Monday, August 11, 2003

ads with air guitarists and the idea / expression of the idea dichotomy Ads Ape Apple's Air Guitarists. Upstart BuyMusic.com is doing more than just offering a music service that mimics iTunes. Its commercials are strikingly similar to Apple's ads, too. Flattery? Perhaps, but it also could be a lawsuit in the making. By Danit Lidor. [Wired News] [A blog doesn't need a clever name] "The fair-use doctrine does provide a defense to copyright- and trademark-infringement claims," Crowther said. "The critical issue will be whether the BuyMusic.com is a parody of the Apple ads." "When the second work just borrows from the first work to get attention or to avoid having to develop something new or fresh and does not make fun of the original work [sigma] it is not a parody and may not have protection," Crowther said. Parody or not, a copyright-infringement suit wouldn't necessarily be an open-and-shut case. "The dichotomy between 'ideas' and 'expression' is hard to get across," said Blaney Harper, an intellectual property attorney at Jones Day. "Showing average people air guitaring their way through a song against a white background" is not enough to show BuyMusic is copying Apple's expression, he said. I haven't seen these ads, but I admit that they would really annoy me. It would seem that BuyMusic is stealing numerous ideas of Apple. But this happens all the time - in business, in art and science. Stealing an idea (unless it's patented) is different from violating intellectual property rights. This is a really good thing - even if it is infuriating to see BuyMusic use this legal point to peddle its lame Windows knock-off of the iTunes Music Store. It's corny, but the law is meant to be blind, (if people stay within its bounds) it protects the good and the bad, the creative and the exploiters. To change the law to stop the "bad" BuyMusic would be opening the possibility of flooding more of the "good" public domain under a torrent of copyright claims. It could shut down or severely damage the blogosphere. The idea / expression of idea dichtomy is being undermined enough already by contract law, without this happening. So what can be done? Protest this protected form of idea theft in non-legal ways. Try to shame BuyMusic into changing its behaviour. Music (legally downloaded from iTunes): Moby, 18, I'm not worried at all 1:44:32 AM

	Tuesday, June 17, 2003

metaphor watch: exploded content firstmonday on eldred. ... In my view, reclaiming it would make it relevant. Exploding the content within the public domain in a context where it can be built upon and spread (ie, now, with the internet) will make people see again why the public domain is important. And if they see that, then they will again defend it. ... [Lessig Blog] 11:01:23 PM

	Monday, June 9, 2003

musings about Content I was thinking of adding something like "a radical law librarian's perspective" at the end of the description, but decided against it, because I didn't like the idea of my description being 3 lines long. I was also toying with the idea of capitalizing the word Content or putting the word in quotation marks because I find it deeply ironic the way that all of the important things on the web have been reduced to being just one form of content or another. Sometimes I get the impression that some techie people think that one sort of content is interchangeable with any other sort of content. Of course, in a way this is true, but this attitude defeats the whole idea of content in the first place. The whole point is that words, images, sounds etc have context, and are not interchangeable! Also it leads to travesties like the Digital Millennium Copyright Act, which side-steps the crucial idea/expression of idea distinction by declaring everything to be digital media. Anyway, I didn't do this because a capital letter would have stood out like a sore thumb and some people think the ironic use of quotation marks to be pretentious - or something which Dr Evil likes to do :) Not that I really care if somebody thinks I'm pretentious - that's her/his problem - but I am aware that quotation marks lose their effectiveness if they're used too frequently. 11:21:38 AM

	Wednesday, June 4, 2003

contact your Representatives and Senators about the Public Domain Enhancement Act reclaiming the public domain. We have launched a petition to build support for the Public Domain Enhancement Act. That act would require American copyright holders to pay $1 fifty years after a work was published. If they pay the $1, the copyright continues. If they don't, the work passes into the public domain. Historical estimates would suggest 98% of works would pass into the pubilc domain after 50 years. The Act would do a great deal to reclaim a public domain. This proposal has received a great deal of support. It is now facing some important lobbyists' opposition. We need a public way to begin to demonstrate who the lobbyists don't speak for. This is the first step. If you are an ally in at least this cause, please sign the petition. Please blog it, please email it, please spam it, please buy billboards about it -- please do whatever you can. And most importantly, please help us explain its importance. There is a chance to do something significant here. But it will take a clearer, simpler voice than mine. [Lessig Blog] 7:54:29 AM

	Wednesday, April 30, 2003

the iTunes Music Store is what I've been waiting for, mostly Louis Louis. Forbes' Arik Hesseldahl ("Apple Tunes Up"): [A]fter a short tryout and a tad of obligatory skepticism, we can honestly say we're impressed. The iTunes Music Store, an online music download service that is integrated into Apple's iTunes 4 digital jukebox software, is enormously easy to use and dangerously addictive. On the user-friendliness front, I can observationally add it was far easier for my Dad to set himself up than it can be for him to edit a Word document. He was thrilled to find plenty of Louis Prima. [Bag and Baggage] I must confess that for all my criticisms of the RIAA and its attempts to stifle technologies which do not fit into its outdated business model, I have never used Napster, Kazaa, Morpheus, Grokster or any other file trading services. There are a few reasons. Lack of bandwidth for one (not an issue now thanks to my new EarthLink dsl connection at home). Also I have vague fears of viruses or adware that might hijack or embed itself in my computer. Finally, although I oppose the RIAA's rhetoric that brands all online music consumers as thieves, my own moral compass has cautioned patience, to wait until there is a legal and safe alternative. Well, I'm glad that I'm a Mac user and that some very cool software is available for us (and that the Windows world will have to wait for months for an alternative! *gloat*). Maybe it's because I've never looked at the other services that I'm so impressed with the iTunes Music Store. It's a fabulous time-waster for one thing. I spent at least an hour browsing through their catalogue, just listening to the free 30 second streaming samples which they provide for each song. Some of these are daggy songs from my childhood & teens which I haven't heard for years, which I'd never think of buying - although at 99 cents a song, I guess that I could. It is dangerously easy to buy music on iTunes. Once you've given them a credit card number, it's all "one-click" purchasing. Before I knew it I had bought 5 songs. I am yet to test the features of transferring the purchased songs to other computers (up to 2 others) or burning the songs to a CD (up to 10 times), so I can't comment on how the DRM works in practice. The catalog is extensive enough to keep me busy & poor. It does have gaps in its content. For example, I noticed that a few prominent artists are missing (the Beatles & Madonna). Also, most of the catalog is mainstream in that the artists are somehow connected with a major record label. There's no reason why local and more independent artists (such as Australian alternative bands) couldn't appear on iTunes - or is there? Finally, the coverage is often incomplete for the artists which are on the catalog. For example, the only Crowded House albums on the catalogue are Woodface and the self-titled album. Also, not necessarily all the songs in an album will be on the catalogue - such as only 2 songs of Crowded House's self-titled album are included. None of this is very surprising or intimidating - as a law librarian, I'm very used to dealing "selected coverage" issues with electronic journals. Just because the library supposedly has access to an electronic version of a journal - it doesn't mean that the particular article which I'm looking for will be covered. You can find music by browsing through their catalogue or using their search engine. The search engine works well, especially if you're looking for something specific. One drawback with browsing is that you might not have the same definitions of "alternative", "pop" and "rock" as iTunes' catalogers. On the other hand, browsing gives you the chance to serenditously find music which you've long forgotten about. On the whole, I am very impressed with the iTunes Music Store. It's easy, legal and cheap - at least in my opinion. Most importantly, it seems to work. I'm sure that as it gets more established, it will improve in coverage and other functionality. By the way, there is a very interesting article about this in Salon - to read it you need to subscribe or watch an ad to get a daily pass. 9:30:17 AM

	Monday, April 14, 2003

copy-protected CDs designed to have a lower sound quality when played on a computer Copy-control CD complaint:Qld businessman complains to ACCC about EMI's copy-control discs, by SamVarghese, Sydney Morning Herald. The complaint by Tom Dullemond, who runs a small company in Gladstone that sells software for writers, is based on the fact that these discs, when played on Windows and Apple PCs, do not produce the high quality CD sound one might expect from what looks like a music CD. Dullemond, who has like many others had his email bounced when writing to EMI, said the discs stated (in tiny print) that they would only play on audio CD players and the Windows/Apple operating systems. Due to this, complaints from people who were unable to play these discs in PC CD-Roms or any CD-drive that strictly adheres to the redbook specs for CDs (audio-CD players can play copy-control discs because they are more error-prone; DVD drives or other high-precision CD drives will most likely not play the new discs) could not be followed up, Dullemond said. My complaint, however, stemmed from the fact (confirmed by EMI) that CC (copy-control) discs when played in Windows and Apple PCs do not play the high quality CD sound one might expect from what looks like a music CD. They play back a low bitrate compressed .WMV file in a proprietary software audio player, he said. Dullemond, who lodged his complaint in early March, said he received a call from the ACCC soon after. The ACCC lady who spoke to me conceded that not disclosing this information to consumers (I had to do some serious internet digging and EMI tooth-pulling to find this out) could be pursued by the ACCC. After all, a consumer is told the CD they buy can't be copied - they're not told that the CD plays back low quality sound on computer systems. The ACCC refused to confirm that any complaint had been lodged. [A blog doesn't need a clever name] 11:03:15 PM

	Thursday, February 27, 2003

what happens when the US government can seize any .com domain name? In Web disputes, U.S. law rules the world, by Michael Geist, in the Toronto Star. ... [A blog doesn't need a clever name] The [Anticybersquatting Consumer Protection Act] statute, which applies to dot-com, dot-net, and dot-org domains, reaches that conclusion by referring to the fact that the domain name system's root server, the database that houses all domain names and their corresponding numeric addresses, is located in Virginia. The use of the in rem jurisdictional provision is a classic example of legislating outside national borders. For example, the provision surfaced in 2000 in a dispute between two Canadian parties over the technodome.com domain name. Although the trademark holder could have launched a trademark infringement action in Canada, where the courts have addressed cybersquatting issues on several occasions, it chose instead to launch an ACPA action in Virginia where it successfully invoked the in rem jurisdiction clause by suing the domain name, rather than its owner. So it looks that at least for disputes concerning most important domains, all roads lead to Virginia and US law will apply. This is still going to be a contentious area. I remember how outraged people were that the High Court of Australia dared to assume jurisdiction in the Dow Jones v. Gutnick case - and dared to reach a different outcome than an American court would have. But that tussle over jurisdiction is miniscule compared with what could happen. This week the news has come out that the US Government has seized domain names for non-cybersquatting purposes. The Department of Justice has seized the isonews.com domain because of the Digital Millennium Copyright Act. The site sold mod chips and was a forum for people wanting to play bootlegged console games. In related news the DEA took over sites that sold drug paraphenalia. So what do you get when ultimate power of domain names rests in the US, and a US government that is willing & able to use this power to advance its political agenda? This could be very messy indeed. If the DEA could seize a domain in the name of the war on drugs, imagine what could be done in the name of the war on terrorism or the war on Iraq? If the PATRIOT Act and PATRIOT Act 2 are any examples, I don't think that the US Government is interested in being restrained with this power. 9:47:29 PM