miniLinks for 2007-02-28

Posted by Danny O'Brien

• Supreme Court Debates Patentability of Software
  Justices look skeptically at the details of software's
  protection.
  
• Toward an Ethical Patent System
  European citizens unite against over-broad patents....
  
• Bad Patents Are Bad for Business
  ... as does the European business community to go with it.
  
• Canada Turns Away Americans for Past Misdemeanors
  Thanks to DHS data mining, Canada turned away a visitor who
  shop-lifted during a fraternity prank 20 years ago and
  others with minor criminal records.
  
• Has the Media Center Moved to Silicon Valley?
  On the day of the Oscars, Tom Forenski thinks that films
  have lost their magic, and Net technology has seized it.
  
• Whit Diffie Warns Of Overbroad Privacy Laws
  "I am, on balance, more pleased with the fact that I can
  learn lots of information about people in minutes by using
  the Web than I am concerned about the fact that people can
  learn lots of information about me that way. And I would
  not like to see laws that restrict people's ability to go
  investigate things. "
  
• Protect Your Users' Data With a Privacy Wall
  How one company works to protect its users' financial
  information.
  
• SF Chronicle: Reverse Real ID
  "Congress must take a hard look at whether it makes sense
  to proceed with an expansive law that would be more
  appropriately called the National ID Act."
  
• North Korea and the Internet
  North Korea's strange, inward-looking national intranet.
  
• Did WIPO's Director-General Lie About his age?
  Confidential report suggests that he was 28 when he first
  took the job, not 37, and has repeatedly given the wrong
  age on official documents for 24 years.
  
• The "Crime" of Blogging in Egypt
  Abdelkareem Nabil Soliman is sentenced to four years for
  free speech.
  
• Recording Industry Targets Colleges
  Administrators get caught in the crossfire: "[The
  complaint] is asking us to pursue an investigation and as
  the service provider we don't see that as our role", says
  Purdue spokesman.
  

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Action Alert - Support the FAIR USE Act!

Posted by Derek Slater

Reps. Rick Boucher and John Doolittle's FAIR USE Act [PDF] would remove some of the entertainment industry's most draconian anti-innovation weapons and chip away at the Digital Millennium Copyright Act's (DMCA) broad restrictions on fair use. Take action now and tell Congress to help restore balance in copyright now.

Technology companies play a game of Russian roulette whenever they create products with both infringing and non-infringing uses. Current "secondary liability" standards don't provide enough certainty, and if innovators guess wrong, they can be hit with statutory damages as high as $30,000 per work infringed. When it comes to mass-market products like the iPod or TiVo, damages could run into the trillions of dollars -- more than enough to bankrupt anyone from the smallest start-ups to the biggest companies. Unlike in other areas, the private assets of corporate officers, directors and investors are not shielded from liability in copyright cases.

The FAIR USE Act would limit the availability of statutory damages for secondary liability and allow innovators to make more reasonable business decisions about manageable levels of legal risk. Meanwhile, copyright owners could still get injunctions and actual damages for harm suffered, putting them in no worse a position than civil litigants in most other areas.

The bill would also codify the Supreme Court's "Betamax doctrine" as it pertains to hardware devices, making clear that manufacturers cannot be held liable based on the design of technologies with substantial non-infringing uses.

Finally, the bill would loosen the grip of the DMCA, which restricts circumvention of digital rights management (DRM) restrictions even for lawful uses. The FAIR Use Act adds 12 exemptions, including the ability to circumvent for classic fair use purposes like news reporting, research, commentary, and criticism.

Broader DMCA and copyright reform remains absolutely necessary, but if passed this bill would be a big first step in the right direction. Tell your representatives to support it now.

For more information, read the bill here, and check out this EFF article from last year discussing statutory damages and proposing their elimination in secondary liability cases.

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IPRED2: Pausing For Thought

Posted by Danny O'Brien

Call it the Universal Law of Bad Laws: the more problematic a proposed
piece of legislation is, the keener its advocates are to rush it through. When
that happens, it's often those in the system who call for delay that saves us
all from its unintended consequences.

Praise, then, is due then for Nicola Zingaretti,
the Italian Member of European Parliament (MEP) responsible for guiding the
dangerous Second Intellectual Property Enforcement Directive (IPRED2) through the European
Parliament. Zingaretti called last week for another delay in a key vote by
the EU's Committee on Legal Affairs (JURI),
originally scheduled for today.

Zingaretti's postponement of the vote (his third) shows the complexity and
the growing contentiousness of the directive, first proposed by the European
Commission in 2005.

Even after several months of negotiations, MEPs cannot agree its core
concept
- defining when behavior is on a "commercial scale" and therefore subject to
the draft's harsh criminal penalties - and are taking a closer look at how
the directive would affect consumers. That's a welcome development, although
disconcerting that it is taking place so perilously close to the final key
vote.

The good news is that Zingaretti's postponement gives everyone a
much-needed three week window to ponder the dangers of the directive.

Among those who might like to reconsider are its current supporters on the
committee: who, it transpires, may have turned themselves into IP criminals by
the very amendments that they've proposed - including the removal of the key
"commercial scale" limitation that was intended to exclude consumers and
legitimate businesses from the directive's scope.

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Blogging WIPO: Progress at WIPO sets stage for Second Round of Development Discussions in June

Posted by Gwen Hinze

This last week at WIPO has brought a series of welcome surprises. When the proceedings started on Monday, we had a Chairman who was new to both WIPO and the Development Agenda. The Member States faced a battery of 40 proposals that had to be reconciled into a unified document. To everyone's surprise, that happened by week's end. That WIPO was able to produce such a document is amazing. That the document is a powerful affirmation of many key parts of the original Development Agenda proposal is nothing short of astounding.

In the past, WIPO's process of closed-door "informal" meetings between countries has usually served to weaken strong public interest proposals. But this week, though most of the negotiation happened behind the scenes, the final product contains an array of policies for strengthening development concerns at WIPO. For example:

- Promoting measures that will "help countries deal with IP related anti-competitive practices".
- Considering the "preservation of the public domain within WIPO's normative processes and deepen the analysis of the implications and benefits of a rich and accessible public domain".
- Requesting WIPO "to expand the scope of its activities aimed at bridging the digital divide".

And much more. The full text of proposals adopted is set out below. Remarkably, none of the public interest-oriented proposals were abandoned, or even substantially weakened. Member States and the Chairman, Ambassador Trevor Clarke of Barbados, deserve much credit for this welcome achievement. The Chairman fostered an atmosphere that kept everyone working hard, laughing a little, and avoiding the endless procedural interventions that have plagued previous WIPO proceedings.

The Chairman's help will be needed at this year's second and final special meeting on the Development Agenda. That proceeding will be substantially more difficult for several reasons. First, there will be nearly twice as many proposals to deal with in the same amount of time. Second, those proposals are considered more "controversial" -- i.e. many are opposed by either the United States, the European Union, or both. In contrast, all of this week's proposals (save one) were supported by both.

This week brought new momentum into the years-long fight to weave public interest concerns into the fabric of WIPO. We'll be there in June to report on whether that momentum is facilitated or frustrated. In the meantime, we're happy to report that things are looking good in Geneva at last.

Following is the NGO Coalition's notes of the final day's wrap up, including the text of the proposals adopted.

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Fair Use Has a Posse - Now with Insurance!

Posted by Fred von Lohmann

Fantastic news from Stanford Law School's Fair Use Project: documentarians who follow the Center for Social Media's Documentary Filmmakers' Statement of Best Practices in Fair Use can now get "errors and omissions" insurance from Media/Professional Insurance. The key was cementing a promise of pro bono or reduced fee representation to documentaries that follow the Best Practices guidelines:

Working with Media/Professional, and Michael Donaldson, the Fair Use Project has now found a way to insure films that follow the Best Practices guidelines. For films that are certified to have followed the Best Practices guidelines, Media/Professional will provide a special (read: much lower cost) policy; Stanford's Fair Use Project will provide pro bono legal services to the film. If we can't provide pro bono services, then Michael Donaldson's firm will provide referrals to a number of media lawyers who will provide representation at a reduced rate. Either way, filmmakers will be able to rely upon "fair use" in the making of their film. The Fair Use Project and Donaldson will defend the filmmakers if their use is challenged. Media/Professional will cover liability if the defense is not successful.

Generally, the biggest hurdle facing creators who rely on fair use is that they can't get insurance for their projects. And without insurance, almost no major TV network or film distributor will put your project on the air or into distribution. That's why this is such big news -- if this catches on, we can all expect to see much more of the fair use to which we are all entitled.

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RIAA to Parents: Pop-Ups + Viruses = Piracy!

Posted by Fred von Lohmann

If a parent sees pop-up ads and viruses on her computer, she can be sued for copyright infringement by the RIAA.

At least that's what the RIAA is arguing in a recent court filing in the Capitol v. Foster case, in which a federal judge made the RIAA cough up attorney's fees to a mother, Debra Foster, who had been sued because her daughter was file sharing. The RIAA lawyers had dawdled in dismissing their complaint against Foster, even after her child admitted to being the file-sharer in the house (the RIAA went ahead and got a default judgment against the child).

This new filing marks the first time the RIAA has explained its claim that parents are liable for the infringements committed by their children (a theory that has never been accepted by any court, to the best of my knowledge). The argument is pretty remarkable, built on a house of cards including the notion that "everyone knows" pop-up ads and viruses signify piracy! Here's the relevant portion of the RIAA brief:

Given that it has been established that the Kazaa file-sharing program was on the Foster family's computer, the evidence would have established that the Kazaa icon was clearly visible on the computer when defendant was using it and that there were likely a substantial number of pop-up advertisements, the types of which have been associated with the Kazaa program.

In other words, the RIAA believes that pop-up ads and a system tray icon should put every parent on the hook for every download on the computer.

In addition, it is undisputed that defendant had an account with Cox Communications. Defendant's subscriber agreement with Cox made clear that defendant, as the account holder, was responsible for what is done on her account. ...

Here, the RIAA is trying to make a private contract between Cox and the parent into a promise to the RIAA. Of course, since this is standard boilerplate in ISP customer agreements, this argument would apply equally to every broadband subscriber, whether parent, employer, library, or school.

Finally, plaintiffs believe that discovery would have revealed substantial other evidence of defendant's knowledge and material assistance in the underlying infringements. For example, the computer may well have been in a common area such that defendant heard music coming from the computer when admitted infringer Amanda Foster was using it. In addition, the evidence may have established, as it has in other similar cases, that there were viruses on the computer due to Kazaa and that defendant may have had work done on the computer that would have revealed the existence of the file-sharing program. ...

Yes, parents, that means every time you hear music emanating from a computer, the RIAA believes you have a legal duty to check the copyright pedigree of its source. Oh, and if your computer has a virus, same answer.

Similarly, plaintiffs believe that, had they been given the opportunity, they would have been able to prove vicarious infringement. Specifically, plaintiffs would have proved that, as a parent, defendant had the full right and ability to control her daughter's use of the computer at issue. Most parents impose restrictions on computer usage by their children (e.g., rules about pornography sites and chat rooms), and plaintiffs believe that defendant would have done so as well. Plaintiffs further would have proven that defendant had a direct financial interest in her daughter's infringing activities, which, of course, involve substantial sums of money in terms of the value of the recordings at issue and the potential liabilities resulting from such activities.

By this logic, the more responsible you are as a parent, the more the RIAA will be entitled to collect from you. Moreover, the RIAA is confusing the benefit to the child with the benefit to the parent. As every parent knows, just because your kids wants a new CD doesn't mean you would have bought it for them.

Let's be clear what this pretzel logic is really all about -- the RIAA wants to reach a hand into every parent's pocket in order to fuel their mass litigation campaign, irrespective of whether the law supports this. But there is a bigger risk, as well. If courts accept this argument in file-sharing cases, the RIAA will have a precedent to use against every employer, every library, and every school for every copyright infringement committed on its computers. So I'm on the side of the judge in Capitol v. Foster, who dubbed these RIAA arguments "untested and marginal."

For more on parental liability in RIAA file sharing lawsuits, take a look at the memo we prepared on the subject in 2005 (soon to be updated in light of more recent authorities, including Capitol v. Foster).

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Blogging WIPO: Can WIPO Protect the Public Domain?

Posted by Gwen Hinze

WIPO's Provisional Committee on Proposals Related to a WIPO Development Agenda is meeting in Geneva this week to continue discussions about establishing a Development Agenda for WIPO - a set of proposals for measuring the impact of WIPO's work on social and economic development in its member states. Two years after they started, the Development Agenda discussions now involve a wide-ranging set of proposals, including requiring WIPO to recalibrate its technical assistance program (WIPO's practice of advising developing countries on how to set up their IP systems), and to develop mechanisms to protect the Public Domain. The discussions may be obscure, but they are important. The WIPO Development Agenda offers the possibility of creating global intellectual property laws that balance rightsholders' interests with the human rights of the world's citizens for access to medicine and knowledge.

In contrast to the stalling at previous meetings, this week's discussions have proceeded relatively smoothly. Countries have expressed support for, or concerns with, a set of 40 proposals grouped in 5 clusters listed in a table. Proposals have been classified as either "Actionable" (appropriate subjects for further discussion) or "Declarations of General Principles" (which need to be reframed, at risk of being sidelined). The WIPO Chair has enlisted a group of "Friends of the Chair", regional country group coordinators, who have been entrusted with summarizing and redrafting the clusters of proposals into action items. This too, is proceeding remarkably quickly, with a redraft of the most important cluster (Cluster B on norm-setting, flexibilities, public policy and the public domain) apparently getting approval from almost all Member States. For the most part, WIPO Member States have shown an almost unprecedented spirit of cooperation. However, against this backdrop, there has been a strange and perplexing attack against the various proposals on protection of the Public Domain.

Read on for more analysis and notes of days 2, 3 and 4 after the jump.

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Colleges Struggle to Cope With Flood of Copyright Complaints

Posted by Derek Slater

The major record labels are sending thousands more copyright nastygrams to colleges regarding student file sharing this year. Of course, file sharing continues unabated, and these P2P-related notices will simply push fans to use other readily-accessible technologies that the RIAA can't easily monitor -- copying music through iTunes over the campus LAN, swapping hard drives and USB flash drives, burning recordable DVDs, and forming ad hoc wireless networks.

So the RIAA's strategy still won't stop file sharing, but it certainly will cause collateral damage to academic freedom, free speech, and privacy. In a recently released report, the Brennan Center lays out what that cost looks like today based on interviews with representatives from 25 service providers including 10 from universities. Universities are already being forced to waste substantial resources on doing the RIAA's dirty work. Flooded with machine-generated complaints, schools are unable to evaluate the merits of particular complaints. While lacking procedural safeguards to make sure students wrongly accused of infringement are not penalized, many schools have adopted stricter penalties than the law requires. Schools have also adopted network monitoring and filtering tools that interfere with legitimate expression.

The increase in P2P-related notices stands only to make matters worse. The RIAA's Cary Sherman states that the increase in the notices is "something we feel we have to do," but blanket licensing provides a clear alternative to blanket lawsuits. Take action now to help stop the lawsuit campaign.

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LA Times: Start Blanket Licensing, Stop Blanket Lawsuits

Posted by Derek Slater

The major record labels have stayed the course for the last five years with predictable results -- they've stuck by DRM, ratcheted up their file sharing lawsuit campaign, and let revenues continue to slide. Today, the LA Times suggests some reasons to think the labels may finally be coming around to a sensible solution that EFF has long advocated -- blanket licenses for music fans to share as much music as they like for a flat monthly fee.

"If Internet service providers 'want to come to us and look for a blanket license for an amount per month,' IFPI chief John Kennedy said, 'let's engage in that discussion....'

"In the past, label executives made three main arguments against the blanket-licensing concept: it turned their companies into glorified marketing firms; it forced labels to fight over a fixed pool of dollars, so that one artist's gain was another one's loss; and there wouldn't be enough money in the pool to replace all the CD sales that would be lost. The first two complaints get little mention today; instead, the make-or-break issue for blanket-licensing deals is the amount of royalties the service can generate.

"That's the right focus. Blanket licensing wouldn't transform labels into advertising companies; the only element of their business they would lose is the part that distributes plastic discs, and that's going away anyway. When consumers can choose from a virtually unlimited supply of songs, the ability of a label to find, sign and promote the most compelling artists will be even more important than it is today. And the fees that consumers pay for downloading rights represent only a portion of the money [that blanket licensing] could generate for copyright holders. There's also money to be made from advertisers, mobile phone companies, device makers and premium music services that want to insert themselves into the network."

As we point out in our white paper about blanket licensing, even a small monthly fee from the millions of American filesharers could provide more profit than the industry has ever seen.

Unfortunately, the record labels haven't done a complete 180 from their backward-thinking ways. For instance, the labels seem eager to coopt ISPs into helping push their file sharing lawsuit campaign even further, and the AP reports that the labels have radically increased their copyright notices aimed at college students. Neither of these actions will put a dime in artists' pockets or get the labels any closer to a real solution.

The LA Times story closes by saying, "You have to wonder how low [major label revenues] have to go before blanket licenses look like a better approach than blanket lawsuits." To put it another way: how much longer do ordinary music fans and innovators have to be treated like criminals before a better way forward is finally pursued?

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miniLinks for 2007-02-21

Posted by Danny O'Brien

• Free Congress!
  Coders gather to open up more of the legislature's
  deliberations.
  
• Republicans, Democrats Spat Over IP Rights in Congress TV
  After Speaker of the House Nancy Polosi is accused of
  "pirating" C-SPAN, the TV service reiterates that it has no
  copyright interest in the video.
  
• Chinese Lawyers Protest Sina's Blog Censorship
  Fight the arbitrary nature of China's limits on free
  speech.
  
• New York Times on the DJ Mixtape Arrests
  "DJs continued to release tapes -- some with hastily added
  tracks on which rappers cursed the RIAA"
  
• Disney Must Consider Sharing Pooh's Honey
  The endless fight over the merchandising rights to A.A.
  Milne's work continues to plague the copyright maximalist
  company.
  
• Students Balk at University's "Free" Music Deals
  One insider's view of dealing with the college-only
  licensed music services.
  
• Bipartisan Effort to Junk Real ID Law
  Democrat Rep. Tom Allen and Republican Rep. Scott Lansley
  push for reform of costly, invasive national ID mandate.
  
• A 55-inch TV Is too big for the Super Bowl
  Consumer electronics mavens scratch their heads at NFL's
  Super Bowl rules.
  
• UK Government Rejects Calls for DRM Ban
  While faulty, DRM is good for price discrimination, Prime
  Minister's office says.
  
• Framing the DRM Debate
  LinuxJournal's Don Marti says it's about more than
  property.
  
• Europe's Plan to Track Phone and Net Use
  Data retention implementation to be far worse than original
  plans.
  
• UK Now Running 439,000 E-mail and Phone Taps
  Report's author declares wiretap error rate "unacceptably
  high."
  

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