Cites & Insights: Crawford at Large
ISSN 1534-0937
Libraries · Policy · Technology · Media


Selection from Cites & Insights 4, Number 12: October 2004


Copyright Currents

Most copyright-related chatter the past three months concerns the proposed INDUCE Act, later renamed IICA (Intentional Inducements of Copyright Infringements Act of 2004), an Orrin Hatch special that’s also been called “the second coming of CBDTPA” or “Hollings revisited.” I cover that (as briefly as possible!) in a separate Perspective. Meanwhile, as always, a lot more has been happening even as most legislation on both sides of the copyright wars remains bogged down. There’s been action on two fronts that bypass the legislature in the interests of tightening copyright—that is, FCC rulemakings and World Intellectual Property Organization treaty proposals. I won’t be commenting on the WIPO activity. It may be important, but I couldn’t make sense of the third-hand informal commentary that I found. The courts have also been active, with a bit of good news for those who regard innovation as threatened by extreme copyright.

As usual, topics appear in no particular order, but items typically appear chronologically within a topical cluster.

Database Protection

The mid-June copyright special (4:8) included a section on HR 3261 (the Database and Collections of Information Misappropriations Act) and what was wrong with it from a balanced-copyright perspective. The section ended with an ALAWON report on a hearing on 3261 that also noted the introduction of a new bill, HR 3872, the Consumer Access to Information Act of 2004. HR 3872 is related to the earlier HR 1858 (so many bills…); notably, its sponsors include Boucher and Eshoo (VA and CA respectively), two Congressfolk with some apparent respect for balanced copyright.

As with most proposed legislation, you can find the bill readily enough, and this one’s only four double-spaced pages. I’ll quote the key definitional section in its entirety and summarize the limitations and remedies.

Section 1. Short Title. This Act may be cited as the “Consumer Access to Information Act of 2004”.

Sec. 2. Misappropriation of a Database.

(a) Misappropriation Prohibited.—The misappropriation of a database is an unfair method of competition and an unfair or deceptive act or practice in commerce under section 5(a)(l) of the Federal Trade Commission Act (15 U.S.C. 45(a)(l)).

(b) Definition.—For purposes of subsection (a), the term “misappropriation of a database” means that—

(1) a person (referred to in this section as the “first person”) generates or collects the information in the database at some cost or expense;

(2) the value of the information is highly time-sensitive;

(3) another person's (referred to in this section as the “other person”) use of the information constitutes free-riding on the first person's costly efforts to generate or collect it;

(4) the other person's use of the information is in direct competition with a product or service offered by the first person; and

(5) the ability of other parties to free-ride on the efforts of the first person would so reduce the incentive to produce the product or sendee that its existence or quality would be substantially threatened.

Service providers would be held harmless. It would be enforced by the FTC: It does not allow for private suits. It would not affect SEC operations or security transactions and quotations. It’s not a copyright bill as such: It would not provide copyright protection to facts within a database, but would provide a different form of protection.

It seems to be a better bill than HR 3261 but still appears to solve a problem that may not exist. Maybe ALAWON’s take on it (as I read the article) is the right one: If it helps to keep any bill in this area from passing, it’s a good thing.

DMCRA

According to a June 17, 2004 Wired News story (by Michael Grebb), Rick Boucher had 19 cosponsors for HR107 (DMCRA) as of that date, including Joe Barton, chair of the House Commerce Committee. “It’s unlikely the bill will become law this year, but its proponents see the backing as a good sign.” The article goes on to say “DMCA has…evoked buyer’s remorse in many lawmakers,” and one can only hope that’s true.

Grebb quotes EFF’s Fred Von Lohmann: “The DMCA has supplanted the balance of the Copyright Act over the last century”—and MPAA’s David Green: “The DMCA retains fair use. It doesn’t change fair use in any way.”

Rather, he said, the DMCA simply bars circumvention of copy-protection schemes. He also said fair use has never allowed people to make full backup copies of movies anyway—a notion that many HR107 supporters dispute.

Green’s comment is pure sophistry, since giving copy protection the force of law has the effect of negating fair use even though it may not change the law’s wording—and copy protection as practiced on DVDs, for example, not only prevents full copies but prevents the excerpting fair use supports. The Wired News story was one of the last mentions of 321 Studios, whose chief executive said the company could only last a few weeks given legal bills of $850,000 per month. It went out of business shortly thereafter.

Later in June, a bunch of technology companies and ISPs formed the Personal Technology Freedom Coalition to support DMCRA.

Finally—for now—two Judiciary Committee leaders issued an outraged statement that made it clear where their sympathies lie:

We strongly oppose the substance of H.R. 107. This legislation would eviscerate a key provision of [DMCA], which is successfully protecting copyrighted works and providing consumers access to more digital content than ever before. In fact, a DVD player is now as common a household item as the VCR was 15 years ago precisely because of [DMCA]. H.R. 107 would undo a law that is working and destroy the careful balance in copyright law between consumers’ rights and intellectual property rights.

The statement went on to object to a “power grab” by the Commerce Committee.

Do consumers have “access to more digital content” now than they did prior to 1996? Well, sure; how could it be otherwise? Did DVD players succeed precisely because of DMCA? Only if you believe studios would have refused to issue DVDs in the absence of the draconian legislation and that DMCA somehow caused technology companies to compete for DVD player sales so heavily that prices plummeted. Does DMCA represent a “careful balance”? To James Sensenbrenner, John Conyers, and Lamar Smith, apparently so. To the rest of the world, maybe not: Big Media still wants technology locked down even further, and a lot of the rest of us have seen just how unbalanced DMCA is in practice. It sounds as though the only prospect for getting DMCRA onto the House floor is a “power grab” by some other committee.

MGM v. Grokster

That’s shorthand for three consolidated cases involving rightsholders (MPAA members, RIAA members, songwriters and music publishers) as plaintiffs and distributors of peer-to-peer network software (Grokster, Streamcast [Gnutella], and sometimes Sharman Networks and LEF Interactive) as defendants. It’s usually called “the Grokster case.” An appeal from the U.S. District Court for the Central District of California was heard on February 3, 2004 by a three-judge panel of the Ninth Circuit Court of Appeals; Judge Sidney R. Thomas issued the resulting opinion on August 19, 2004. The document runs 26 PDF pages, but the first nine list the plaintiffs, defendants, and lawyers.

This appeal presents the question of whether distributors of peer-to-peer file-sharing computer networking software may be held contributorily or vicariously liable for copyright infringements by users. Under the circumstances presented by this case, we conclude that the defendants are not liable for contributory and vicarious copyright infringement and affirm the district court’s partial grant of summary judgment.

That’s the finding—hardly worth more than a footnote, since it’s likely to be appealed to the Supreme Court. Think of it as an affirmation of the Betamax doctrine. But there’s much more here; the opinion is a well-written essay making important points. Here’s the first paragraph of the background:

From the advent of the player piano, every new means of reproducing sound has struck a dissonant chord with musical copyright owners, often resulting in federal litigation. This appeal is the latest reprise of that recurring conflict, and one of a continuing series of lawsuits between the recording industry and distributors of file-sharing computer software.

The background commentary goes on to explain the differences between Grokster and its ilk (decentralized P2P) and Napster (centralized P2P), offering a footnote that seems needlessly humble (“This is an extremely simplistic overview of peer-to-peer file-sharing networks”—it may be simplified, but it’s clear and covers the needed aspects). In commenting on the lawsuit’s assertion on uses of P2P networks, Thomas offers careful wording: “The Copyright Owners allege that over 90% of the files exchanged through use of the ‘peer-to-peer’ file-sharing software offered by the Software Distributors involves copyrighted material, 70% of which is owned by the Copyright Owners.” [Emphasis added.] Note that “involves copyrighted material” absolutely does not mean that sharing the file means infringing copyright, but that’s probably irrelevant.

The analysis begins thusly—and it’s useful to note that the defendants did not argue that P2P users had never engaged in direct infringement:

The question of direct copyright infringement is not at issue in this case. Rather, the Copyright Owners contend that the Software Distributors are liable for the copyright infringement of the software users. The Copyright Owners rely on the two recognized theories of secondary copyright liability: contributory copyright infringement and vicarious copyright infringement… We agree with the district court’s well reasoned analysis that the Software Distributors’ current activities do not give rise to liability under either theory.

Contributory copyright infringement requires direct infringement by a primary infringer, knowledge of the infringement by the contributory party, and material contribution to the infringement. Immediately after stating those three elements, the opinion brings in the Betamax case.

In Sony-Betamax, the Supreme Court held that the sale of video tape recorders could not give rise to contributory infringement liability even though the defendant knew the machines were being used to commit infringement. In analyzing the contours of contributory copyright infringement, the Supreme Court drew on the “staple article of commerce” doctrine from patent law… Under that doctrine, it would be sufficient to defeat a claim of contributory copyright infringement if the defendant showed that the product was “capable of substantial” or “commercially significant noninfringing uses.”

Once it was shown that Betamax recorders were capable of significant noninfringing uses, the fact that Sony knew (or should have known) the recorders could be used for copyright infringement could not lead to a claim of contributory copyright infringement. That isn’t saying most uses are noninfringing, only that there’s substantial noninfringing use.

In a previous case (Napster I), this court held that, given substantial noninfringing use, a copyright owner had to show that the defendant had reasonable knowledge of specific infringing usage. Given Napster’s centralized index architecture, it was possible to make such a showing by providing Napster with specific file names representing copyright files not legally available for sharing.

In this case, “the district court found it undisputed that the software distributed by each defendant was capable of substantial noninfringing use… There is no genuine issue of material fact as to noninfringing use.” The opinion mentions not only distribution of public domain works and cases where there’s clear permission to distribute, but also the specific and charming case of Wilco,

whose record company had declined to release one of its albums on the basis that it had no commercial potential. Wilco repurchased the work from the record company and made the album available for free downloading, both from its own website and through the software user networks. The result sparked widespread interest and, as a result, Wilco received another recording contract.

That same paragraph mentions Project Gutenberg and public domain films in the Prelinger Archive.

Plaintiffs did not contradict these declarations—but argued, “evidence establishes that the vast majority of the software use is for copyright infringement.” At this point, you may say “So?” So, in effect, does the opinion: “This argument misapprehends the Sony standard as construed in Napster I, which emphasized that in order for limitations imposed by Sony to apply, a product need only be capable of substantial noninfringing uses.” [Emphases in original.] (A footnote points out that, even if noninfringing use is only at the 10% level claimed by the plaintiffs, that’s still “a minimum of hundreds of thousands of legitimate file exchanges.”)

Does this case meet the Napster I standard? No. Neither StreamCast nor Grokster maintains any central index or maintains control over index files. The distributors do not and cannot know what files are being shared.

Material contribution? Not really. Napster was found to materially contribute to infringement because of its integration and failure to cancel infringing messages after knowing that they represented infringing files. Grokster and StreamCast don’t provide the “site and facilities” for infringement or otherwise materially contribute to infringement. Plaintiffs provided no evidence of any other sort of material contribution.

So much for contributory infringement: By eliminating the centralized indexes and building architectures with “numerous other uses” that don’t infringe copyright, the defendants are off the hook. What about vicarious contribution? That requires, in addition to the usual direct infringement, “a direct financial benefit to the defendant” and “the right and ability to supervise the infringers.”

Napster claimed the ability to supervise, since it expressly reserved the right to block access. StreamCast doesn’t even maintain license agreements—and although Grokster nominally reserves a termination right, it lacks registration and log-in, so “even Grokster has no ability to actually terminate access to filesharing functions, absent a mandatory software upgrade to all users that the particular user refuses, or IP address-blocking attempts.”

Copyright owners apparently contended that Grokster and StreamCast had the right and ability because “the software itself could be altered to prevent users from sharing copyrighted files.” While the assertion is questionable (the only alteration that would uniformly work would be one that rejects all file sharing, which would make the products useless), it’s also beside the point. Since Grokster and StreamCast hadn’t already been found liable for vicarious copyright infringement, they aren’t required to establish new policing powers.

Then there’s the “blind eye” theory: “Turning a blind eye to detectable acts of infringement for the sake of profit gives rise to liability.” The opinion notes, “there is no separate ‘blind eye’ theory or element of vicarious liability that exists independently of the traditional elements of liability.” (Since Grokster and StreamCast don’t monitor traffic, “detectable acts of infringement” is an oxymoron: The software distributors cannot detect such acts.)

I’ll end excerpts with part of the second and third paragraphs from the final section, before notes that changes in copyright should be left to Congress:

The Copyright Owners urge a re-examination of the law in the light of what they believe to be proper public policy, expanding exponentially the reach of the doctrine of contributory and vicarious copyright infringement. Not only would such a renovation conflict with binding precedent, it would be unwise. Doubtless, taking that step would satisfy the Copyright Owners’ immediate economic aims. However, it would also alter general copyright law in profound ways with unknown ultimate consequences outside the present context.

Further, as we have observed, we live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation… The introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through well-established distribution mechanisms. Yet, history has shown that time and market forces often provide equilibrium in balancing interest, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player. Thus, it is prudent for courts to exercise caution before restructuring liability theories for the purpose of addressing specific market abuses, despite their apparent present magnitude.

A fine opinion, well-stated and declining to throttle technological innovation on behalf of extreme copyright. A number of commentaries have already appeared. Fred Von Lohmann of EFF summarized key points. Tim Wu, guest blogger on the Lessig Blog on August 19, offered seven reasons he believes the Supreme Court will agree to hear the case. Two have to do with disagreements between different circuit courts; two note that the Court has tended to hear similar cases (Sony Betamax, the piano roll case, etc.) and that it’s vaguely aware of “some far-out stuff” in the field of computer law. Then there are the last three:

5. Law clerks use P2P technology to plan basketball games

6. JJs. Stevens and Breyer deeply dig this stuff

7. The Court loves to be the center of attention, and this would make it so.

Wu also analyzed the opinion (you’ll find the two-page analysis and 15 comments—which I didn’t read—in Lessig’s archives). He notes that the opinion turns on facts—that is, the clear capability of P2P for non-infringing use and the lack of “site and facilities” in Grokster et al. He points out—which I’d missed—that Thomas “writes in Silicon Valley language rather than Hollywood.” The words “piracy” and “stealing” do not appear in the opinion, and he particularly notes the second and third sentence in the last paragraph quoted above. He does believe there are weaknesses in the opinion, specifically its failure to address the “blind eye” issue.

For the moment, the sale and design of P2P technology is legal—in California, at least. Several analyses point to the Induce/IICA act, whose sponsors are likely to be energized by this decision. (“It’s up to Congress? OK, we’ll outlaw that devil P2P.”) More to come, probably. Meanwhile, a decision that was a pleasure to read (as a document, that is: I’ve never used P2P software and don’t plan to start).

DRM

Cory Doctorow of EFF spoke to Microsoft’s Research Group on June 17; the text of that speech, explicitly placed in the public domain (by a Creative Commons license), is at craphound.com/msftdrm.txt

He was there to convince the Microsoft folks:

“1. That DRM systems don’t work

“2. That DRM systems are bad for society

“3. That DRM systems are bad for business

“4. That DRM systems are bad for artists

“5. That DRM is a bad business-move for MSFT.”

It’s an informal speech with a fair amount of history and argumentation. You may find it interesting reading. I believe he makes a good case in most areas—but then, I’m one of those who call the field “digital restrictions management” rather than “digital rights management.”

In a couple of cases, I would take issue with specifics. It’s not clear that “MP3 is outcompeting the CD”—CD sales are back on the rise. He dismisses screen resolution as an issue for ebooks (calling it “bollocks”) and similarly dismisses the look and feel of books as an issue. He argues that “every one of you…read more and more words off of more and more screens eveyr day…you’ve also been reading fewer words off of fewer pages as time went by.” He goes on, “People read words off of screens for every hour that they can find.” He seems to buy into media replacement—and his claim of the good thing about ebooks is what makes them so difficult from a marketplace view: “Ebooks are good at being everywhere in the world at the same time for free in a form that is so malleable that you can just pastebomb it into your IM session or turn it into a page-a-day mailing list.” Which means what incentives for authors and publishers? (Doctorow is also given to “in” neologisms like “pastebomb” and “g0nez0red.”)

“New technology always gives us more art with a wider reach: that’s what tech is for.” Nice, simple, and wrong: “New technology” doesn’t always do anything! In fact, DRM is a set of new technologies—just not very enticing new technologies.

Doctorow assails the DRM attached to iTunes and Microsoft’s WMA, and wants Microsoft to build a player that “plays anything I throw at it.” Fine. I agree. Then he says:

Yes, this would violate copyright law as it stands, but Microsoft has been making tools of piracy that change copyright law for decades now. Outlook, Exchange and MSN are tools that abet widescale digital infringement.

A universal player would only “violate copyright law as it stands” if it subverted DRM: that would violate DMCA. Otherwise, the player would be as innocent as a VCR: Since it would be capable of substantial non-infringing purposes, the fact that you could play illegally copied files on it would certainly not be a violation. The “tools of piracy” claim is also nonsense, as far as I’m concerned. Essentially, Doctorow is pretending to be a strong-copyright fanatic in order to build a straw man.

Too bad, because despite this and a number of other annoying comments and questionable assertions, it’s a good talk, raising good points. Recommended with caveats.

A June 18 Ed Felten posting at Freedom to Tinker notes the curiosity that a pseudo-CD “protected” by SunnComm’s lame “anti-copying” technology was topping the charts at that point. He notes, “the technology presents absolutely no barrier to copying on some PCs; on the remaining PCs, it can be defeated by holding down the Shift key when inserting the CD.” Sunncomm says the sales demonstrate “consumer acceptance of their technology.” Felten notes consumer reviews at Amazon: consumers found the “protection” problematic but very easy to get around. Felten closes, “Needless to say, the SunnComm technology has not kept the songs on this album off of the filesharing systems.”

July 6, Felten posted a comment about an elaborate DRM scheme that the MPAA is considering so that they can keep distributing “screener” copies of new movies to Academy Award voters. The studios would give each voter a special DVD player. Each copy of a video would be encrypted so it would only play on a particular person’s DVD—and the video would also be watermarked to identify each copy. He notes that this must mean stronger encryption than CSS, and that the watermark might not need to be very sophisticated: “Last year, a simple, weak watermark was sufficient to catch a guy who distributed copies of Academy screener videos on the net.” He also notes that the scheme wouldn’t work at all for consumer DVDs—and that a voter could still capture, redigitize, and distribute the analog output from a player (which might leave the voter culpable through watermark identification).

Ernest Miller commented on this same proposal at his “The importance of…” weblog. Thanks to Corante’s sophisticated (if unintentional) anti-print technology, I only have the first portion of his commentary. (How do weblog programs manage to make printing so difficult—or, as in this case, apparently work just fine, but truncate the printout? And why?) Anyway, Miller’s sardonic posting applauds these efforts: “It may not keep their films from getting onto the internet, but it demonstrates that they aren’t hypocrites.” Some of his other reasons to applaud the move:

It is a tacit acknowledgment that movie industry insiders are a significant part of the online movie infringement problem.

It treats Academy members the same as consumers, like criminals.

Academy viewers will have to deal with the prohibitions on sharing that Hollywood wants to impose on consumers generally. Even Valenti bragged that he (and many others) would let friends and family borrow screeners…

All of this is perhaps peripheral to library concerns—unless and until some copyright-crazed company proposes making DVDs that, once played on a given player, can never be played on any other player. That would be like making downloadable ebooks that were tied to a single reading device…oh wait, that was Gemstar’s bright idea, wasn’t it?

Broadcast Flag(s)

So far, there’s no sign that either a court or Congress is ready to step in and block the FCC’s outrageous power grab, the Broadcast Flag: A rulemaking that appears to give the FCC authority over the design of any technological device that can receive or copy high-definition digital television broadcasts. Meanwhile, Big Media is never satisfied. Now they want a broadcast flag for digital radio—and, really, for all transmitted media.

Gigi B. Sohn discusses this at Public Knowledge (www.publicknowledge.org) under the heading “Gigi B. Sohn says our right to record wanes as the music industry jumps on the content protection bandwagon.” Before discussing the new dangers she summarizes how the Broadcast Flag was adopted:

Hollywood argued that the “broadcast flag” scheme is necessary to protect their copyright material, and that without those protections, the media companies wouldn’t put any good content over the air. It was a shakedown of the FCC in order to get mandatory copy protection, and the FCC gave in.

“Shakedown.” What a forthright word. It wasn’t a quid pro quo: The FCC received no promises that the broadcast flag would result in “good content” appearing on the airwaves. But that’s another issue. “Hollywood’s success in obtaining copy-protection regulations for digital television encouraged the record companies to seek something even more extreme for digital radio.”

According to Sohn, it first appeared that the FCC agreed with participants at a January meeting—there was no need for content controls for the new in-band digital radio. Three months later, however, the commission issued a Notice of Inquiry to determine whether content controls on digital radio service are needed. That doesn’t mean a rulemaking is imminent, but no inquiry should be needed. “The arguments presented by the recording industry at the January meeting of the FCC had all been thoroughly discredited… There are neither pressing technological issues nor spectrum-related issues that require the commission’s immediate action to protect digital radio content.” She notes that the issue hasn’t even come up in the UK, where digital radio is already in operation. So why is there a proposal?

Quite simply, the answer is that the music industry sees in digital radio an opportunity to do just what Hollywood has succeed in doing with digital television: using the nervousness about a digital transition as an opportunity to impose controls over content use that have never before existed. And the record companies are seeking even more control over their offerings than the movie and television companies have sought over television, with studios willing to allow a small degree of home recording. But if the music industry has its way, you won’t even be able to record content at home without paying for the privilege.

She concludes that Big Media really does want to get paid every time you watch or listen to anything. The paper closes, “The digital revolution was supposed to be about liberating consumers and citizens. We can’t let it become an excuse for constraining consumers to spend every last cent.”

I’m no great fan of “digital revolution” promises, and never saw any reason to believe digital media would be liberating—but, at the very least, digital media should not remove the fair use rights and other reasonable allowances that consumers have with analog media.

While I haven’t seen RIAA’s comments to the FCC (or any of the other June comments), I have seen Disney’s August 2 comments. They’re chilling. Disney supports a “content protection mechanism” and, naturally, raises the threat that allowing “abuse” of digital radio (that is, home copying) could “threaten the long term viability of free, over-the-air broadcasting or at least force a reduction in the quality of programming provided by broadcasters.” A threat to reduce the quality of broadcast radio: That’s pretty damning. Just how low could they go? Here’s the truly chilling part:

In addition, to the extent the Commission considers such a content protection mechanism, it also should consider whether to extend that mechanism to all music distribution platforms, including satellite digital audio radio service, the Internet and broadcast radio service.

Lock them all down: That’s Disney’s answer and I’m fairly sure RIAA would agree.

EFF and the Free Expression Policy Project (FEPP) submitted a 14-page reply comment on August 2 as well. That comment deconstructs the apparent RIAA justifications piece by piece and is, I believe, impressive and convincing. Of course, I’m one of those who thought we had the right to record broadcast radio (and TV) and that, ever since cheap cassette recorders became available, we’ve been able to do so without much difficulty. Somehow, radio and the music industry have survived all that taping. But, of course, with digital everything’s different.

Summarizing the EFF/FEPP response, “In attempting to justify its request, the RIAA misstates the relevant copyright law principles governing noncommercial home recording, misdescribes the capabilities of iBiquity’s IBOC radio technology, and resorts to unsupported speculation in predicting that the ‘sky surely will be falling soon.’”

Specifics? For one, current copyright policy does not allow for mandates solely intended to preserve an existing business model: That’s been clear in Sony and any number of other decisions. “The primary goal of copyright has always been to benefit the public.” (Would that this were so in practice, but it’s a nice claim to make.) Congress has avoided enshrining any particular entertainment industry model in copyright law, and policy has never favored regulatory intrusion into device design questions.

Beyond that, Congress specifically approved noncommercial home recording, particularly in the AHRA (the home recording act, which provides for royalties on digital recording devices in return for legitimizing such devices and expressly forbidding copyright infringement suits for home recording using AHRA-compliant devices). The RIAA apparently now claims that the AHRA doesn’t really apply to digital recorders for various bizarre reasons that aren’t in the legislation (e.g., newer recorders don’t use tape). This is a long, detailed discussion that seems to affirm that Congress explicitly allows digital recording of broadcast media. Beyond that, there’s nothing that suggests that Congress would delegate its powers to the FCC in this area, particularly since Congress has already acted.

The RIAA tries to claim that digital broadcasts need special protection because they’re so high quality. (They’re digital: They must be perfect.) This is a crock, pure and simple, even though EFF may go a bit too far in making its case. To wit, when EFF has done field recordings of digital and analog broadcast signals recorded simultaneously, from the same broadcaster, the two can’t reliably be distinguished on the basis of sound quality. I can believe that, since the maximum data rate for the new digital radio service is 96kbps, at best FM quality and nowhere near CD quality. Then the RIAA goes way too far, asserting that the new service will provide better quality recordings than current P2P downloads. Apparently, quite a few P2P files are MP3 encoded at 192k, which is near-CD quality. EFF found no significant difference between 192k MP3 versions of the songs in question and the digital or analog radio broadcasts. That surprises me: 192k MP3 should be audibly better than any 96k encoding, unless the music in question simply didn’t require much fidelity. (“Significant” is one of those lovely words—differences that I consider significant may not strike you as noticeable, and vice-versa.)

In another claim, RIAA is once again hoist by its own petard. They claim digital radio is different because it comes with metadata on artists and titles, making it easy to disaggregate a recorded broadcast into a set of song files. But RIAA has been touting the ability of fingerprinting technologies such as Audible Magic to accurately identify songs through their acoustic properties. If they’re right, then you can provide the metadata in any case. Oops. (The commentary also points out that some FM broadcasts also include metadata, as do most Internet broadcasts and cable music services.) Finally, EFF and FEPP argue that the FCC lacks jurisdiction to impose the new content protection regulations.

I haven’t heard much more. EFF’s Fred von Lohmann posted an item on Deep Links on August 6, “Nose. Camel. Tent.” That item cites RIAA’s urge, notes that nobody even has an HD radio yet, so who cares, and cites the same Disney sentence I quoted earlier. “Got that? Disney wants the FCC to regulate all devices capable of recording from any audio broadcasting medium or from the Internet. FM radio, XM, Sirius, Streamripper, Total Recorder, you’re all in the crosshairs. It’s the Hollings bill all over again.

So it is—which is why I’m providing some informal coverage here.

There are signs that Canada plans to “import” the broadcast flag, again with a July 2005 date. If true, that’s sad: One always hopes for more good sense from our northern neighbors.

Miscellaneous Short Items

I was shocked and disappointed some time back when a freelance contributor to National Geographic Magazine won a suit claiming that inclusion of that contributor’s work in the CD-ROM collection of the magazine wasn’t legitimate. This wasn’t Tasini; the CD-ROM collection represented scanned pages and was no more a new product than a microfilmed copy would be. Other freelancers went after National Geographic in Faulkner v National Geographic Society—and this time, the society won. The original decision came out before Tasini; this court concluded that Tasini established a standard for “entirely different works” that was not met by the CD-ROM collection. It may be too late for the victory to matter much, given the state of title CD-ROMs, but it’s still a good decision.

Ø    Speaking of good decisions, a Federal Circuit court has upheld a lower court decision that slightly restricts the absurd overuse of DMCA. Namely, Chamberlain (the garage door opener company) can’t use DMCA to stop Skylink from making universal remote controls that operate Chamberlain openers. The finding doesn’t limit DMCA all that much, but at least it asserts that tools whose only significant uses are noninfringing can’t violate DMCA and that courts should balance Congress’ desire to uphold extreme copyright with user rights such as fair use—and in this case, that balance was easy. Edward W. Felten offered perhaps the best of many “blogosphere” commentaries on he decision in a September 2 Freedom to Tinker post, wherein he also concludes that Congress didn’t really know what it intended when it passed DMCA:

Many lawmakers have expressed surprise at some of the implications of the DMCA. Many seemed unaware that they were burdening research or altering the outlines of the Sony rule (and clearly some alteration in Sony took place). Many seemed to think, at the time, that the DMCA posed no threat to fair use. Partly this was caused by misunderstanding of the technology, and partly it was due to the tendency to write legislation by taking a weighted average of the positions of interest groups, rather than trying to construct a logically consistent statutory structure.

Ø    Looking to digitize a book published between 1923 and 1963? Wondering whether it’s under copyright? If it was published before 1923 it should be in the public domain; if it was published after 1963, it’s almost certainly protected. But if it was published between 1923 and 1963 and copyright wasn’t renewed, it’s in the public domain. There’s now a search engine to check copyright renewal records for books: www.scils. rutgers.edu/~lesk/copyrenew.html. That site includes a brief explanation and a search box. A nice new service for using (albeit not building) the public domain.

Ø    What if you want a sanitized version of a movie and don’t believe your DVD is clean enough for your family? Some manufacturers are ready to sell you DVD players with built-in optional filters (with subscriptions for upgrades) that skip over the nasty stuff in recognized pictures or maybe bleep out bad words. The MPAA doesn’t like this idea and some Hollywood folk were ready to claim that such alteration would be copyright infringement. Enter the Family Movie Act, introduced on June 16: “To provide that making limited portions of audio or video content of motion pictures imperceptible by or for the owner or other lawful possessor of an authorized copy of that motion picture for private home viewing, and the use of technology therefor, is not an infringement of copyright or of any right under the Trademark Act of 1946.” There’s not a lot more to the act than turning that clause into modifications to the copyright and trademark law—but there is one requirement (to protect against trademark suits) that’s worth citing: “Such manufacturer shall ensure that the technology provides a clear and conspicuous notice that the performance of the motion picture is altered from the performance intended by the director or copyright holder of the motion picture.” You know the notice you see before almost every movie on an airplane and most recent movies on TV—and, before DVD, the notice about screen format that you saw on most videos? Such a notice would have to come from the player itself, letting the viewer know that the picture has been modified. My take on this, with all my concern for artistic integrity and the like? I think it’s a reasonable law. Once you’ve legally acquired a copy of a mass-produced creation, you should be able to view or listen to part or all of it as you wish, and getting someone’s help in choosing “the good parts” should be legitimate—as long as you know it’s happening.

Ø    Lawrence Lessig has an interesting way to keep his A-list blog lively when he’s busy doing other things: Guest bloggers. Judge Richard Posner was guest-blogging the week of August 23, 2004, and (among other things) posted some fascinating discussions concerning fair use. He proposes one interesting extension of fair use: “We argue that it should be considered fair use to copy an old work if the copyright owner hasn’t taken reasonable steps to provide notice of his continued rights, as by entering his name and address in a copyright registry.” It’s a variant of the Eldred Act/Public Domain Enhancement Act, and interesting to consider. You’ll find this and subsequent discussions of Fair Use in the Lessig blog archives (www.lessig.org/ blog/archives, beginning August 23 and continuing at least through August 25. He also discusses the “systematic overclaiming of copyright” going on today and suggests the idea that copyright overclaiming—e.g., the title-verso statements that “no part of this book” may be copied for any reason, which is a flat denial of fair use—be deemed a form of copyright misuse, which could result in forfeiting the copyright. Fascinating stuff.

Copyright Issues in Digital Media

This major paper (37+x pages), issued in August 2004, is from the Congressional Budget Office. It views copyright through the narrow lens of economics, where “efficient” and “equity” have different meanings than in broader society. That considerable caveat offered, it’s an interesting treatment of the issues around potential copyright legislation.

The paper doesn’t make explicit policy recommendations, “in keeping with CBO’s mandate to provide objective, impartial analysis.” Is the analysis impartial? I think it is, once you accept that only economic factors are considered.

I made quite a few marks as I read through the paper. I’m not sure that detailing those quibbles would serve anyone. In the preface, I was disturbed by the frequent use of “property rights” in conjunction with copyright issues—but the paper itself does make some of the significant distinctions between property rights and copyright. The whole discussion of “differential pricing” (charging what individual portions of the market will bear—e.g., charging more for a regular CD than for a copy-protected pseudo-CD) gives me the willies, but it’s fundamental to any market-based discussion of copyright.

Treat “inefficiency” with the respect it deserves: Economic inefficiency may be fundamental to societal equity at times. Be aware that this is a cold-blooded report, as may be appropriate. A footnote suggests that “individual privacy may one day become less a right than a commodity,” as we give up privacy to gain access to copyrighted materials, without any suggestion that this may be a horrendous choice that favors economics over basic rights.

You have to credit the authors with noting copyright is granted “for only a limited time” and following that with the current “limited” terms, keeping an apparent straight face in the process. Calling lifetime plus 70 years “limited” takes chutzpah; doing so without noting the ease with which Congress can make that lifetime plus 90, or 110, or 130 years (and, similarly, extending works for hire from 95 to 115, 135, or 155 years) is truly audacious.

I’m not putting the report down. There’s a lot of clear discussion here—including a very clear statement that AHRA “explicitly granted consumers an exemption from copyright infringement for their use of either an approved digital audio recording device or analog equipment to make personal copies of musical recordings,” a fact worth repeating in the face of RIAA’s demands for new broadcast flags.

There are even places where the authors admit that economics can’t measure everything:

Relatively little is known about what motivates people to engage in creative activity and how those influences differ from the perhaps more pecuniary motivations of those who acquire the copyright to creative works for purposes of reproduction and distribution. In other words, economic theory has not yet specified a “creative production function.”

Yet? Oh well, at least there’s the recognition that economics does not explain creativity.

I’m not sure whether to recommend this paper. I found it informative and thoughtful, even as I was distressed by the narrowness of the perspective. (I really do miss the Congressional Technology Office, which seemed to produce much broader papers. Maybe that’s why it’s gone.) You may also find the paper worthwhile.

Cites & Insights: Crawford at Large, Volume 4, Number 12, Whole Issue 54, ISSN 1534-0937, is written and produced at least monthly by Walt Crawford, a senior analyst at RLG. Opinions herein do not reflect those of RLG. Comments should be sent to wcc@notes.rlg.org. Cites & Insights: Crawford at Large is copyright © 2004 by Walt Crawford: Some rights reserved.

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