Author Archive

The rhetoric of fair use

I’ve got a post about the rhetoric of fair use at Collectanea, regarding the CCIA complaint about misleading copyright notices and the response from the Copyright Alliance.


Golan v. Gonzales, UT’s Video Game Archive

I’ll be a guest blogger at Collectanea this month, and my first post gets to be about Golan v. Gonzales. ^_^

Yesterday, I had the chance to volunteer at UT’s Video Games Archives FUNdraiser. It rained, it was muddy, and it was great. ^_^ I’ll write more about the experience, video games and archives, Richard Garriott’s place, and more as soon as I have time to download a few pictures.

On a related note, today is apparently the launch party for Garriott’s new MMO, Tabula Rasa, at his estate. A pair of tickets was auctioned off at the fundraiser for $2100. Once we get the TR NDA release, I’ll have more to say about the game itself. ^_^


Judging Library Students in the 50s…

How would you rate the “general apperance” and “grooming” of your library student employee?
Would you say that the student is “cheap?” “Effusive?” “Queer?” Or has a “poor background?”

Alas, I don’t have the entire provenance of this document, which I finally got around to scanning after a few years. So I don’t really know if it came from the 50s, earlier or later… ^_^ Basically, this document was found in the back of an old piece of furniture in the Perry Castaneda Library at the University of Texas at Austin about three years ago, as the furniture was being surplussed. Someone thought I’d find it amusing and so passed it on to me, and I copied it.

The document is “The University of Texas Library School Student Rating Sheet,” date unknown, intended for librarians to evaluate their student workers from the library school. No one I’ve spoken to at the iSchool or the Library recognizes it, but it is funny and disturbing. ^_^

“Consider qualities listed at left below. Put a check after each quality in the column that will best describe the student. Do not try to check any quality for which you have no basis for judgment. Then consider qualities listed at right below. Put a check at the extreme right of any quality which you think you detect in the student.”

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Looking at the DMCA’s Safe Harbor

Does it work as intended? I guess that all depends on intent and perspective.

We’re pretty sure that AT&T and other companies (the pipes) are using packet content examination to prioritize and/or degrade certain kinds of traffic (ie, a reason they’re against net neutrality), and they mention that they may perform surveillance of the network in their terms of service. We’ve had reports of Time Warner doing similar things here in Austin. Theoretically, beyond being an egregious breach of privacy (with some pretty terrible implications for important legal protections such as privilege), those actions would seem to me that they would lose their DMCA Safe Harbor protections for online service providers, as they are both inspecting content and directing the way the traffic is being handled based on what’s in those packets. I recently mentioned this to an attorney active in the area, and he waived it off- they don’t care. They’re not the ones being sued, and they’re actively working with the content industries (or in some cases they are the content industries).

On the other hand, we have Google/YouTube et al. (the servers), who are being sued, do care about the safe harbors and rely heavily on those protections. Naturally, those protections are actively being worked against by both lobbying efforts and actions in the courts, as content industries jump on lawsuits challenging their safe harbor status.

And then we have an example of where the Safe Harbor “works” but not in a way that’s particularly satisfactory: Wendy Seltzer’s NFL/YouTube posting. She posted it. The NFL sent a cease-and-desist. It got taken down. She counter-notified. It got put back up. Then *the NFL sent another cease-and-desist.* So apparently content owners can apparently just continue sending cease-and-desist forms, leading to a ridiculous cycle of adding and removing content until someone gives up or some other type of harassment or similar lawsuit begins. She counter-notified. It got put back up. *sigh*

So, do the safe harbor protections work as intended? We know that DMCA notifications are being used, sometimes properly and sometimes improperly. So do they protect legitimate interests? Sure. Do they hurt legitimate interests? Sure. Do people have an incentive to comply with the DMCA requirements? You would think so- but the network service providers don’t seem to care. Those safe harbor protections are better than nothing, and vital for some server services- but they don’t adequately protect the public interest in the use of copyrighted material.

The results of the Viacom/Google suit- if not settled- will be telling.

And now, the NFL is using property rights and contracts to severely limit news. Again, legally permissible- but certainly in poor form.

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Fantasy & Copyright News

Two separate things, for the most part- although I can see some intermingling approaching.

I’m unabashedly a fan of the fantasy genre. I read the final installment of Harry Potter the day it was released; for those of you looking for more news, Rowling has provided more details about what happens to the crew in the future in a few places. Naturally, there are a few odd contradictions in there. Prior to that, I read Victor Vinge’s Rainbow’s End- really, any librarian-type interested in SF should read it; it’s got some interesting ideas, like the “Friends of Privacy” who spread disinformation on the Net, and a few interesting takes on digitization in the library. Since then I’ve read Jim Butcher’s Dresden series and Sergio Lukyanenko’s Night Watch series (the three of the four translated into English). All in all, good times. ^_^

Well, here’s a Potter derivative work I can’t get out of my head at the moment, via Youtube, the Potter Puppet Pals and the Mysterious Ticking Noise.

Lots of things going on in the copyright front, including some backing off on the improperly pressuring universities I mentioned earlier. I’ll share a couple of things that are sticking out in my mind at the moment. First, rumor has it that individual members of Congress are being lobbied to reform the DMCA in such a way that removes some of the safe harbor provisions for OSPs. No big surprise if it’s true.

Beyond the rumor stage, the Computer and Communications Industry Association has filed a complaint with the FTC against groups including the NFL, the MLB, NBC Universal, Morgan Creek Productions, DreamWorks, Harcourt, Inc., and Penguin Group, Inc. The complaint and more information can be found at The complaint deals with one of my personal pet peeves- copyright statements that are far beyond what the copyright holder has a right to claim. For example, “no part of X may be copied without the express written permission of Y.” Or “any pictures, descriptions, or accounts of the game without the Z’s consent is prohibited.” They’re not accurate in the slightest, because of the copyright exemptions that they neglect to mention and/or are attempting to ignore. For some unexplained reason- I suppose in a misguided attempt to get “the other side” of the story- the New York Time’s coverage gets a response from one of the attorneys in the Google/Viacom suit, who claims that this move is just trying to to take away attention from that suit and that Google is looking for free use rather than fair use. The issues are separate, if related, and Google is by no means the only player here. The ol’ rumor mill again says that the content industries are not happy about it. I’m fine with that- unlike many copyright situations, I feel pretty strongly that they’re in the wrong. Of course, I’ve read more than a few of the licenses that certain members of the CCIA have out there as well, so there’s a few things they can also work on.

Speaking of licenses, the Ninth Circuit recently ruled that a company couldn’t change it’s contract without notification on it’s Web site. In a move that seems like a victory for common sense, the court stated that “[e]ven if Douglas had visited Talk America’s Web site to pay his bills, he would have had no reason to look at the contract posted there,… Parties to a contract have no obligation to check the terms on a periodic basis to learn whether they have been changed by the other side.” Now, I haven’t had a chance to read the decision yet, but it sounds promising when thinking about the ridiculous terms of use and portions of EULAs that have become so prevalent.

Eminem’s publishing group is suing Apple over offering his songs on iTunes without their consent. Apple does have consent from the Universal Music Group, which does own the recordings, but not from Eight Mile Style, which apparently owns the score and lyrics. Apple has been sued by Eminem’s representatives before, for using a song in an Apple advertisement without permission. Various news sources on the Internet have stated that the earlier case was won by Eminem, won by Apple, or settled, which I guess says something about various news sources on the Internet… but I believe it was settled.

In other interesting news, the Texas Digital Library now has a blog dedicated to scholarly communication in the networked world, the Scholar’s Space. Georgia Harper is blogging there, among others, and it already has some interesting posts about publishing, open access, and other issues.

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The Other Shoe Drops

Something of a downer after watching Harry Potter and the Order of the Phoenix in 3D at the IMAX, and even more significant finishing the Deathly Hallows. More on that later.

Senator Harry Reid has introduced an amendment to Senate Bill 1642, which itself extends and amends the Higher Education Act. You can find it at in the Congressional Record for amendments proposed on July 17th; it’s called “Campus-based Digital Theft Prevention.” The text of the bill is reprinted below.
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Google and Privacy

Seth Finkelstein of Infothought has been writing articles for the Guardian. His latest discusses a few things to consider about Google and Privacy.

The task is then to prise out any abuses from behind the wall of corporate secrecy. Otherwise, we could end up with an unholy alliance between corporations and governments, where corporations act as privatised spies for governments, while government data retention mandates are used to give corporations an excuse to keep the sort of detailed records they’d want to in any case for market research and sale.

Google has done some very amazing and innovative things. One of the consequences of their success and their practices is that while they attempt to do no evil- and I honestly believe that many, if not most people at Google earnestly do want to practice that philosophy in more than a superficial marketing sense- they can be involved in questionable activities.

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Gorman on Copyright

Michael Gorman’s recent Brittanica link-bait attack on users of the Internet mentions copyright. It disturbs me that a former president of the American Library Association would offer both such a simplistic view and one not backed up by research- especially since this article complains of that very issue.

There is today a concerted and multifront assault on copyright spurred by monied interests and the desire of consumers to use digital technology to get something for nothing. This assault has created a mindset that sees the notion of intellectual property as a barrier to progress rather than what it is—an affirmation of the singularity of the human intellect and personality. Because few people like to admit to being motivated by greed and self-interest, these assaults on intellectual property are often couched in high-minded digital jargon and/or weasel words.

First, the suggestion that the concept of intellectual property has been used as a barrier to progress goes far, far beyond the straw man argument that he presents, as he makes the intellectually dishonest conclusion that the “assault on copyright” is the work of those who trade files. We have well-reasoned, published (and therefore presumably at least moderately more acceptable to Gorman) works by Lawrence Lessig, Siva Vaidhyanathan, Kembrew McLeod, and others who strongly argue for copyright reform, and many are critical of the property metaphor. Furthermore, the Romantic view of the genius of the Author has been a subject of much debate in academia for decades. Additionally, copyright law in the United States is not solely based on this view of authorship, but on the utility of offering creators that limited monopoly for the ultimate benefit of the public. I could go on, but I’ll spare people the relatively common arguments against the narrow view that Gorman presented. It is possible to respect the author and advocate copyright reform.

Now, I’m fairly certain that Gorman has at least heard those arguments, since many of those views are actually reflective of the policies of the American Library Association. (Recall that I am an American Library Association Copyright Scholar.) The work of libraries and the research that Gorman holds in high esteem benefit from not holding his view. I am adisturbed that I fail to see research backing his arguments in his texts. I am more disturbed that Gorman’s beliefs will be forever associated with the views of the ALA.

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Free as in digital speech.

I wrote recently about AT&T’s commitment to filtering technologies. Via it’s helpdesk, Time Warner has apparently announced that it’s now using packet shaping technologies. So much for the Net Neutrality debate.

“Packet shaping” technology has been implemented for newsgroup applications, regardless of the provider, and all peer-to-peer networks and certain other high bandwidth applications not necessarily limited to audio, video, and voice over IP telephony. Road Runner reserves the right to implement network management tools for other applications in the future.

There are certainly issues with free speech here. No, it’s not the government blocking speech, but I don’t find that less worrying in the least. Quite the contrary.

1) Commercial entities blocking or degrading speech is incredibly problematic, particularly with the lack of real competition (if you’re a free market person). The choice of a single cable company or a single phone company isn’t really that much of a choice. I’m sure anyone can think of ways in which the implementation of these technologies could potentially to do harm. Here are a couple: degrading the ability to transmit a message- where already restrictive digital technologies backed by law (like banning the use of anti-circumvention tools that block legitimate uses via the DMCA) and corporate policy (like search engines blocking content in China, or filtering technologies blocking content in libraries) have had some serious impacts on fair uses, copyright exemptions, and basic access to information. Another is the potential for anti-competitive behavior, when ISPs have the ability to degrade the performance of rivals. These concerns are more obvious with the movement of ISPs into the content arena, where they now feel they have a right to police content (like AT&T from the earlier message). Furthermore, it’s easy to predict that in order to get content from other members of the entertainment industry they might be required to implement some of these technologies.

2) How long is it going to be before there’s legislation attempting to use packet shaping technologies? These technologies presumably base their packet shaping routers on information taken from the packets themselves (beyond just monitoring bandwidth). When is someone going to propose to filter for content or technologies that some members of the government don’t like (pornography, P2P, encrypted traffic, name it)? Think about members of Congress that want universities to act on the perceived P2P problem- and the universities have have already started blocking P2P traffic.

I wonder- does the use of packet examining technologies remove the DMCA safe harbor protections for Online Service Providers?

Traffic shaping technologies have been around previous to this, and aren’t always a bad thing- there are certainly arguments for applying traffic shaping to worms and systematic denial of service attacks- but the potential for abuse definitely needs to be considered as they’re growing in popularity, implementation, and possibly effect. I’m going to be trying to figure out if these are new or different uses of the technologies.

Update: An update based on a question I received. There are many kinds of software applications that might affect the traffic that gets to your computer. Here are a couple.

1) Content Filtering technologies. People can use this term to mean different things. There’s Net Nanny or other forms of censorware (yes, my use of that term indicates where I stand on most implementations of that software). In that situation, filtering is based on content but usually implemented at a local level (think business or school). When I’m referring to filtering software in this case, I’m usually referring to that.

Some people also describe a firewall, anti-spyware, or anti-virus software that blocks unwanted traffic as filters, and there’s also use of the term to describe moving data streams from one application to another.

2) Traffic shaping /packet shaping technologies, which can throttle traffic (potentially affecting performance) or block traffic entirely. These technologies could be monitoring bandwidth, protocols on the network (http, ftp, udp,etc.), or could be examining packets themselves. These are often implemented at the edges of a network, such as where traffic enters or leaves a local network. One of the concerns I have is the harm in the use of these technologies to filter or degrade based on content.

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The Return of the Broadcast Treaty

The World Intellectual Property Organization (WIPO) out of the United Nations, is one of the two major international bodies that deals with copyright treaties. (The other is the World Trade Organization through it’s Agreement on Trade-Related Aspects of Intellectual-Property Rights. There are other bodies involved, but those are the big ones.)

Last year, representatives from WIPO proposed a Broadcasting Treaty that would give Broadcasters rights to restrict copying. That would be a significant change to copyright law as we know it for a variety of reasons- one of which is that broadcasters generally don’t own the copyright in the work they broadcast (beyond their ability to publicly distribute the work). It basically creates a new set of exclusive rights for distributors, and overrides existing copyright law and even the wishes of the creator/copyright holder when those are in conflict. For example, under the proposed text broadcasters could restrict access to public domain works or works licensed under Creative Commons. It also has no provisions for fair uses of material.

There was such opposition to it that representatives from WIPO said they would narrow the scope of the treaty. However, the new proposed treaty not only keeps pretty much the same language, but it also provides additional regulation for devices that could potentially include computers- any “device or system capable of decrypting an encrypted broadcast.”

EFF’s site:

You can see some of the text on WIPO’s site:

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