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Friday, August 23, 2002 |
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Copyright Law - what should it be? I agree with this statement. And these points are also right on the mark.
These articles are not contradictory. Weinberger agrees that copyright holders should be paid, and says that we should be very careful in passing legislation that affects the Internet. We shouldn't let the large companies convince us to pass laws that significantly affect the Internet simply because they (supposedly) are not making even more money than they already are. There may be good reasons to regulate the Internet (I suppose), but pure corporate profit is not one.
The TechCentral article focuses on the problems that P2P (which is what the Internet is) brings for people who create content that can be distributed digitally (which is just about everything these days). If I were Dave, a creator who wants to have perfect control over his creations, I'd be totally in favor of DRM, and legislation to let content creators disable software that people have illegally stored on their hard drives. And I'd also be in favor of Knight-Ridder locking down its web content and making people pay to link to it, or even to read it. That's just capitalism. No problem with capitalism, as far as I can tell. Dave works hard and he should make as much money as the system will lawfully allow him to make.
But neither article proposes how to solve the problem. Not really. And neither do I. I do make this small observation. It is not a good idea to allow legislation that affects the Internet to be primarily based on economic interests of people who make money off of content. The Internet is about more than making money; it is a communications network. Booksellers would make more money if libraries didn't exist, but we allow for libraries to exist. Why? Because sharing knowledge is perceived to be more important than money. I know. None of this makes any sense, does it? [Ernie the Attorney]
22:54
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Wired: "[Verizon] refused to comply with the order, arguing the entertainment industry is presuming the guilt of its users without any due process." [Scripting News]
21:50
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Porn Biz Has a Net Stalker. You'd think those in the porn industry would get used to nasty e-mails, but threats are a different matter. The FBI is investigating. By Noah Shachtman. [Wired News]
21:46
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Amy Wohl: "Copyright remains an inappropriate mechanism for protecting software because the right model would let IP owners do what Dave Winer does with his software -- let people develop on top of it or even create another version of it and do that legally -- while still protecting his right to collect revenue from the use of the software itself, should he choose to do so." [Scripting News]
21:46
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John Robb: "That a puny $20 billion industry is on a path to potentially cause $100 billion in damage to the US economy based on less than $1 billion in suspected damages defies reason." [Scripting News] ... I wonder where all this Numbers come from
21:46
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Return to Sender -- 55,000 Times. Rogue e-mail sent in the name of pro-Palestinian activists overloads inboxes and stirs up bad feelings among those united for a common cause. Question is, who's to blame? By Noah Schachtman. [Wired News]
21:42
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Self-Help. Lawyers use the term "self-help" to refer to all of the little steps people take to protect themselves. Locking your... [Freedom To Tinker]
21:03
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Stop Spam with Haiku. Habeas Inc. is working to filter spam from your mailbox through an aggressive strategy based on standard copyright and trademark law. Through the company's licensing agreement, you are allowed to insert a copyrighted haiku into the headers of your email, notifying the recipient that the mail is not spam. Anyone who uses the haiku in violation of the license will... [a mad tea-party]
20:51
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Breaking News... A Real Shocker!. The New York Times reports that it is damned near impossible to teach ethics to business school students. Robert Prentice, professor of business law at the UT-Austin b-school suggests employing actual lawyers to teach business law to management students. He makes a good point about the business of ethics: in economic terms, "any business strategy or activity that does not... [a mad tea-party]
20:51
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Newsstand Report. While traipsing about town last week I came upon a new legal periodical, Legal Affairs. The magazine, a non-profit affiliated with Yale Law School, bills itself as "The Magazine at the Intersection of Law and Life." The magazine's take on the law isn't technical; the editors want to explore law in the context of culture and society. To see the... [a mad tea-party]
20:51
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Why not use public opinion to interpret the Constitution? - well, it's a ridiculous idea because the general public lacks the requisite legal expertise. So then why does the U.S. Supreme Court seem to be drifting in that direction? Howard Bashman's article in Slate provides a clear analysis of why it isn't a good idea to declare things "unconstitutional" without sound basis (public opinion is not a sound basis). The Constitution may be a living document, but it's damn hard to amend. Remember the ERA? A good idea, but the proponents used the wrong approach. Maybe they should have courted public opinion and then gone to court. [Ernie the Attorney]
20:47
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CDR analyses flawed UK implementation of European Copyright Directive. The UK Patent Office has published its proposed implementation of the EU Copyright Directive (or EUCD, the European approximate equivalent of the DMCA). Unfortunately, in its current state it's little better than the DMCA and in several cases actually worse; see the Campaign for Digital Rights' complete analysis of the proposed implementation for details. But it's not law yet - we have a chance to fix this one. [kuro5hin.org]
20:33
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I feel so much more secure. The Sydney Morning Herald is reporting on $253 million (US) worth of war games that took place this month, and the retired Marine Lieutenant General who protested the fixed result "by quitting his role as commander of enemy forces". (The Washington Post also has a story.) "The Army Times reported that, as commander of a low-tech, third-world army, General Van Riper appeared to have repeatedly outwitted US forces." Apparently the forces he commanded, which were meant to imitate an unnamed Middle-Eastern country, were able to get around a lot of the high-tech weaponry US planners have begun to depend on, such as the ability to eavesdrop on the communications of the other side (Van Riper used motorcyle couriers). This made the war machine look bad, or would have if it had been reported widely enough. Is the result, which Van Riper says was fixed in advance, supposed to make me more confidant in the ability of US planners and war-makers to roll over Iraq? All I get out of this is the feeling that, once again, this Adminstration is not being honest with itself about the costs of the actions it wants to take for political gain. [kuro5hin.org]
20:33
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No full disclosure in art? That's what Dave says (see below)
Anyway, I don't trust people who tell me that Hemingway reveals all his source code when nothing could be further from the truth. A writer of prose reveals the final copy and nothing more. He doesn't reveal the life experiences that taught him the lessons that the book teaches. He doesn't tell you which ideas he stole from other books he read. He omits all the blind alleys and dead ends, the characters and plot ideas that didn't make the cut. The novelist omits the text of all previous books, and that's interesting because many if not all authors write the same book over and over, refinining it, narrowing the focus, taking stuff out, amplifying and discussing. Some of my favorite authors work that way. Bottom-line, despite what Lessig says, there's no full disclosure in art.
Sigh. Okay, let's see where to start? I studied Hemingway at Tulane one semester. The professor came in and talked about particular passages of the book. We discussed Hemingway's suicide, and how he was raised. We talked about the influences of the times that he lived in and what effect those might have had on his writings. All of that information was freely available. We know that Ezra Pound heavily edited The Wasteland, and in fact you can buy a copy of the work that shows what T.S. Eliot's poem looked like before Pound edited it. People debate which version is better. Of course, it's true that Pound and Eliot could have kept us from knowing the exact details by not publishing it, but they didn't.
Or let's talk about music. You've got a lot of 1-4-5 progressions out there in rock music. In jazz you've got modulations to new keys. You can read the exact score of a symphony and analyze it with colleagues. Do you see you that chord there is not really in the key of this piece? Why is that? Why does that sound pleasing to our ear? Do you see how the composer delayed the resolution back to the Tonic with that chord? Musicians talk about this stuff all the time and they are looking at the source code when they do it. They might have to pay for it, but that's okay. They get to see it. And that fosters learning. Anyone who says different is either foolish or not paying attention to what we are really talking about here. [Ernie the Attorney]
20:32
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bbc: Author sued over Islam 'insult'. Four Islamic groups have launched legal action against French novelist Michel Houellebecq for allegedly insulting comments about Islam made during an interview. He could face up to a year in jail. The action against Mr Houellebecq, 44, is being launched on 17 September by plaintiffs including Saudi Arabia's World Islamic League and the Mosque of Paris. Dalil Boubakeur, rector of the Paris mosque, said Muslims felt insulted by comments in the novel Plateforme, in which a... [bplog]
20:20
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cybercrime: Computer Crime News Update: DOJ Manual. Orin Kerr provides a helpful summary of a new US DoJ manual on computer search and seizure. Amongst other things, the manual covers the conditions under which a warrant is required for network surveillance and wiretapping. 2) The new manual makes a surprising concession that the Supreme Court's 2001 decision in Kyllo (the thermal imaging case) may apply to Internet surveillance. While my best guess is that courts will see Kyllo as a case about privacy protection in the... [bplog]
20:20
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activedayton: Big Brother hiding inside cars' airbags. The Dayton Daily News reports on law enforcement attempts to obtain crash data recorded by diagnostic modules in recent model cars. There are few recorded instances of such data being used in court, but the privacy implications may be enough to increase demand for cars with limited - or absent - recording capabilites. Since 2000, it's become possible with the right computer decoding software to retrieve and read information stored in the SDM [Sensing Diagnostic... [bplog]
20:19
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reuters: Paris Prosecutor Probes Jewish Web Site's Hate Call. A French court is considering banning a web site that accuses celebrities of anti-semitism. The site, which is presently unavailable, appears to be hosted in the US. The Web site alleged the celebrities on the list, which included Oscar-winning actress Juliette Binoche and best-selling writer Regine Deforges, backed a French boycott of Israeli products to protest Israeli government policies. [...] The prosecutor's preliminary inquiry followed a complaint earlier this... [bplog]
20:19
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ap: Calif. Court Lets Gag Orders Stand. AP reports on a California Supreme Court decision to uphold gag orders on two murder cases. Media lawyers argued that the orders are becoming a routine method of unconstitutional prior restraint. The court issued its ruling without explanation. The Associated Press, San Francisco Chronicle, and Marin Independent Journal wanted the high court to hear their petitions because lower appeals courts have set differing standards. The justices released their decision without comment.... [bplog]
20:19
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fork: the underground software vulnerability marketplace and its hazards. A message by Kragen Sitaker sent to the fork list, also seen on cypherpunks and various other places, warns of the dangers of a recent proposal describing an anonymous marketplace for information about software security flaws. Security researchers could sell information about vulnerabilities, provided they tell no one else. Sitaker suggests that organized criminals will be the primary buyers for such information, and concludes that such a system must not be allowed to happen.... [bplog]
20:19
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Teacher or terrorist?. A Florida university is stepping up efforts to sack faculty member Sami Al-Arian, accusing him of terrorist ties. Critics say the charges are specious -- and a threat to academic freedom. [Salon.com]
20:19
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reuters: Music Trade Group Sues Verizon in Copyright Case. The RIAA has dropped one lawsuit, and filed another. Their attempt to force US ISPs to block access to a Chinese-based web site has been halted after the site was apparently taken down. But they've filed filed a new lawsuit against Verizon in an attempt to force the service provider to hand over information about one of its customers, who they accuse of supplying unauthorized music files. The Recording Industry Association of America filed suit this week against Verizon... [bplog]
20:19
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washingtonpost: Shock Jocks Muzzled in Sex Incident. A New York radio station may have its license revoked by the FCC for broadcasting a live description of a couple having sex in a church. Opie and Anthony, co-hosts of WNEW-FM's popular afternoon drive-time program, remained off the air for a second day Tuesday while a 350,000-member Catholic group pushed for their station to get its license revoked. The pair allegedly broadcast a live, eyewitness account of a couple having sex in the landmark Manhattan church. [...] FCC... [bplog]
20:18
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The "shortest C program that crashes" challenge.. The challenge was issued: make it short as possible, make it compile, but make it crash. The results, plus a pointer to how to make incredibly tiny ELF executables.Not long ago, the Linux from Scratch C mailing list issued this challenge: write the shortest C program that compiles under gcc, but crashes. [The Happiest Geek On Earth]
20:07
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Dave's advice to Hillary. Dave Winer put it very well in this bit of advice to RIAA President Hillary Rosen:Our best advice for HIllary Rosen. Offer the same service that Morpheus and Kazaa operate, with high quality scans, and a $50 monthly fee. Run an ad campaign aimed at parents, saying that this is the responsible and honest thing for their families to do. [The Happiest Geek On Earth]
20:02
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Zawinski on regular expressions. Mark "Dive Into Mark" Pilgrim pointed out this clever little quote from the eminently quotable Jamie Zawinski (it appeared in this posting to alt.religion.emacs):Some people, when confronted with a problem, think "I know, I'll use regular expressions. [The Happiest Geek On Earth]
20:02
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Trojans: No More. I am sick of trojan horses. Recently there seems to be a wave of trojans getting into open source projects and while they are often discovered and resolved quickly, there is still a significant time of compromise. [Advogato]
19:46
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Russian Coding Firm Back for More. The company that employed the Russian programmer jailed last year for breaking an American law has a new product out ... and it deals with the product that got it in trouble in the first place. By Michelle Delio. [Wired News]
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This morning the Ninth Circuit finally issued its
long-awaited opinion in Konop v. Hawaiian
Airlines, which reconsidered its January 2001
panel decision holding that the Wiretap Act
applied to stored electronic communications.
The Ninth Circuit has now adopted the Fifth
Circuit's approach in Steve Jackson Games,
ending the circuit split on this issue. The vote was
2-1, with Judge Reinhardt partially dissenting.
The opinion is available from the 9th Circuit's
website, www.ca9.uscourts.gov. (Full
disclosure: When I was still at DOJ, I co-authored
a DOJ amicus brief in favor of the petition for
rehearing in this case.)
This case involves an employer who accessed
his employee's password-protected website
without the employee's permission. The
employee, Konop, brought a suit claiming that the
employer's conduct violated the Wiretap Act, the
Stored Communications Act, and the Railway
Labor Act. The Ninth Circuit agreed with the
employee that the conduct violated all three
statutes, and in so doing created a notable circuit
split with the 5th Circuit over the scope of the
Wiretap Act as applied to the Internet.
A motion for rehearing followed, along with a
flurry of amicus briefs from law enforcement and
privacy groups. In August 2001, the Ninth Circuit
withdrew its opinion, and now almost exactly a
year later (at just about the time the old law clerks
finished up) the Court has finally rendered its
decision.
Most notably, the Ninth Circuit rejected its prior
panel holding that the Wiretap Act's prohibition on
"intercepting electronic communcations" applies
to communications in storage. The Court has
now agreed with all of the prior courts that
"intercept" refers to contemporaneous
transmission, as opposed to files in temporary or
more permanent storage. Slip Op. at 12467. In
short, the Wiretap Act applies to communications
moving in transmission, and the Stored
Communications act applies to communications
stored and at rest.
The Court offered three arguments for its
position. First, the Court made the odd argument
that "intercept" does not apply to stored
communications because the USA Patriot Act
amended Title III in October 2001 to eliminate the
language that courts had relied on to find that
"intercept" applied to stored wire
communications. While at best this shows that
Congress did not want Title III to apply to stored
communications following 9/11, it's hard to see
how it's relevant to this case.
Next, the Court reasoned that the plain meaning
of "intercept" referred to stopping or seizing
something "in progress or course before arrival"
(quoting Webster's Ninth New Collegiate
Dictionart at 630), which strikes me as fairly weak
as well in light of the problem courts have had
construing this word.
Third, the court finally turned to the much more
obvious and stronger argument, namely that
Congress has enacted a separate legal regime to
govern stored electronic communications, in 18
U.S.C. 2701-11, and applying the Wiretap Act to
stored communications entirely nullified the
separate statute.
The court added an interesting footnote (fn 6) in
which it replied to amici and law review articles
arguing that the Wiretap Act should be construed
to apply to stored files. The Court noted that
while limiting Title III to communications in transit
limited its scope significantly, Congress had
clearly chosen to so limit the statute. Congress
opted to treat electronic communications in
temporary "electronic storage" in 18 U.S.C.
2703(a). While a broad construction of the
Wiretap Act was "not without appeal, the
language and structure of the ECPA demonstrate
that Congress considered and rejected this
argument." Quite right.
Judge Reinhardt dissented, but to be honest I'm
having trouble figuring out exactly what his
argument is. He apparently believes that there is
a way of reconciling the broad reading of the
Wiretap Act with the text of the Stored
Communications Act. Trying to understand his
argument is left as an exercise for the reader.
In my opinion, what's missing from the majority
opinion is a broader conceptual picture of why it
arguably makes sense for Congress to have
made the Wiretap Act relatively narrow. When
Congress enacted the Wiretap Act in 1968, it
created a new "super warrant" standard that was
a specific response to the problem of intercepting
communications in transit. Because wiretapping
phone calls did not merely search and seize
stored materials, but rather acted as (as Justice
Douglas put it in his Berger concurrence) a
"dragnet" that collected everything that passed
through the wire, a higher standard than mere
probable cause made sense, and in fact was
essentially mandated by the Court in Berger v.
New York (1967). Applying the Wiretap Act's
super warrant requirement to stored
communications misses this history-- it would
apply the special rule from the special case to the
ordinary case. The Ninth Circuit's opinion now
makes sure that the ordinary case gets the
ordinary Fourth Amendment rule: thanks to
2703(a), communications in electronic storage
are protected by a normal warrant requirement,
rather than the "super warrant" requirement of the
Wiretap Act. While of course one could prefer a
different rule as a matter of policy, the narrow
view of the "special case" Wiretap Act isn't
entirely nonsensical.
FInally, in a less important section of the opinion,
the Court also addressed Konop's claim under 18
U.S.C. 2701, to the effect that the employer had
accessed Konop's files without authorization, and
in particular the employer's argument that the
access was justified by the consent of a "user" to
the website. The Court held that other
employees who were told that they could sign up
for accounts on the site but had not actually done
so were not "users" because they had never
actually used the site. Interesting, although not
something that is likely to come up very often.
(I'm personally not so sure that files stored on the
web are in "electronic storage" anyway -- in fact,
I'm not sure how they can be given the statutory
definition -- but the court seemed satisfied that
the parties did not contest that point.)
[by Orin S. Kerr's Computer Crime Case Updates a href="http://hermes.circ.gwu.edu/archives/cybercrime.html">Mailinglist]
15:30
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G!
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More thoughts on Lessig. More thoughts on Lessig's proposal for software copyright reform.
First I don't have a good pointer to a Web page explaining his proposal, so I'm having to do this from memory. I'm not going to buy his book because I don't want to give him any money because I find what he wants so unsupportable. If you've read his book, and if I've got his proposal wrong, please send me a correction. Thanks.
Here's the deal. Lessig would limit copyright to ten years, and force developers to put source code in escrow. After the copyright expires the source code goes into the public domain.
Now of course we don't have to do that now. If the customers placed a sufficiently high value on having access to source code, or if they felt our copyrights lasted too long, of course we would have to do what they want us to, or retire from the market. So the proponents of this plan are trying to legislate what they haven't been able to gain in the market. It's a weak position for that reason.
Second, it comes at a pretty bad time in the software business, which has been reeling from the idea that what we produce should all be free. Right now, in mid-2002, we're getting back on track, there's a general consensus developing that if we want to have a technology industry, users are going to have to pay. Given enough time that will lead to profitable products, and investment. But right now we're weak. There's no investment in software, hasn't really been any investment in a decade (the investors were buying marketing people, ads on TV, lots of stuff that produced no new software). Why attack such a weak industry, and one that is probably very vital to the health of our economy?
After giving it a bunch of thought, I think Lessig is going after the BigCo's, probably Microsoft. But he would also sacrifice the independent companies. If we have to publish our source code the users won't pay for it. Ten years isn't enough time to create a new market. So you wouldn't get any commercial innovation in this system. The BigCo's don't innovate.
Further, I don't buy the idea that Lessig's plan is granting me anything that I'm not entitled to, at no charge, by the US Constitution and the First Amendment. But of course I'm as much of a legal neophyte as Lessig is a software neophyte.
One final thought, to those who think there are two camps here, the good guys (Lessig, open source advocates, small creative developers) and the bad guys (Eisner, Redstone, Spielberg, Feinstein, Berman, Coble, Rosen, Valenti) -- think again. I have a lot of interests in common with the people you think are bad. I believe in financial compensation for creative people. Where I diverge from the entertainment industry is that they don't pay the artists. That's their basic weakness. (Also as a user of their product, I don't like that they're so anti-user, so unwilling to give me what I want, or even listen to their users.)
I am a capitalist and proud of it. And I also believe in the freedoms guaranteed by the Constitution. Perhaps Lessig and his friends are well intentioned, I don't know what the thought process is, and I don't care. They've got a gun to the head of my art and business. We can't talk as long as they have that position. Withdraw, and then let's get to know each other and see what we have in common. [Scripting News]
12:36
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Maximillian Dornseif, 2002.
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