Tuesday, October 05, 2004

And another Benton Headline: U.S. PREPARES TO CRACK DOWN ON INTELLECTUAL-PROPERTY PIRACY Attorney General John Ashcroft, Commerce Secretary Don Evans and U.S. Trade Representative Robert Zoellick, and senior officials from the Department of Homeland Security announce today a coordinated crackdown on the theft of U.S. intellectual property, such as pirated compact discs and knockoff auto parts, which U.S. officials say amounts to about 7% of global trade. Called the Strategy Targeting Organized Piracy, or Stop, the effort consists of immediate steps to be taken by federal agencies, together with legal and administrative changes to be made in coming months. [SOURCE: Wall Street Journal, AUTHOR: Neil King Jr. neil.king@wsj.com] http://online.wsj.com/article/0,,SB109684335731934784,00.html?mod=todays_us_ page_one (requires subscription) Here's links to related stories: * LATimes: Firms to Address Piracy Locks Sony, Samsung, Royal Philips Electronics and Panasonic have agreed to develop a framework for digital rights management that will work with a variety of devices and services http://www.latimes.com/business/printedition/la-fi-drm4oct04,1,3952021.story ?coll=la-headlines-pe-business Same story covered by News.com http://news.com.com/Tech+powers+seek+antipiracy+accord/2100-1025_3-5394347.h tml?tag=nefd.top * WSJ: New File-Swapping Software Limits Sharers to a Select Few Grouper Networks has developed software that lets people share music, movies, photos and other digital data on their computers with small groups of users, limited to no more than 30 people. http://online.wsj.com/article/0,,SB109684670650734905,00.html?mod=todays_us_ marketplace (requires subscription) 10:16:10 AM    comment []

God and MGM at Stanford (Aaron Swartz). Stanford's ominously-named "Information Security" wrote: If you believe [the DMCA infringement] notice is mistaken, you have the right to provide a counter-notice. For information on what your rights are, see Section 512 of the Copyright Act. It is available at http://www.law.cornell.edu/uscode/17/512.html. That code makes it clear that counter-notices are only relevant for "material ... that is removed, or to which access is disabled by the service provider". That is obviously not the case when one is simply notified of an allegation of infringement, so the counter-notice provision seems inapplicable. Stanford respects the proprietary interests, including copyrights, others have in their original works, and expects the same of its faculty, employees, students and affiliates. Does it? Stanford orgnized and publicized an orientation-week event ("Frosted Flicks") at which a "digital collage" combining a number of movie trailers and a song was shown. Did Stanford receive permission from each of the movie studios and production companies and record labels involved? Stanford's CourseWare website provides supplemental material for class, including scanned versions of copyrighted books, thus distributing them to hundreds of students. Stanford is clearly aware of this since before one can download the work one must agree to a notice about copyrights. Did Stanford get permission from the authors and publishing companies involved? It appears some Stanford dorms have televisions in the lobby which show pay networks like HBO, in front of which large groups congregate. Has Stanford gotten permission for such performances? If, however, a user subsequently receives a second notice, his or her connection is immediately disabled and the user is merely copied on the Disconnect Request. This seems like an unreasonable and unfair punishment, considering that a DMCA request contains no actual evidence of infringement and there are no sanctions for filing a false one. It is not hard to imagine this power being abused. But Stanford provides no checks on this power; indeed, it amplifies it by quickly disconnecting the user's Internet connection. What purpose does this serve? You have no legal liability; you are protected by the DMCA. True, the DMCA does require you take some steps to stop repeat offenders, but it does not require such draconian tactics, merely the enforcement of "a policy that provides for the termination in appropriate circumstances of subscribers ... who are repeat infringers". I thought Stanford wanted to inspire learning and creativity. As your own law professor Lawrence Lessig notes "creativity always builds on the past". Such a draconian "two complaints and you're out" policy hardly seems conducive to encouraging creativity. [Copyfight] 6:35:42 AM    comment []

Who among us does not like making up quotes?. Avid New York Times readers probably recognize this quote from the paper of record's campaign coverage: "Who among us does not like NASCAR?"; or perhaps, "Who among us does not love NASCAR?" The paper has attributed some iteration of the quote to John Kerry in several opinion columns and news stories since March, always to make the point that try as he might, John Kerry just doesn't get the common, NASCAR-loving man, and when he tries to adopt a regular-guy persona, the result is laughably unconvincing.  . . . A couple of weeks ago, a handful of liberal bloggers, including Atrios and Bob Somerby of the Daily Howler, questioned the accuracy of the Kerry quote. A Nexis search (we did one too) found that the "who among us" remark curiously seemed to originate with a Maureen Dowd column. Letters were sent to the Times public editor (we sent one, too). A search was on for some proof that Kerry actually said this. Well, it turns out he never did say it -- that's right, Kerry never made a statement that has now become 2004 campaign legend at the New York Times. Bob Somerby has the story: "We finally have the full information. Yes, Maureen Dowd invented that fake NASCAR quote -- the comical 'quote' from pretentious old Kerry." [Salon.com] Remind anyone of an inventing-the-Internet line from four years ago? 6:35:11 AM    comment []

The "pro-am revolution". Over at Fast Company, Charles Leadbetter pushes an interesting idea: The increasing scientific, political, and cultural importance of "pro-ams" -- amateurs who hold themselves to professional standards. One good example is in astronomy: Many astronomical discoveries these days are coming from amateurs with backyard telescopes, because technology has made those telescopes increasingly powerful. Or consider Linux, an operating system that was created by volunteers, yet which now rivals Microsoft's top products. In the world of music, cut-and-paste apps like Apple's Garage Band are making amateur performers increasingly polished. The interesting thing, as Leadbetter points out, is that this completely reverses the trends of the last few hundred years: The 20th century was marked by the rise of professionals in medicine, science, education, and politics. In one field after another, amateurs and their ramshackle organizations were driven out by people who knew what they were doing and had certificates to prove it. Now that historic shift seems to be reversing. Even as large corporations extend their reach, we're witnessing the flowering of Pro-Am, bottom-up self-organization. Interestingly, an example he doesn't mention is blogging. "Amateur" authors -- I hesitate to call them "amateurs" because some bloggers are more fun to read than many paid professionals -- are getting so much audience these days that the pros are freaking out, as the New York Times Magazine documented last week in its excellent story on political bloggers. Anyway, Leadbetter is set to release a book-length version of his argument in November, and I'll be intrigued to read it. [unmediated] 6:35:02 AM    comment []

6th Circuit Clamps Down on 'Sampling', by Gary Young, The National Law Journal. In a case of first impression, a panel of the 6th U.S. Circuit Court of Appeals ruled on Sept. 7 that a musician who copies any part -- even as little as two seconds -- of an existing recording without permission of the person who owns the copyright to the recording is in violation of the law. Bridgeport Music Inc. v. Dimension Films, No. 02-6521. While earlier decisions have addressed the copyright implications of sampling, they dealt with copyrights to an underlying song (often held by a songwriter or music publisher), not copyrights to the embodiment of a song in a particular recording (often held by a performer or recording company), according to attorney Robert H. Kohn. Kohn, the CEO of comedy recording company Laugh.com, is co-author with his father Al Kohn of the treatise "Kohn on Music Licensing," a work quoted at length by the 6th Circuit panel. DEATH KNELL FOR HIP-HOP? The panel said that its "bright-line rule" was dictated by federal statute and predicted that it would not "stifl[e] creativity in any significant way" and would reduce disputes over sampling. Others see it differently. "The decision will kill off the art form of hip-hop," asserted Lawrence E. Feldman of Jenkintown, Pa.'s Feldman & Associates, who represents hip-hop musician Jazzy Jeff and other recording artists. "[T]he panel's 'solution' will cause difficulties far more substantial than any problem it is purportedly addressing," wrote the Recording Industry Association of America in a Sept. 21 amicus brief filed on its behalf by Paul M. Smith of the Washington office of Jenner & Block. The brief, which asks the 6th Circuit to reconsider the issue en banc, warns of a torrent of lawsuits: "For more than a decade, the music industry has conformed its conduct to the existing rules-obtaining licenses for sampling when appropriate, and relying on de minimus and fair use principles if and where they apply. The panel's abrupt and dramatic change in the law ... creates retroactive liability for anyone who may have properly relied on the previously existing rules." While the industry may have long assumed that minor or "de minimus" sampling was acceptable, it is debatable whether there were any "previously existing rules" to that effect. What is clear is that de minimus borrowing does not violate the copyright to an underlying song. But it has been an open question whether the same is true of sound recording copyrights, according to Kohn. Kohn said that record companies have probably been reluctant to litigate the issue because they realize that their own artists make extensive use of sampling. Kohn said there are good reasons for the 6th Circuit's interpretation, both in the text of the Copyright Act and in considerations of policy. The sound recording copyright is so weak that it would be a virtual nullity without control over de minimus sampling, he said. To illustrate its weakness, he noted that the holder of such a copyright can't prevent a copycat from making an identical-sounding recording as long as it is a re-creation and not a direct copy. The RIAA, on the other hand, argued that another copyright expert supported its position. Its brief quoted David Nimmer, author of Nimmer on Copyright, as saying that the "practice of digitally sampling prior music to use in a new composition should not be subject to any special analysis." Nimmer, of counsel at Los Angeles' Irell & Manella, declined to comment. 5:15:14 AM    comment []