Blogging WIPO's Main Event

Posted by Ren Bucholz

EFF returned to Geneva this week for the WIPO General Assembly, a two-week marathon meeting where last year's progress is reviewed and future plans are hatched laid. While there are dozens of items on the agenda, we're tracking two very closely: the future of WIPO's work vis-a-vis the developing world (a.k.a. the Development Agenda) and a proposal to turn broadcasters into a new class of copyright holders (a.k.a. the WIPO Broadcasting Treaty). Both are currently moving in the right direction.

[Analysis and notes after the jump.]

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Patry Calls Subway Map Copyright Threats "Shameful"

Posted by Donna Wentworth

As EFF friend Wendy Seltzer observes over @ Copyfight, the public transportation systems in New York and San Francisco have started an ugly trend: threatening people who make subway maps available online in a format easy for downloading to iPods. William Patry took note of the development, and he doesn't like what he sees:

This is very disturbing. Those agencies have much more pressing, public safety and service issues they should be worrying about than vigorously asserting copyright in subway maps. And if their concern is that the iPod maps were inaccurate, they should have offered to provide a free, up-to-date file. The only purpose for such maps in that format is to inform the public about which trains to take. Copyright is both unnecessary and inappropriate. The agencies' actions are shameful.

Indeed.

Shamefulness aside, do the agencies have any legal basis for sending cease-and-desist letters? Patry concludes that they may -- but that hardly means they should actually be using copyright claims to stop people from finding their way around. Writes Patry:

There is no statutory bar to protection for original subway maps, therefore. There should, though, be a common sense bar but that, like common decency, is apparently lacking.

Wired has additional coverage here.

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DRM Sinks to New Low

Posted by Annalee Newitz

Memletics is one of those dime-a-dozen companies selling a product it promises will teach "accelerated learning" and how to "remember more." What makes Memletics remarkable is the digital rights management (DRM) scheme it uses on its books. The company's main product is a training manual that explains the "Memletics advanced learning system" -- and if you loan it to a friend, you do so at considerable personal risk. You see, Mimletic prints out your "name, address, telephone number, credit card number, and other information" on every tenth page of the e-book. The truly amazing part is that the company does this with its printed manuals too.

The obvious subtext here is that if you share your valuable Memletics manual, you open yourself up to identity theft or worse, since the company includes your address and phone number. This is one of the only examples we've seen of DRM that works by intimidation rather than technical measures. It does have one thing in common with good old fashioned copy protection schemes like DVD CSS, however: people can't make fair use copies of the books. Readers are also threatened with identity theft even if they never make a single copy. Somebody glancing over a Memletics fan's shoulder on the subway could jot down her credit card information and start buying crates of Scientology books with it, or maybe just show up at her home. And what if your child uses Memletics? We work hard to teach kids that it's not safe to give away identifying information to strangers and here Memletics is doing it to them as punishment for violating a $32 contract.

Adding insult to injury, Memletics offers "incentives" to people who report violations of their copyright. These include, according to the company's website, "A discount, up to the full purchase price, of a valid Memletics product. Up to 5% of any net proceeds resulting from legal action against the parties involved. Other incentives as we see appropriate."

UPDATE: The publisher of Memletics contacted us to let us know that this entry is "factually incorrect" because Memletics does not include addresses or full phone numbers in the personal information that's inscribed in their books anymore. Indeed, that is what the site says today, but the Wayback machine comes to the rescue again, providing us with yesterday's page that we wrote about. Quick work on the part of Memletics' webmaster, but still not so swift for consumers, who are still left with a big chunk of their personal information printed inside their books. But this change in policy is a good start.

The publisher also mentions that people who want new versions of their books, with less personal information inside, can get them from the Memletics website free of charge. He adds: "I highly recommend other publishers do not follow the original path we took to protect ebooks."

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More Rights Are Wrong for Broadcasters

Posted by Donna Wentworth

Copyright scholar James Boyle has a brilliant Financial Times column on the WIPO broadcasting/webcasting treaty that threatens to gum up the Internet with a new layer of "middleman" rights, for the nonsensical reason that it will create "parity" between broadcasters and webcasters:

The Broadcasting and Webcasting Treaty, currently being debated in Geneva, is an IP hat trick.

Much of what is broadcast over the airwaves is copyrighted -- the broadcaster licenses the film or song from a copyright holder and then plays it to you at home. What you probably do not know is that nearly 50 years ago broadcasters in some countries got an additional right, layered on top of the copyright. Even if the material being broadcast was in the public domain, or the copyright holder had no objection to redistribution, the broadcaster was given a legal right to prevent it -- a 20-year period of exclusivity. The ostensible reason was to encourage broadcasters to invest in new networks. The US did not sign this treaty. Has the US broadcast industry stagnated, crippled by the possibility that their signals will be pirated? Hardly. Copyright works well and no additional right has proved necessary. Has WIPO commissioned empirical studies to see if the right was necessary, comparing those nations that adopted it with those that did not? Of course not. This is intellectual property policy: we do not need facts. We can create monopolies on faith.

But now a new diplomatic conference is being convened to reopen the issue. Doubtless the goal is to abolish this right? ...No.

In the funhouse world that is intellectual property policy, WIPO is considering a proposal to expand the length of the right by 30 years and a US-backed initiative to apply it to webcasts as well. After all, we know that the internet is growing so slowly. Clearly what is needed is an entirely new legal monopoly, on top of copyright, so that there are even more middlemen, even deeper thickets of rights.

Not even the supposed beneficiaries of this new layer of rights agree that it makes any sense at all. Indeed, a group of 20 webcasters has written an open letter to WIPO specifically to reject it, explaining, "We do not desire the 'protection' you offer us, nor do we believe it will benefit us."

Read the entire FT column for more details about what's happening at WIPO and why. And if you haven't done so already, ask Congress to scrutinize the treaty so that we don't get another WIPO-hatched debacle like the DMCA.

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You Are the MPAA: A Broadcast Flag Update

Posted by Danny O'Brien

Imagine you're a happy-go-lucky conglomerate of Hollywood media companies.
Faced with some tweaks to your business model that you'd rather not
contemplate, your members have conceived of an ingenious alternative:
compelling tech companies to implement shoddy copy-protection on every digital
AV-enabled computer in the land.

Let's call this cunning plan the "Broadcast Flag."

Your "Broadcast Flag," while undoubtedly quite brilliant and only slightly
delusional, has been running into a few problems recently. First, after it was
torn to shreds by techies in its drafting committee, you had to shout more than usual to get the FCC to adopt it.

Whereupon it was promptly smacked down in court, which decided that dictating what people can do with free over-the-air digital media after it reaches their home devices is too vast a power, even for the FCC.

Oh well. There's still Congress, right? Ah, if only it were that simple. Turns
out Congress has a quite unnatural fear of signing legislation that meddles in the intimate relationship between American couch potatoes and their TVs. Plus, nowadays the whole political process is scrutinized by
millions of Net types bleating about "transparency" and the need to rein in "special interests." Which, believe me, does not help.

Sometimes you must wonder: How will I ever manage it? Pull yourself together,
media conglomerate! You're a big brave incumbent industry. You can do it!

Let's consider your options...

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Bronfman, You Hypocrite

Posted by Fred von Lohmann

Edgar Bronfman Jr., the CEO of Warner Music Group, recently took a moment to attack Apple's Steve Jobs for the 99-cent pricing of music downloads in the iTunes Music Store. According to Bronfman, "Not all songs are created equal -- not all time periods are created equal. We want, and will insist upon having, variable pricing."

What? Bronfman singing the praises of "variable pricing"?! Lest anyone forget, he was at the helm of Universal Music Group back when it (along with all the other major labels) was engaged in a scheme of price fixing aimed at keeping CD prices high.

And Bronfman apparently doesn't think that "variable pricing" might include lowering the price of some tracks below 99 cents. Said Bronfman, "Some songs should be $0.99 and some songs should be more." So what he meant to say is "we should be raising our wholesale prices and preventing people from discounting."

This was, of course, exactly the aim of MAP price-fixing scheme that Bronfman's former label, Universal, was running in the late '90s.

In the age of P2P file sharing, raising your prices and alienating your best retailers (not to mention fans!) is a recipe for disaster. Perhaps Bronfman is not the best CEO for a record label trying to find its way into the 21st century.

Correction: It turns out that the Red Herring article did not carry Bronfman's full comments. According to the Hollywood Reporter, Bronfman went on to say, "That's not to say we want to raise prices across the board or that we don't believe in a 99-cent price point for most music. But there are some songs for which consumers would be willing to pay more. And some we'd be willing to sell for less."

Of course, the fact remains that the guy calling for "variable prices" today is the same one who backed MAP yesterday. It would be interesting to ask whether he continues to believe that MAP was good for consumers.

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New Guide for Political Blogging and Activism

Posted by Donna Wentworth

Reporters Without Borders has published an outstanding how-to guide for bloggers and "cyberdissidents" seeking to make their voices heard in the face of government monitoring, censorship, and worse. Reads the introduction:

Bloggers are often the only real journalists in countries where the mainstream media is censored or under pressure. Only they provide independent news, at the risk of displeasing the government and sometimes courting arrest. Plenty of bloggers have been hounded or thrown in prison. One of the contributors to this handbook, Arash Sigarchi, was sentenced to 14 years in jail for posting several messages online that criticised the Iranian regime. His story illustrates how some bloggers see what they do as a duty and a necessity, not just a hobby. They feel they are the eyes and ears of thousands of other Internet users.

The guide includes profiles of bloggers from all around the globe and is available in multiple languages. Check it out and pass the word along!

You may also be interested in EFF's resources for bloggers: How to Blog Safely (About Work or Anything Else) and our extensive Legal Guide for Bloggers, which provides a collection of FAQs on the wide range of legal issues bloggers confront.

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Patry Reverses Course on Google Print Library Project

Posted by Donna Wentworth

William Patry, a highly respected copyright lawyer, law professor, and former copyright counsel to the US House of Representatives, Committee on the Judiciary, has decided he was too hasty when he criticized the Google Print library project:

My initial, negative reactions to Google's project reflected, as it should not have, partisan jockeying. The legal issue remains the same, however: whether copying of an entire work without authorization is an infringement where the ultimate user is able to see only a few sentences of the original. Since fair use is an unconsented to use, the fact that publishers object doesn't matter, regardless of the chutzpadik way Google may have handled the issue (The Second Circuit is divided on whether bad faith is a fair use factor).

[...]

So in the Google project, why should we care if there are server copies? The purposes for the copies in connection with the Print Library project is to give people access to knowledge about the existence of the book as well as a tiny amount of text. That is of great help to researchers and hopefully to authors and publishers of the books too. It in no way harms copyright owners unless the project becomes something else, namely a full-text service which then is a market substitute.

We agree.

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Don't Let Congress Ignore the Broadcast Treaty

Posted by Donna Wentworth

WIPO's "Treaty on the Protection of Broadcasting Organizations" [PDF] is protection, all right: a protection racket for middlemen in the TV and Internet worlds.

If adopted, the WIPO treaty will give broadcasters copyright-like control over the content of their broadcasts, even when they have no copyright in what they show. A TV channel broadcasting your Creative Commons-licensed movie could legally demand that no one record or redistribute it -- and sue anyone who does. And TV companies could use their new rights to go after TiVo or MythTV for daring to let you skip advertisements or record programs in DRM-free formats.

If that wasn't bad enough, the US contingent at WIPO is pushing to have the treaty expanded to cover the Net. That means that anyone who feeds your "sound and images" through a web server would have a right to meddle with what you do with the webcast simply because they serve as the middleman between you and the creator.

John Naughton of the London Observer called the treaty "a control freak's charter." Mark Cuban, Tim O'Reilly, and 18 other Net experts called its webcasting provisions "unnecessary," and "likely to constrain, not increase, the creation of more information products for the public."

And yet, the US WIPO representatives are still pushing for it to go forward.

We don't think they are working in the best interests of the American public, nor do they have any sort of mandate to create new "rights" for middlemen to be used to restrict what ordinary Americans can do with their media. We think that the Library of Congress and the US Patent and Trademark Office should invite formal public comment on what they're doing to our networks, and Congress should hold public hearings so that the audience can have its voice heard.

Write to Congress and remind them that it's government's job to protect all of us, not just the broadcasting industry.

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Congress Seeks to Protect Internet From Campaign Finance Laws

Posted by Matt Zimmerman

In the face of stiff opposition to a plan to extend campaign finance laws to the Internet, which led many bloggers to fear that political speech would be restricted online, members of Congress are now openly calling for legislation to kill the plan before it ever gets off the ground.

The Federal Election Commission's proposal, issued in March, resulted from a 2004 court ruling that found no basis to exempt the Internet from rules intended to regulate campaign expenditures and add transparency to the electoral process. The proposal would, among other things, place limits on political advertisements and require disclaimers for some activities and ads sponsored by parties or candidates.

Several members of Congress attending a House of Representative Administration Committee hearing on Thursday said that they favored making the status quo permanent by rewriting campaign laws to protect the Internet from the FEC. Two members of the FEC also in attendance said that they supported a restricted role for the Commission in this area but said that totally exempting the Internet was a bad idea.

It's hard to disagree with the Commissioners. The FEC wasn't interested in regulating the Internet in the first place, but now that its hand has been forced, the proposed regulations are rather limited in scope. (See EFF's Legal Guide For Bloggers for more information.) A real concern is that the FEC might try to pass more invasive restrictions in the future, but it's hard to make a principled case that the Internet deserves an entire campaign finance carve-out.

Given how hard it is to ask politicians to limit how they can spend campaign funds, it seems likely that the views expressed in today's hearing will win out and render this entire debate moot.

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