COPYCENSE

The Copycense Clippings train keeps on rolling this week, with stories about copyright infringement in the blogosphere; the intersection of trade policy and intellectual property; and the allegation that House Speaker Nancy Pelosi is a “pirate.” (We couldn’t have made that one up if we wanted to.)

Article of the Week

Peter Gutmann. A Cost Analysis of Windows Vista Content Protection. Feb. 18, 2007. (Last update) Have you seen one of the latest “I’m a Mac, (and) I’m a PC” commercials (entitled “Security”), in which a Secret Service looking guy repeats the communication between the two actors and asks the PC “Cancel or Allow?” Well this article affixes a price to that “Cancel or Allow.” Essential reading for systems administrators and anyone interested in the economic costs affixed to DRM. Categories: Computers & Technology; DRM & Copy Protection; Research.

Quote of the Week

“The bottom line is that a copyright is a bundle of rights that should, in my opinion, always be protected by a contract. Who owns the rights and who doesn’t depends on what your contract says, what’s agreed to and many other factors you have to hammer out with your service provider.” Aurora Brown. Web Services, Contracts and Copyright. WebProNews. Jan. 18, 2007.

Granted this article was better posted in Clippings 1.04, which we earmarked as a catch-up edition, but we present it here as our Quote of the Week (QoTW) for the following reason.

It’s not so much that Ms. Brown’s quote is full of sage advice. Instead, we bestow upon Ms. Brown our QoTW designation because her quote really gets at one of the central issues in the digital economy: the extent to which a negotiated, private contract, adjudicated under state law, overrides the federal law of copyright. To us, many of key issues in the broader digital copyright debate — including duplication prohibition software (framed and otherwise known as “digital rights management” — come down to this very issue, at some point.

We agree copyright is a bundle of rights; we are not sure we agree that those rights always should be protected by a contract — even if contemporary conventions lean toward wrapping copyright protections within the terms and conditions of a private contract. We believe doing so sets of a dangerous precedent: namely that contracts can trump federal copyright law at any time. ProCD vs. Zeidenberg notwithstanding, we think that’s simply wrong.

Random Thoughts

So, really the Oscars awards ceremony means little to us. But we had to smile when Forest Whitaker and Martin Scorcese finally — finally — received the acclaim both have deserved for so long.

CommuniK. Clippings

Rose DesRochers – World Outside My Window. Copyright Infringement is Alive & Well in the Blogosphere. Feb. 26, 2007. This post hit home for us because a few of our colleagues have asked us how to handle Web sites that copy their content verbatim. In the typical situation, we suggest a nice, but strongly worded letter to the site’s Web administrator, followed by a DMCA takedown notice to the site’s ISP if the content is not removed within 24 hours.

We know what you’re thinking: for the past two weeks, we have been routinely crushing ISPs and other Web sites — including GoDaddy and Google — for caving in to what seemed to be weak DMCA claims. So let us be clear about our position.

We don’t like using the DMCA takedown provisions. We think ISPs have chosen to interpret these provisions in a lame manner. We know the procedure has been abused. But we do not (and will not) hesitate to use these laws properly, or recommend that others use them properly, if direct, person-to-person notice faila to resolve what are pretty straightforward problems of copyright infringement. Categories: DMCA; Infringement; Web & Online.

Clippings

• Noam Cohen. Which Videos Are Protected? Lawmakers Get a Lesson. The New York Times. Feb. 26, 2007. Nancy Pelosi: pirate. We love it when stupidity like this happens. Maybe then Congress will begin to think twice about these asinine laws they have been passing in the name of “protecting the information economy.” (No, we don’t think so either.) The more important issue, though, is the copyrightability of government works, which relates to the public domain. Categories: Bundle of Rights; Infringement; Law, Legislation & Regulation; Public Domain; Web & Online.
• Andhra Pradesh. Special Court for Video Piracy Cases Sought. The Hindu. Feb. 26, 2007. It takes a heavy, swinging pair to go into another country and demand that it create a special court to deal with the complaints of a handful of foreign, private companies. But emboldened by the Special 301 process and the help of the U.S. Trade Representative, Big FIlm can do just that. Categories: Film; International; Law, Legislation & Regulation.
• Michael Geist. Open Access: Reshaping Rules of Research. Toronto Star. Feb. 26, 2007. The razor sharp Michael Geist discusses how the open access movement is affecting scholarly research. Categories: Education; International; Open Access; Research.
• Stephanie Ho. U.S. Trade Rep Urges Greater Chinese Copyright Protection. VOA News. Feb. 25, 2007. Any time you hear “trade” and “intellectual property” in the same sentence, pay close attention. This trend is what William Patry has called in a recent interview with us “a corrosive factor in democracy.” The practical problem in this instance is that the U.S. cannot walk all over the Chinese and get what it wants (which is, primarily, American corporate access to the Chinese markets.) Still, keep tabs on this issue, since it will bear on how the U.S. deals with other countries. Categories: International; Law, Legislation & Regulation.
• Brad Stone. Software Exploited by Pirates Goes to Work for Hollywood. The New York Times. Feb. 25, 2007. If Big Content had the foresight to do this, oh, five or six years ago, it woulda been a contenda. Now, the initiative has to challenge iTunes’ dominance and the specter of Big Content-sanctioned, DRM-less music and movies. Instead of a win, this move is yet another example of how lost the content companies are in their ability to manage. Content: File Sharing, P2P & Downloads; Film; Music.
• Ars Technica. EMI to Apple, Microsoft: Ditching DRM Is Going to Cost You. Feb. 25, 2007. We should have known Big Music couldn’t wean itself off the teat of cold, hard, immediate cash. Can’t you just hear Joe Pesci at his Goodfellas best saying “F*** you, pay me”? Categories: DRM & Copy Protection; Music.
• Jessica Mintz. More MP3 Patent Suits Due? MercuryNews.com (via The Associated Press). Feb, 24, 2007. Not even Microsoft can ignore a $1.3 billion jury award in a patent lawsuit. Is the award absurd? Possibly. Will this lead to some proposed changes in the patent system, perhaps through the U.S. Trade Representative? Probably. Categories: Cases & Litigation; Infringement; International; Patents.
• Sumner Lemon. Apple, Cisco Settle iPhone Dispute. Macworld. Feb. 22, 2007. Both companies have the right to use the name? That sounds odd. But Apple is in an interesting position. We are guessing that ever since the iPod became the most popular consumer electronics device since the Sony Walkman, companies other than Apple have been registering all sorts of domain names and trade names, hoping to play a game of “Gotcha!” should Apple develop a product and want to use the iWhatever branding. Now, if Apple files either a domain name or an intent-to-use trademark application on some of these ideas, they risk losing secrecy, which is to that company as kryptonite is to Superman. Otherwise, though, you risk the sort of action they just settled with Cisco. Categories: Tech & Devices; Trademark.
• Elinor Mills. FAQ: Serious Challenges for Sirius-XM Merger. News.com. Feb. 20, 2007. As always, solid reporting from News.com, here on the proposed Sirius-XM “merger.” But we must acknowledge BusinessWeek, who called this back in December. Categories: Antitrust; Broadcasting & Journalism; Web & Online.
• Wes Phillips. The DRM Beat Goes On. Stereophile. Feb. 18, 2007. This very good article provides a good scorecard to the commentary that ensued after Steve Jobs called for the elimination of DRM, and points an accurate finger at Jobs for what some consider the pot calling the kettle black. Categories: DRM & Copy Protection; Music.
• Paul Meller. EU to Push Online Publication of Scientific Data. Infoworld. Feb. 15, 2007. Even though Big Publishing’s sexiness quotient is considerably lower than Big Music’s, the Web’s continued disruption of the publishing industry is as interesting — and potentially, more important — than the same disruption occurring in the music industry. Categories: Books; Open Access; Science & Medical; Web & Online.
• Convergence Culture Consortium. Google Hands Over Names to Fox in 24 Piracy Controversy. Feb. 15, 2007. We anticipate that businesses such as GoDaddy may bend over and spill clients’ information based upon an errant understanding of the DMCA, or an ignorance of it. We expect Google, however, to know better. Why is it that online businesses have become willing to be so utterly spineless in the name of the DMCA safe harbor? Categories: DMCA; Privacy & Security; Web & Online.
• Digital Markets. Google: Is Robots.txt Really a Copyright Infringement Defense? Feb. 13th, 2007. Interesting post by Donna Bogatin, who takes Danny Sullivan to task for reporting that suggested that use of certain metatags could keep search engines from spidering certain Web sites. (Both posts are related to Google losing a copyright infringement decision in Belgium to Copiepresse.) I’m not sure Sullivan went so far as to suggest that such technical coding may (or should) serve as an affirmative defense to copyright infringement, but together, the Bogatin and Sullivan posts point to the need for tech reporters to really understand copyright law much better than they do. Categories: Cases & Litigation; Infringement; Web & Online.
• Seltzer.org. My First DMCA Takedown. Feb. 13, 2007. No one — not even knowledgeable law professors — are immune seemingly ridiculous and legally questionable DMCA takedown notices. Categories: Broadcasting & Journalism; DMCA.
• Ellen Nakashima. Congress Seeks ‘Bite’ For Privacy Watchdog. WashingtonPost.com. Feb. 13, 2007. “Key lawmakers want to replace a White House privacy and civil liberties board created by Congress in 2004 with one that is more independent of the president. The idea is to make the board more like the one envisioned by the bipartisan 9/11 Commission.” Well, how about that? A privacy board independent of POTUS. What a novel idea. Categories: Privacy & Security; Law, Legislation & Regulation.
• ArsTechnica. Microsoft Launches PlayReady Interoperable DRM Platform for Mobile Devices. Feb. 12, 2007. PlayReady is Microsoft’s inroad to the subscription/pay-per-view mobile market. The new platform is geared for music, photos, ringtones, videos, and other media distributed through subscription or other fee-based means. It will be backwards compatible with their previous platform, Windows Media DRM 10 in addition to being interoperable with other DRM using content providers. Microsoft will be demonstrating the new technology at the 3GSM conference in Barcelona. Categories: DRM & Copy Protection; Tech & Devices.
• ArsTechnica. EU May Require “Cooling Off” Period For Online Music Sales. Feb. 12, 2007. The European Commission is seriously considering making all digital media sellers have a “cooling off” period – time for the customer to return the purchased media. This will cause huge problems for those selling music via the Internet because they will have to create a way to allow buyers to return individual tracks. The issue here is that by allowing buyers to return individual tracks there is no way of putting a stop to burning the song to a CD before returning it. Categories: International; Law & Regulation; Music; Tech & Devices.

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