DeepLinks Archives, September 2004
Noteworthy news from around the internet.
BSA to Hatch -- We're with the Tech & Telecom Industries on Induce
Posted by Jason SchultzThroughout the ongoing battle over Senator Hatch's controversial Induce Act, the dividing lines have been clear: the RIAA on one side, and the technology and telecommunications industries on the other, with one puzzling exception -- the Business Software Alliance. The BSA did appear at Senator Hatch's initial hearing on the Act, but other than that has been surprisingly quiet in the debate over subsequent drafts of the bill and the effort to defend the Betamax doctrine.
Last night, all of that changed. In a strongly-worded letter [PDF 65k], BSA (along with CSPP and the ITIC) told Senators Hatch and Leahy in no uncertain terms what's wrong with Induce and what any bill that expands copyright liability would need to pass muster:
We believe that to implement your goal that legitimate products and technologies not be threatened, it should be made clear that technology products that can be used for significant legitimate purposes - in the copyright vernacular, substantial non-infringing uses - are not subject to copyright infringement liability. To this end, the bill should state clearly that the Supreme Court's decision in the Sony Corp. v. Universal City Studios, Inc case is unaffected and the defenses to infringement in that decision are preserved. That decision has stood for 20 years, and technology companies and the marketplace have come to rely on it.
[W]e believe that the draft circulated this week would encourage litigation and ultimately require responsible companies to spend resources defending themselves, even when no illicit aims are present. The draft does not make clear that providing technology products and services per se is not subject to liability, including when they can be used for significant legitimate purposes. Nor does the draft state, without qualification, that mere knowledge of infringing use of a product or service, or advertising and providing support or assistance to users, are not a basis for infringement liability.
To address the goals of this legislation, we believe that a more narrowly tailored approach would be better; one that enables aggrieved parties to target entities that have illicit motives and business models. This would avoid three major problems with the current draft: first, the need for courts to make determinations of the subjective intent of a product designer or producer, instead of properly focusing on objective questions of causation and business models; second, the need for courts to examine the design, functions and capabilities of particular technologies; and third, the inability of courts to dismiss a case before parties have to engage in costly and disruptive discovery.
This makes it full house. Technology and telecommunications companies and organizations uniformly oppose the current version of Induce and favor preserving Betamax. Hatch has emphasized over and over that he wants consensus on Induce. I would say that now he has it: Don't Induce; Save Betamax.
4,280 RIAA Lawsuits and Counting.
Posted by Fred von LohmannIn this season of Induce, let's not forget that the RIAA is using existing laws to make thousands of American families miserable. Of course, just as the Induce Act won't solve the P2P dilemma, the lawsuit campaign doesn't seem to be working, either. For a recap on the RIAA lawsuit campaign, as well as EFF's suggestion for what they should be doing instead, read the editorial published today in Law.com:
Four thousand two hundred and eighty lawsuits and counting.
That's how many lawsuits have been brought by the major record labels against music fans for using peer-to-peer (P2P) file-sharing software (like Kazaa or Morpheus) to swap music over the Internet. This month marks the one-year anniversary of the recording industry's unprecedented litigation campaign against its own customers. The campaign appears to have hit its stride, with the Recording Industry Association of America announcing roughly 500 new suits each month.
Link.
A Tax on Innovators
Posted by Fred von LohmannYesterday, the Senate Judiciary Committee released yet another version (PDF) of S. 2560, otherwise known as the Induce Act. Today, after facing a withering hail of opposition (PDF) from everyone other than the RIAA, the committee staffers are apparently working on yet another draft, making it the fifth by my count.
Every draft released so far has suffered from the same fatal flaw: each would haunt legitimate American innovators while doing nothing to solve the peer-to-peer file sharing dilemma. P2P vendors will simply move offshore (many already have) and filesharers will turn to open source applications (like Bit Torrent) that already circulate freely in cyberspace.
It will be legitimate American innovators who are left under the gun. Vague new laws targeting "inducement" or "dissemination" technologies will give entertainment industry lawyers leverage over big technology companies (like Apple, TiVo, and Intel) and a crushing hammer to wield against small ones (check out Sling Media for one compelling example of a great technology that Hollywood certainly doesn't want you to have).
So let's call this what it is: a tax on innovation. Technology companies would find themselves under constant pressure from entertainment industry lawyers waving their newly-minted "inducement" law. This means many great products would be hobbled, and many others would never be built. Less flexible, less useful products means fewer sales, lower revenues. That's a tax on our nation's technology companies, a damper on earnings, a drag on competitiveness.
And all for nothing - this tax won't magically solve the file-sharing dilemma, nor will it put a nickel into the pockets of artists.
That's why the Amercian Conservative Union and National Taxpayer's Union have both joined the long list of public interest and technology industry groups opposing the Induce Act.
I'm a copyright lawyer. I believe in copyright. But copyright has never given an oligopoly of media companies a veto over new technologies. Call and write your members of Congress. Tell them that the Induce Act, in any of its many guises, is a tax our high technology economy doesn't need.
California Gets Paper Trail Law
Posted by Cindy CohnTerrific late-breaking news. California Governor Arnold Schwarzenegger today signed the voter-verifiable paper trail bill, ensuring that all Californians will have auditable elections by 2006.
Senators Ross Johnson (R-Orange) and Don Perata (D-Alameda) authored Senate Bill 1438, which requires all electronic voting machines to produce a voter-verifiable paper trail by January 2006, in time for the next statewide election. The new law also prohibits the Secretary of State from certifying paperless electronic voting systems after January 1, 2005, and prohibits counties from purchasing such voting systems after January 1, 2006. The law confirms the orders made by Secretary of State Kevin Shelley late last year.
Your Vote Is Safe - We've Got Paperclips
Posted by Matt ZimmermanAlong with more than two dozen eager international election observers, I recently had the pleasure of observing a live demonstration of one of the controversial electronic voting machines that are in place to record and tabulate millions of American votes on election day.
Results, as they say, were mixed.
Approximately five minutes into the audience participation portion of the Election Systems & Software (ES&S) demonstration, the iVotronic machine inexplicably froze; no amount of touch-screen prodding could elicit a response. Not a problem, the ES&S presenter assured bemused observers. All that was required was a system reboot, a bit of technical wizardry that was accomplished with the assistance of a straightened paperclip.
One might be encouraged if polling places around the country were staffed by a cadre of MacGyvers, but that's not the case. According to the US Election Assistance Commission, the average age of a US poll worker is 72, and while their dedication is to be commended, many poll workers in the upcoming election will have received little training on this new technology. Inadequate training for poll workers has been cited as a significant contributor to many of the problems seen recently with electronic voting machines, including problems with ballots and voter-access cards. It will indeed be interesting to see how many November voting machine problems will be traceable to training issues. The percentage, I fear, won't be small.
But the demonstration snafu also raises a host of other obvious questions. If vendors can't get the machines to work properly during controlled demos, what should we expect on election day? Recall the embarrassing moment in August when Sequoia Voting Systems, demonstrating their new paper trail-equipped voting machine, produced an electronic vote tally that differed from the paper trail...with the electronic vote tally failing to count Spanish-language votes, no less. And how do we know what will happen to votes if such a system crash happens on election day - will the machines accurately retain the electronic records? The answer I got during the demonstration was the predictable "trust us." Unfortunately, it's getting harder and harder to do that -- paperclips notwithstanding.
Beyond Re-Animator: PATRIOT II Rises Again
Posted by Donna WentworthIt looks like death was just the beginning for the never-introduced "Domestic Security Enhancement Act of 2003," otherwise known as "PATRIOT II." As the Associated Press, LA Times, and Washington Post reported last week, lawmakers are circulating draft legislation that breathes new life into some of the most threatening provisions in PATRIOT II. The draft legislation is meant to implement intelligence reforms as recommended by the 9/11 Commission Final Report, but goes far beyond those recommendations -- including giving federal agents the power to use secret foreign intelligence warrants and wiretap orders against people unconnected to any terrorist group or foreign nation.
EFF has acquired a copy of the draft legislation (PDF), introduced this past Friday. Peter Swire offers a brief analysis of the bill on the Politech list, echoing our concerns:
Without the requirement of a link to a foreign power, there are grave constitutional questions about whether this secret wiretap is allowed under the Fourth Amendment. Furthermore, the "lone wolf" provision opens the door wide to surveillance of citizens for domestic surveillance and law enforcement purposes. Searches within the US should still presumptively be done in compliance with the Fourth Amendment.
Presumptively, indeed.
Broad Coalition to Congress on Induce Act: Whoa There! Not So Fast
Posted by Jason SchultzToday, EFF joined a broad coalition of public interest and industry groups in sending a strong message to Congress regarding the highly controversial Inducing Infringement of Copyrights Act (S. 2560): Slow down.
The Induce Act proposes a dramatic change to current copyright law. For the first time in history, it would hold technology makers and service providers liable for copyright violations by end users even if they never knew, contemplated, or intended to facilitate user infringement. It would also undermine the 20-year-old Betamax doctrine, a safe harbor for tech companies that paved the way for one of the largest explosions of technological innovation in history.
Every other major change to copyright law in the past century has taken years to develop in order to consider the ramifications for all parties. Such deliberations have including reports, hearings, and other opportunites for the public's voice to be heard alongside those of industry. Even the process of passing the controversial Digital Millennium Copyright Act of 1998 took over three years to finally become law. Now, Senator Hatch and his colleagues want to pass Induce in the next two weeks.
The coalition opposing this rash move includes a broad range of companies and organizations, including Google, Yahoo!, Public Knowledge, Intel, IEEE-USA, Sun Microsystems, Consumer Electronics Association, Verizon, Radio Shack, Earthlink, the Association of American Universities, Texas Instruments, and the National Venture Capital Association, among others. With such a wide array of voices calling for more careful consideration, there should be no question that passing the bill at this early stage would be a huge mistake.
For more about the coalition letter, see the press release by Public Knowledge.
Betamax Under Siege - Again
Posted by Fred von LohmannThe Senate Judiciary Committee, responding to the hail of brickbats that greeted Senator Hatch's "Induce Act," asked the Copyright Office to propose something that would be more popular with the technology community. Here's the heart of what it came up with:
Whoever manufactures, offers to the public, provides, or otherwise traffics in any product or service, such as a computer program, technology, device or component, that is a cause of individuals engaging in infringing public dissemination of copyrighted works shall be liable as an infringer where such activity:
(A) relies on infringing public dissemination for its commercial viability;
(B) derives a predominant portion of its revenues from infringing public dissemination; or
(C) principally relies on infringing public dissemination to attract individuals to the product or service.
You can read the entire proposal here [PDF].
In other words, for all wireless and networked (i.e., "dissemination") technologies and services, the tried-and-true Betamax defense would be replaced with the new "3-part test" in the paragraph above.
This reminds me of the bill introduced in 1906 at the behest of music publishers, which would have given them the exclusive right to make machines capable of reproducing sound. In essence, the Copyright Office is proposing that copyright owners get a new exclusive right over a certain subset of machines that are capable of "disseminating" copyrighted works.
If this isn't about using copyright law to squash disruptive technological innovation, I don't know what is. Transport yourself back to 1976, substitute the word "reproduction" in place of "public dissemination," and you would see the VCR and the cassette recorder banned. Today, because any effort to ban those kinds of private copying technologies would result in public outcry, the Copyright Office takes aim at the technologies of the future: wireless and networking.
Some try to justify this arbitrary line between past and future by saying "but mass distribution is different." Of course, that's what the entertainment oligopolists said about "mass reproduction" and "mass broadcasting" back in the day. Only because they were not able to stop those technologies did they discover the new business opportunities that they enabled.
So let me tell it like it is: The Copyright Office has, today, come out with a proposal that is profoundly and fundamentally anti-innovation. Were it to become law, it would be very bad for creator and consumer alike.
MSFT About-Face on "Freedom of Music Choice"
Posted by Fred von LohmannAs we reported last week, Microsoft's new music download store, MSN Music, advised its frustrated iPod-toting customers to simply burn their purchases to CD, then rip them to an open format like MP3. That way, they could play their MSN Music downloads on their iPod (or any other device) without having to worry about the incompatibilities created by Microsoft's platform-specific DRM restrictions.
Of course, that was too good to last. According to Salon, senior Microsoft honchos decided to have that bit of tech support advice pulled off the website.
I don't know whether Microsoft did it under pressure from the record labels, or out of a desire to maximize platform lock-in, but I do know it wasn't to benefit Microsoft's customers, the people actually expected to be paying for the MSN Music downloads. Chalk this up as another anti-competitive, anti-consumer use of DRM.
Log Not, Subpoena Not: No-Logging Policy Helps Indymedia through Grand Jury Subpoena
Posted by Wendy SeltzerWhen NYC Independent Media Center's ISP, Calyx Internet Access, was served with a grand jury subpoena last week, their lawyers' job was made considerably easier by Indymedia's no-logging policy.
Calyx got the subpoena in connection with a Justice Department investigation into the posting of an RNC delegate list -- it was posted to Indymedia websites as well as elsewhere on the Web. The investigation itself seemed intended to chill First Amendment-protected expression, but because they had nothing to disclose, ISP Calyx and Indymedia were not chilled. Calyx was able to turn over all the information it had, the email addresses of four administrators, and avoid being called to testify before the grand jury. The Indymedia administrators, in turn, knew their machines could not provide any further information for the investigation.
Indymedia's FAQ states that "Indymedia sites are spread across many servers and we do not log IP addresses as a way of protecting the privacy of our visitors." As Indymedia admin Brian Szymanski told Wired News, Indymedia allows for anonymous and pseudonymous posting as well as posting associated with registered email addresses, which the site does record. "Anonymity has always been essential to what Indymedia is trying to do because we want to empower all citizens to make their own news and write about what they find to be important," said Szymanski. "We have whistleblowers or victims of government harassment and sometimes they need to be protected by anonymity."
Indymedia had adopted its anti-logging policy several years ago, after being targeted by an FBI investigation of anti-FTAA protests in Seattle. For those concerned about free speech who haven't yet adopted similar policies, EFF has prepared a set of legal and technical recommendations, best practices for online service providers, for limiting the logs you keep. For more detail, see the EFF whitepaper [PDF].
More on the Indymedia subpoena, for which EFF helped Indymedia find counsel with the ACLU: Wired News,
CNN,
Associated Press,
New York Times.
