University of Minnesota Law School. I took his First Amendment and Federal Courts & Jurisdiction classes, and thoroughly enjoyed both. Yes, even jurisdiction. Check out that website if you're interested in the topic, especially its collection of primary resources.

Eugene Volokh remarked this morning on the debate in the Los Angeles City Council regarding potential war in Iraq. I'm not in LA, or even in California, but there are some municipalities around here that insist on doing this sort of thing as well, and I find it tiresome.

I don't talk about war- and terrorism-related politics on here, so you wouldn't know that I tend toward the dovish side. In the present debate, I'm skeptical of the justifications for military action that the U.S. administration has offered. I'm not writing to talk about that. My question is, why do municipal governments waste their time on these matters?

Municipalities have no authority whatsoever to dictate matters of international policy. The courts have repeatedly rebuked municipalities that have tried, for example, to discourage trade with Myanmar or other admittedly cruel regimes. Municipalities just aren't allowed to muddle in the field of international relations. Neither are states, for that matter. The U.S. Constitution reserves international relations for the federal government.

Although a municipal resolution about an international matter doesn't directly interfere with federal authority, it's still a waste of time and money. I offer a simple principle: Municipalities should handle municipal problems. While it's true that Reserves and National Guard callups could interfere with a municipality's operations, it is not for any City Council to debate the overall wisdom of United States foreign policy. This doesn't mean that Los Angeles doesn't have a voice in U.S. foreign policy-- it does. I'd guess it has a respectable number of U.S. Representatives, and it can probably bend the ears of California's U.S. Senators as well. Perhaps some fear that the U.S. Legislature has too little influence over the course of action the United States will take. If that's true, a resolution is still useless -- I suspect that a resolution from the Los Angeles City Council will mean very little to the decisionmakers in the Executive branch. It would be a far more productive use of time to start making contingency plans in case, say, a lot of Reservists who happen also be police officers get called.

Political debate about how this country handles international matters is a good thing, but city councils that spend their time on these matters in this fashion waste taxpayer money. They should discuss what problems will arise for the city administration depending on what course of action the federal government takes. They should also communicate with their elected representatives and with appropriate people in the executive administration about concerns that they have about foreign relations that directly relate to how they administer the city. But they should not agonize over trying to identify the preferred foreign relations policy of their municipality. They've got more productive things to do with their time.

Several people have noted the beginning of a class action lawsuit against Microsoft, Symantec, and numerous software retailers in California. Ernie linked the CNet News.com story this morning, and Kevin Heller has a link to the complaint [PDF].

The shrinkwrap licensing paradigm seems fraught with potential legal problems. First, these are the ultimate form contracts. Courts worry about form contracts drafted by businesses as the "standard" contracts for consumers. That alone doesn't mean that courts throw those contracts out, but they eye them with suspicion, and construe them against the drafter when ambiguity arises. Now add the fact that the customer does not see a 'shrinkwrap' contract until after purchasing the product. How many other circumstances can you think of where the exchange of money happens before both parties are aware of the terms of the deal? So much for "offer-acceptance-consideration?" Then consider the oppressive terms that software companies often write into their standard licensing 'agreements.' The fact that the retailer wouldn't take the media back from a consumer who does not agree with the terms (contrary to what almost all licenses say the retailer will do) might be the straw that breaks the camel's back, but it's still only one problem among many. The complaint alleges that pushing these kinds of terms on consumers in this fashion amounts to fraud and several violations of California's consumer protection laws. I've been expecting a case like this for a while, and I'll be curious to see how it plays out.

Meanwhile, in another topic-related turn of events that Ernie noticed, several sections of the American Bar Association again declined to put their stamp of approval on a proposed uniform act that would have made it a lot easier for for software manufacturers to push onerous licensing terms on consumers.

The National Conference of Commissioners on Uniform State Laws (NCCUSL) several years back drafted the Uniform Computer Information Transactions Act (UCITA), which my copyright professor always pronounced to sound like "You Cheater."

The idea behind a proposed Uniform act is that most or all state legislatures will adopt the law, and the resulting uniformity among state laws will make doing business or adjudicating disputes between states a lot easier for everyone. Some great and very effective examples include the Uniform Commercial Code (UCC), Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), its predecessor Uniform Child Custody Jurisdiction Act (UCCJA), and the Uniform Interstate Family Support Act (UIFSA). [Why yes, I've done some domestic relations work, why ever would you suspect that?] The U.S. Congress might put its rubber stamp on the Acts, but because they cover matters of state law, it's up to individual states to adopt uniform acts into law with whatever modifications they see fit to incorporate.

The problem with UCITA is that it would indeed have made interstate transactions easier, but only for software distributors. Meanwhile, it would have changed the substance of the law in a fashion inhospitable to consumers. Maryland and Virginia did adopt versions of UCITA, and I think it's on the calendar for discussion in at least one more state (Oklahoma?), but the fact that six sections of the ABA wouldn't endorse the act will likely deter more states from adopting UCITA.

Yesterday I received, from parts best left undisclosed, an offprint copy of Gil Grantmore, The Phages of American Law, 36 U.C. Davis L. Rev. 455 (2003). I flipped to the title page, and lo, found my own name among those in the author's credit note. I don't know whether that signifies the beginning of a great career, the end of a career, or if it is career-irrelevant.

Meanwhile, it's good to see that the Grantmore troublemaker(s) is (are) up to his (their) usual antics, contra Wayne R. LaFave, Livrebleu 17: Les Conséquences Tragiques Forgées par le Professeur Répugnant Nommé Grantmore, 2001 U. Ill. L. Rev. 857.

Since I've started working on the topic of DRM, I may as well try to keep up-to-date with it.

The other day I speculated that Microsoft's DRM goal is to make equipment that runs Microsoft software the preferred or even the sole platform for delivery of DRM-enabled content. This ZDNet article by Joe Wilcox confirms that idea. (Thanks to Denise for the link.)

By providing free use of the DRM technology and the accompanying toolkit, Microsoft hopes to make Windows Media audio and video formats more popular with record labels and eventually consumers. The strategy follows marginally successful partnerships with device makers and content creators designed to further the adoption of the format.

"Microsoft hopes that filling a perceived need by the labels to create a DRM solution will help drive Windows Media forward beyond the PC and into the arena of consumer electronics." said Jupiter Research analyst Michael Gartenberg.

At the same time, Microsoft is licensing its Windows Media 9 Series file formats for use on non-Windows operating systems and on devices. Many analysts view the low-cost of the licensing as an attempt to undercut the licensing cost for MPEG-4, the successor to MPEG-2 used on Hollywood movie DVDs and the biggest potential competitive threat to Windows Media technologies.

"The long-term strategy is the ubiquity of the Windows Media Format," Rosoff said. "If that becomes the default format, suddenly they're selling a lot more Windows Servers, because you need Windows Server to administer the DRM and host and stream the files if you're doing it that way. And you need the licenses for the devices to play the files." [link]

The interviewees concede that Microsoft's real goal is probably to extend its monopoly. Notice the economic value transfers implicit in this scheme: Microsoft gives the content providers something for free, sells content providers licenses for the equipment to run it, and the technology deprives consumers of the value of (1) their choice of computer/device platform and (2) their flexibility to control what they do with the media in their possession. Microsoft, of course, cleans up, licensing DRM agents in consumer electronics and computers while selling Windows Server cash cows to media distributors. Meanwhile, competing DRM technologies will struggle to find a way to compete with Microsoft's gift of DRM technology to the distributors. Microsoft can make money from the sale of its server OS; RealNetworks can't.

Meanwhile, the article suggests that the labels are contemplating offering digital files to consumers on multisession CDs:

Providing digital tracks that can be transferred to a computer, copied to an MP3 player, and ultimately even burned onto a CD will defang critics who say copy protection eliminates consumers' flexibility to use their own music, the labels say.

The media format, of course, would be the DRM-enabled Windows Media Audio. This marketing technique could stave off some of consumers' frustration at the idea of being unable to copy audio from the computer to a portable device. That would depend on the details, and peer-to-peer filesharing would be right out. One problem is that the portable device would have to support WMA; I'd guess that PocketPCs do, but I'm not aware of any other devices that do (but I also haven't followed the market), and I'd guess that Apple's astonishingly consumer-friendly iPod does not. It probably could, but that would mean making Apple a slave to Microsoft in yet another arena of computer use.

Every once in a while, bloggers like to review the statistics to see what search strings get people to their websites, and comment on them. My turn.

math in law - That must have turned up quite a few hits... but it's not something you'll see discussed often here.

national geographic swimsuits - Apparently lots of people are excited about this. I still find it alarming.

2003 guess paper of math class 10 - Your guess paper is as good as my guess paper.

colorado bar exam - Two days, the first is 6 hours 45 minutes for nine short essays (~25 minutes each) and two Multistate Practical Tests; the second is the six-hour, two hundred question Multistate Bar Examination. It wasn't fun, but it could have been worse. The summer pass rate is usually around 75%, while the winter pass rate is a bit lower. But the information you really want is probably here.

how do lawyers use math - Well, that depends on what kind of law you do.

immigration law jobs - Like I told the domestic relations client at last week's pro se clinic, I know practically nothing about immigration law. Get to know people in the local immigration law bar section, if there is one, or other local immigration law specialty groups. They're out there!

jeff cooper class - Yeah, he's pretty cool. But you could just go straight to his blog at its new site.

jeff frankel economist - Don't know him, but I vaguely remember saying something about him.

kazaa user prosecution - Looking kinda likely.

martin schwimmer trademark blog - A good read.

math for poets book - Gosh, ya got me, but I hope you find what you're looking for. Will we be seeing you in law school some time down the road?

math law - Math tends to enforce itself without our help.

math law school - But if it doesn't, we'll have one of these soon.

math life quote - Baffled.

math poets - Studying what was written during the cosine period?

newsweek article 2003 - You might consider narrowing that search down a bit.

poets life history - I think maybe the name of this blog is attracting some attention from people who're really looking for something completely different.

record companies to track down file sharers - See supra.

steel industry financial statments 2002 - I kinda wonder about those, too, but they aren't here.

Kevin Heller over at TechLawAdvisor has made a quiet little posting with potentially big meaning.

Fair use doctrine, Kevin writes (in his entry and in the paper that his entry links), was developed to be applied in cases where the holder of copyright in a work had sued someone who seemed to be unfairly competing with the copyright holder. For example, a publisher might sue when a competitor has quoted so much material from a book that a reader might no longer feel a need to purchase the book. Kevin suggests that fair use doctrine wasn't really designed to address what consumers, people who don't redistribute the work to anyone else, do with their copies of the work. The implied reason for this is that those consumers' non-redistributive uses of the work were presumptively fair. No-- even better, perhaps they were presumptively non-infringing.

Am I on the right track here? This idea suggests that allowing content distributors the power to control what users do with copies of content seems even more unjust and off-balance than we've thought. Perhaps that's just an academic observation -- non-lawyers might say, 'We could have told you that!" -- but for those of us who tend to interpret this matter through the lens of the law, rethinking what that law means and does is a crucial exercise. In this particular case, I suspect that this suggestion is not consistent with the way the cases (notably the Sony case) have analyzed consumer copying for consumer use, but he knows more about this than I do.

The U.S. District Court for the Western District of Kentucky, sitting in diversity, has held that Kentucky law would apply the single publication rule to decide (a) when an action for defamation has accrued and (b) when the statute of limitations starts to run. The case is Mitan v. Davis [Link to opinion in WordPerfect format.]

After a souring in their business dealings with Mitan, the Davises created a website to alert others of Mitan's alleged mischief. Mitan filed suit for defamation, and the Davises responded that nine of the ten allegedly defamatory statements fell on the wrong side of Kentucky's one-year statute of limitations for defamation. Mitan argued that the statute of limitations started running anew each time a new person saw the Davises' website. The court disagreed.

The court explains that at common law, courts treated a defamatory statement as "published" each time it reached a third person. This meant that the statute of limitations ran from when the most recent new person heard or read the defamatory statement. But when mass publication came about, so many people could hear the statement for so long that the statute of limitations might never run. So, courts began to adopt a "single publication rule."

Under the single publication rule, "any one edition of a book or newspaper, or any one radio or television broadcast, exhibition or a motion picture or similar aggregate communication is a single publication." RESTATEMENT (SECOND) OF TORTS § 557 (1977). As a result, the aggregate communication can give rise to only one action in any one jurisdiction where the dissemination occurred, and only one statute of limitations, which begins to run when "the finished product was released by the publisher for sale in accord with trade practice." Zuck v. Interstate Publishing Corp., 314 F.2d 727, 730 (2nd Cir. 1963). A republication occurs when a defamatory article is placed in a new form (paperback as opposed to hardcover) or edited in a new form. Firth v. State of New York, 706 N.Y.S.2d 835, 841 (N.Y. Ct. Cl. 2000).

The opinion appears in WordPerfect format here. (BNA Internet Law News remarked on the case in its morning email today, but included a link to the opinion only through its subscription service.)

Ernie the Attorney laments the seemingly impending arrival of strong DRM. I share all of his sentiments, including the curiosity about whether Apple Computer will serve me better as a customer than would Microsoft and company. Ernie writes,

I want an iPod, and I want cool tech tools. But, most of all, I want my various devices to talk to one another. I don't want my devices to be locked up by The Big Software Boss. I don't steal software. I [b]uy a lot of it, and a lot of it ain't cheap. Oh, maybe the PCs that run them are inexpensive, but what do you get for that?

I have a friend who's a graduate student at Georgia Tech who's very happy with his G4 Powerbook, and ever since I saw that slick interface and nice computer, I've been thinking about perhaps getting something like that when I have the funds.

However, when it comes to delivering what consumers want, even Apple may find itself in a bind if it doesn't have strong DRM infrastructure when Microsoft presents its DRM 'offering' to the world. Microsoft must know that DRM won't give its customers what they really want, so it must be betting that it will at least be able to deliver something different from the other available options. When Microsoft offers a strong DRM infrastructure, media providers will probably rush to use those DRM mechanisms to deliver content. They'd be ready for it, because they probably would have defined most of the 'standards' themselves. Any computer equipment manufacturer that chooses not to play along could find that none of the new content will play on its devices. Apple might give consumers exactly the technology that they want today, only to find tomorrow that media providers no longer produce new content that will play on non-DRM devices.

That's a worst-case scenario, and it assumes a heck of a lot about how the media, electronics, and computer industries might look in five or so years. Microsoft is probably betting that if it gives the media industry what it wants, Microsoft's software will have the advantage of being able to play the most new content. Customers might be forced to choose between encumbered new content or no new content at all.

The next question is, can we realistically hope that consumers will reject the entire DRM model, or will they swallow their frustration and pay extra cash to be able to listen to the songs they want for as long as they want on portable devices as well as on their computers or stereos? The content industry would love to be able to charge by the device and by the 'play'. Thus far, technological infeasibility has been the key impediment to that sort of pricing. How can consumers discourage that kind of business model in a world where it's technologically possible? Even in a world without the Digital Millenium Copyright Act's anti-circumvention provisions, a sufficiently strong DRM model would dramatically reduce the ability of the media-consuming public to choose what they do with the media content they possess.

I suspect and hope that there will be enough demand for non-DRM content that some non-DRM media will remain even in a DRM-enabled world. Hopefully there will be enough people willing to pay for non-DRM content that some people will still try to provide it. In my ideal world, the demand for DRM content would drop so low as to make it not worthwhile for media producers, but I'm not counting on that.

I haven't talked about possible adjustments to the legal context that might change the way things work in this (for now) hypothetical DRM-enabled world. That's a topic that should probably be on the table for discussion.

Kevin Burton reports how SBC tripped all over itself responding to a section 512(c) notification of claimed infringement about material he had posted online.

I disapprove of the Church of Scientology and its affiliates' use of copyright law to keep their activities out of public view and debate, but I think that section 512(c) is a good tool in several respects: It gives a copyright holder some out-of-court remedy before having to dive into full copyright litigation, it gives the alleged infringer an opportunity to respond, and it avoids turning the ISP into a judge for the dispute. However, the system only works fairly if several conditions are satisfied, and one of those is that the ISP must have a good policy for handling the whole matter. Section 512 requires an ISP to take "reasonable" measures to notify the customer of what is going on. Personally, I have a hard time convincing myself that sending an e-mail to the address associated with the account is inherently "unreasonable," but I think that it would be much better business practice to take the further step of trying to call or write to the customer.

The ISP also needs to set up its policy so that it can restore the customer's data quickly. If the customer provides a counter notification under section 512(g), the ISP has to restore the data between 10 and 14 days later unless there is a court order to the contrary. If it doesn't, then it loses its safe harbor from any lawsuit the customer may file (presumably on a breach of contract theory). It's important for the ISP to have its act together all the way through the process. The take-down provisions do not intend for a customer acting in good faith to be completely ignored.

(link via both BoingBoing and Lisa Rein)

Some U.S. Representatives have introduced bills designed to amend the DMCA (17 U.S.C. sect. 1201) explicitly to permit circumvention of copy control technologies to an extent commensurate with fair use of the underlying material. Derek Slater muses on why that kind of amendment might not be good enough actually to preserve fair use of DRM-protected media.

I'm not sure that his point about losing the filesharing culture gets him very far -- filesharing activity usually isn't fair use and remains illegal until either we change the copyright law or copyright holders change the way they license digital material. What I worry is that legalizing some kinds of circumvention won't be good enough if the DRM infrastructure becomes effective enough to make circumvention non-trivial. Fair use might then be legal, but it would also be merely chimerical.

I've been upgrading my desktop computer's operating system over the last few days, which has kept me in computer-tech mode instead of computer-user mode.

Soon I'll be upgrading the Movable Type install to version 2.6. I hope that goes smoothly.

Right now, though, I'm too busy to mess with that. I got a call-back interview for an in-house position that I'd really like, so I've got to touch up my writing sample and do a bit of reading up for that. I'm also working on some documents related to DMCA 17 U.S.C. sect. 512 take-down notification, a topic on which I think I will add a few points shortly.

I stumbled on an interesting discussion about copyright going on between the blogs of Jonathan Delacour and Shelley Powers. Both have been working on ideas related to copyright term, moral rights, and control over copying in general. I've got a few thoughts that I want to ramble about here.

Someone, sometime, started tossing around the term "intellectual property," and unfortunately that term stuck. The misfortune is that the term leads us into fallacious reasoning about what patent, copyright, and trademark rights are. The law treats physical property as "bundles of rights" -- for instance, the right to possession that comes from having title in real property. Patent, copyright, and trademark consist in bundles of rights, but they are not the same kinds of rights, and they do not relate to the same kinds of things, so we should not necessarily think about them the same way that we think of physical property.

Everyone has by now witnessed the fallacies that arise when someone tries to analogize physical property law to 'intellectual property' law. They arise whether the proponent of the analogy argues for stronger or weaker copyright protection. Those fallacies arise because the objects of physical property and the objects of copyright are fundamentally different sorts of 'things.' We need to discard the "property" idiom with regard to the fruits of creativity and move instead to discussing the basic social goals that underlie these systems of rights. The real question is, what is this law supposed to accomplish?

First, let's set trademark aside; trademark law falls under the so-called "intellectual property" umbrella, but its justifications differ from the justifications for patent and copyright. Trademark law is designed to allow people to market products and services without having someone else try to trade on the goodwill that comes from one's brand name and marketing materials. It exists as much to protect consumers as to protect sellers, by preventing confusion. Trademark law wasn't created to promote the development of better advertising jingles; it was created to protect sellers and consumers.

Copyright and patent, on the other hand, are both designed to promote society's intellectual and industrial development. The framers of the U.S. Constitution thought scientific and cultural advancement to be so important that they gave Congress a specific enumerated power to make laws promoting scientific and cultural work by granting limited monopolies in those advancements to their creators. Copyright is designed to encourage expression and the flow of ideas by protecting an author's expression -- though not the underlying ideas -- and patent is designed to encourage the design of useful things by giving people limited monopolies to use the things they design.

The questions being debated between Shelley's and Jonathon's weblogs include, "Just what should these copyright bundles of rights include? Regardless of what those bundles of rights include, how should an author choose what rights to exercise at what times?"*

Shelley writes, "I sure would like to hear from those others who believe there is no harm in an artist retaining creative control of their work, and that we can be inspired [by artists] without deriving from them." The question is, how much control should authors have, and for how long? We give authors control over the reproduction of their work not to satiate any sense of moral attachment to their work that they may have, but in order to make it possible for them to collect some remuneration. Copyright law does not exist to satisfy anyone's instinct that "that is my work and I therefore control it," except to the very tiny extent that we protect the 'moral' rights of attribution and integrity (see 17 U.S.C. sect. 106A).

I've got plenty more to say on this, because this is all more complicated than I've allowed here, but I have to stop for now.

* I follow the convention in U.S. copyright law of using the term "author" for the creator of a "work," regardless of whatever kind of work it may be.

A friend of mine noticed that the Kronos Quartet is turning 30 this year. Kronos has been a pioneer in exploring what can be done with two violins, a viola, and a 'cello, commissioning numerous works by modern composers. I've got a couple of their CDs, and while some of the music can try the ear, some of it has a way of drawing the attention and engaging both the ear and the mind. They've also given impressive performances of works from earlier in the 20th century.

The discussion of the staging aspects of a music performance most caught my attention as I read that article. The article quotes Harry Sumrall of the Performing Arts Library, saying, "Before Kronos came along, if a classical string quartet showed up for a recital you could expect people in formal dress, and very bare or non-existent stage sets and lighting. ... The reason Bach didn't perform with a lighting design is that technology didn't exist. They've brought classical music out of its shell. Kronos wasn't taking attention away from the music, they were expressing it in the same modern context that classical musicians had always done."

That reminded me of times back in high school, when my friends and I worked on the lighting and stage crew for many a 'classical' concert. When small ensembles performed, we often invited them to try the experience of performing the pieces with unorthodox staging or lighting. The band director even programmed a small-ensemble concert that encouraged this kind of creativity. That gave us the opportunity to add something to the expression of the music, to add to the vibration of strings or of columns of air, and to discover how the performers would in turn respond through subtle changes in their expression, phrasing, or dynamics. Even when the school added a new computerized lighting control board, we sometimes still used the old control board covered with manual sliders; once we had "tuned the instrument" by rigging the lights as we wished, we could "play" that control panel with a great deal more creativity and spontaneity than the computer could allow. I miss being able to participate in that kind of intermingling of creativity so regularly.

I've been running Movable Type for about four months, but I only now realized that the date-based archives templates weren't allowing people to comment or use TrackBack. Since I'm not using individual archives anymore due to duplicativeness and space limitations, that meant that anyone following an RSS feed landed at an entry with comments and TB turned off. That's bad.

And now, it's fixed. I copied the commenting and TB tags from the main index to the date-based archives.

John Snyder, the President of Artist House Records, and his son Ben discussed the future of media entertainment and why the RIAA and MPAA have got it wrong in a paper they submitted to the National Academy of Recording Arts and Sciences on Thursday. The paper appears here, at Salon.com.

(I'd credit the link, but I don't remember who I got it from. Sorry!)

It's good to know that someone in that business is pushing for more creative thinking.

I've don't think I've got anything to say here that others haven't already said elsewhere. I'd say to start at Instapundit and work from there, but of course you've probably done that already.