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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 defendfairuse.org. 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.

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 thomas.gov 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.
Read the rest of this entry »

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.

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.

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:
http://www.dearwipo.com/info/

You can see some of the text on WIPO’s site:
http://www.wipo.int/meetings/en/html.jsp?url=http://www.wipo.int/edocs/mdocs/sccr/en/sccr_s2/sccr_s2_paper1.doc

I’m taking a public policy class with Gary Chapman at the LBJ School of Public Policy this summer. Here’s a message I just sent to the class list and EFF-Austin’s discuss list-

The rumor was true- basically, it looks like AT&T wants to implement content filtering on the network end of things. The article has quotes from Fred von Lohmann of EFF and Gigi Sohn of Public Knowledge, but one thing the article doesn’t mention is how unlikely it is that any kind of filtering technology can adequately protect copyright exemptions- an incredibly importart part of the law that is supposed to represent public interests. The reason that a technological solution won’t work is that the law is intentionally vague in certain areas, such as fair use (17 USC Section 107) and grants a good amount of leeway in the use of content in others (such as educational institutions, provided certain requirements are fulfilled). The vagueness of fair use exists for a number of reasons, one of which is the recognition that fair uses are going to be very context dependent.

http://www.latimes.com/business/printedition/la-fi-piracy13jun13,1,402794.story?coll=la-headlines-pe-business&ctrack=2&cset=true

Fun quotes:

“As AT&T has begun selling pay-television services, the company has realized that its interests are more closely aligned with Hollywood, Cicconi said in an interview Tuesday.”

“Cicconi said that once a technology was chosen, the company would look at privacy and other legal issues.”

I’m at the Managing Electronic Records Conference in Chicago, again volunteering as a student. I’m tired, but it’s been a good experience. One interesting thing to note is that it looks like the commercial and legal communities are going to be paying more attention to authenticity in the digital environment.

Peter Hirtle has a post up at Library Law about the recent actions of public.resource.org. To make a long story short, the group took the photos that they believe are in the public domain, ignored Smithsonian’s notices that they controlled the images, and are making them available to the public. Hirtle is a known proponent of open access to public domain works and has commented on archival issues with copyrighted material in the past (also linked from his post), and although he is somewhat sympathetic to the group’s arguments he thinks they crossed the line. I’m not so certain that what they did was illegal in all circumstances- I’ve read the policy, but I think that the idea that merely stating “By doing X you agree to Y” is just as ridiculous as anything else out there- but Hirtle also points out that we don’t know if all of those works are actually in the public domain. At any rate, the whole terms of use, EULA, and other contract and licensing restrictions in a digital world are in bad need of evaluation and possible reform, in my humble opinion.

Later I’ll try to write more about some of the problems archives and museums, in particular, face with this type of attempted control.

Interesting. Stanford is instituting a reconnection fee for students who have had their network connections disconnected as a result of receiving a DMCA notice. If after 48 hours a student has not responded to a notice, Stanford will disconnect the student from the network.

A few things to note.

-The letter ends with a similar fallacy to NYU’s: “File-sharing copyrighted content without permission is against the law…” I’d request they be more precise. File-sharing copyrighted content without permission might be illegal depending on the circumstances. The file-sharing they are attempting to address very likely is against the law. But they’re more accurate with a following line: “Downloading content illegally through the Stanford network is not an acceptable option.” That is, saying “All file-sharing of copyrighted content without permission is illegal” is quite possibly incorrect, and “Using the network for illegal purposes is unacceptable” is much more palatable. Don’t assume that students don’t know or care about the distinction.

-A DMCA complaint does not necessarily mean that the law has been broken. Their message and policy does not address that in any way. Yes, dealing with the DMCA is a hassle. Yes, in many cases on a university campus, the DMCA complaint is legitimate. But that’s not always the case. The policy does not address exceptions, for first or subsequent complaints (which have harsher penalties). The receiver of the complaint is guilty if they don’t respond within 48 hours. Unless they’re not. But they’ll still have to pay for the hassle that the copyright holder causes the university. I’d also request they take that into account.

Stanford doesn’t have all of the protections that public universities have, and their copyright policies tend to reflect that.

Reuters has reported that the 9th Circuit has ruled that Google is allowed to make thumbnails of Perfect 10’s images. The lower court’s ruling was affirmed in part, reversed in part, and remanded.

“We conclude that the significantly transformative nature of Google’s search engine, particularly in light of its public benefit, outweighs Google’s superseding and commercial uses of the thumbnails in this case,” the judge wrote.

The courts have overturned the injunction placed on Google. The text of the decision covers many interesting areas. Although the court considered fair use an affirmative defense,

…a party seeking a preliminary injunction in the copyright context bears the burden of showing its likely success in overcoming a fair use defense is consistent with decisions of the Federal Circuit purporting to apply Ninth Circuit law. See Atari Games Corp. v. Nintendo of Am. Inc., 975 F.2d 832, 837 (Fed. Cir. 1992)

The courts also stated that linking does not infringe on the copyright holder’s right to display, although they note that

Google may facilitate the user’s access to infringing images. However, such assistance raises only contributory liability issues, see Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 929-30 (2005), Napster, 239 F.3d at 1019, and does not constitute direct infringement of the copyright owner’s display right.

The same held true for Google’s cache- Google only copied the text with links, not Perfect 10’s images, and so was not infringing on the display or distribution rights. The court also looks at users’ cache copies:

The copying function performed automatically by a user’s computer to assist in accessing the Internet is a transformative use. Moreover, as noted by the district court, a cache copies no more than is necessary to assist the user in Internet use. It is designed to enhance an individual’s computer use, not to supersede the copyright holders’ exploitation of their works.

Not everything in the decision will please Google- although the court determined that Google was not vicariously liable for infringement, the remanded potion of the case seems to be based on whether or not Google has contributory liability, and has specified guides to determine whether or not they are liable.

… Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10’s copyrighted works, and failed to take such steps.

The courts will also need to consider whether Google’s liability is limited under Title II of the DMCA.

Update: Alfred Yen shares some thoughts on the case at madisonian.net.

C. Petite of Scriveners Error reported yesterday that the Ninth Circuit has declined to rehear Kahle v. Gonzales en banc. (Kahle v. Gonzales is the case the challenges the constitutionality of changing the copyright system from an opt-in system to an opt-out system.) I disagree with Petite a little bit; I don’t believe that fair use as it exists adequately addresses First Amendment concerns. (Of course, he stated that the First Amendment problem is a settled matter of law, which is really not the same thing.) At any rate, I think Seth Finkelstein was correct in his response on Lessig’s blog when the case was first decided: the court views procedural aspects of copyright as Congress’s bailiwick, and thus treats Kahle like the Eldred case.