:: Threnody for the Public Domain ::

A blog to track the current state of copyright and related issues.
:: welcome to Threnody for the Public Domain :: bloghome | contact ::
[::..copyright resources..::]
:: Lessig Blog [>]
:: Chilling Effects [>]
:: UNESCO Copyright [>]
:: The Shifted Librarian [>]
:: The Shifted Librarian [>]
:: Freedom to Tinker [>]
:: WIPO [>]
[::..other recommended..::]
:: The Amazing Librarian [>]
:: Planet Neutral [>]
:: Graduate School of Library and Information Science, UIUC [>]

:: Friday, May 14, 2004 ::

The Congressional Subcommitte on Energy and Commerce is debating the passage of the Digital Media Consumer's Act of 2003. If the bill gets passed, you and more importantly, your library, might actually get to use your fair use rights.
:: Lauren 7:29 AM [+] ::
:: Thursday, April 22, 2004 ::

Circumventing Verizon v. RIAA

In a decision in December of last year, the D.C. Appellate Court found that the RIAA had no right to force Verizon to disclose the names of two subscribers who were allegedly using the service to access KaZaA in order to share mp3 files. This decision overturns the earlier District Court decision forcing Verizon to comply with the RIAA's subpeonas under the Sec 512 of the DMCA.

This decision has been celebrated as a victory for Verizon and other ISPs. More than that, of course, it's a victory for their subscribers right to free assembly and privacy.

New legislation however, could make this decision and any others like it meaningless. Consider this from Public Knowledge regarding the proposed Piracy Deterrence and Education Act of 2004 (HR 4077):

"H.R. 4077 presents a number of changes to the enforcement of copyright law:
Section 3: The section calls for the FBI to "facilitate the sharing among law enforcement agencies, Internet service providers, and copyright owners of information concerning acts of copyright infringement." Based on Chairman Smith's statement made during the recent markup hearing, this section was written as an end-run on the Verizon v. RIAA DMCA / Sect. 512 case. It is not clear by the language of the bill exactly what information an ISP is to share with law enforcement agencies, nor does it indicate what, if any, court orders are needed to extract this information from an ISP. There are serious due process and privacy implications to this section."

So, what up with that, yo? What good is case law if the PDEA would allow the FBI to force ISPs to surrender the names of their subscribers to organizations like the RIAA? Appearently, Rep. Lamar Smith of Texas who proposed the bill believes that the rights of citizens are just so many dead raccoons on the highway toward corporate profit.
:: Lauren 5:55 PM [+] ::
:: Saturday, March 27, 2004 ::

Free Culture Audio Book Project

What's better than a new book by Lawrence Lessig? How about an audio book version? Check out Chapter One from ITConversations right now!
:: Lauren 11:28 AM [+] ::
:: Saturday, April 26, 2003 ::

DMCA and Copyleft

Take a look at this discussion on Slashdot. It seems that an author of several copylefted works is disturbed that an unknown individual is taking his works and selling them on eBay as if they were 1) his own work, and 2) not already available for free. The author wants to stop this activity on the grounds that it's unethical and that by selling the materials, the unknown individual is violating the idea of copyleft by taking free information and making it not free.

Even more troubling is the issue of how to stop this abuse. If the author invokes the DMCA, eBay would be forced to turn over identifying info about the unknown seller.

Is this a good use of bad policy, or a principal-rending action tantamount to capitulation?

I'm still mulling this over and I'm sure that I'll have more to say on it later, but my first thought is that using the DMCA would be counter-productive in the long run. The respondents on Slashdot suggested other ways of getting the info through eBay, working with eBay to stop the abuse, or (probably most sound) calling a lawyer. But it seems to me that the best thing to do is to fight information with information. The works in question are physics textbooks and the author is most concerned that the buyers of the copyleft materials won't know that the info is already free and that they have the right to modify these works. Perhaps the first thing to do is to send out notices and postings within this specialized community letting them know that this is going on. In addition, though this just occurs to me now and I don't know if ebay would let you do it, but the author might try to set up his own storefront on eBay to "vend" the copylefted works. Through this vehicle, he could get out the word to would-be buyers that are outside of the obvious physics community that these works are actually free. What a way to undercut the competition!

Tip o' the pen to Kurt!

:: Lauren 3:18 PM [+] ::
:: Wednesday, April 23, 2003 ::

World Book and Copyright Day

April 23 has been named World Book and Copyright Day by UNESCO. The date, chosen because it marks the birth and/or death of gaggle of writers, is intended to encourage young people in particular "to discover the pleasure of reading and gain a renewed respect for the irreplaceable contributions of those who have furthered the social and cultural progress of humanity."

I've got a couple of thoughts on this event. First, it's interesting to me that UNESCO wants to associate "respect for the irreplaceable contributions" of the canon of writers and thinkers of the world with reverence for copyright. It seems to me that many of the people mentioned in conjunction with the UNESCO event, like Cervantes and Shakespeare, were successful contributors to "the social and cultural progress of humanity" without the aid of copyright law. How many creative works now are being blocked or are forbidden because of unbalanced copyright protections? Mightn't these works also enrich humanity?
How much of the impact and influence of these works has been due to their general availability in the public domain?

Also, It is limiting and short-sighted to associate copyright strictly with books, as this event does. The efforts of WIPO and the impact of new legislation such as the DMCA should be a clear indication that copyright is not merely an issue of book-format, or even of physical, printed information.

:: Lauren 11:19 AM [+] ::
:: Thursday, April 10, 2003 ::

Our Blog Mistress Reacts Indignantly

Ok, so I'm thinking over the decision in the N2H2 case and something occurs to me. In his ruling, Judge Sterns writes that "there is no plausibly protected constitutional interest that...outweighs N2H2's right to protect its copyrighted property from an invasive and destructive trespass." (my emphasis) Judge Sterns is defining Eldelman's academic pursuit as "an invasive and destructive trespass." How is that the case? OK, invasive, maybe, but only because N2H2 doesn't want to expose itself to criticism. Destructive?! Only in as much as it Eldelman's work has the potential to indicate flaws in the algorithm of the software. But that provides a legitimate critique of the filtering that could be used to make it more efficient--therefore benefiting the creators of the software by indicating the points that could be strengthened. Trespass??? N2H2 proffers its software on the market as the best option for people who either want or are forced to use filters. Are the consumers to have no avenue for testing the validity of these claims?!

At worst in this proposal, we get better filtering software. At best we get evidence against the myth of filtering as a means for "protecting" children from pornography. Through the wording in his ruling, it seems to me, Judge Sterns is protecting N2H2's right to the (potential) myth that bolsters its market share. So I guess that's what copyright is all about. The Honorable Judge Sterns has made N2H2's claims to having "the most effective filtering list" completely unassailable through the prohibition of meaningful investigation.

"What more evidence do we need of the stifling and socially detrimental nature of the DMCA?" she asks with exasperation.

:: Lauren 10:07 PM [+] ::

"no plausibly protected constitutional interest" to override copyright

That's what you've got, friends. Nothing. At least according to U.S. District Judge Richard Sterns.

On Wednesday, Sterns threw out a case brought by the ACLU against N2H2 on behalf of Harvard Law student Ben Eldelman. Eldelman was engaged in researching the effectiveness of filtering software when he requested that N2H2, which created the Bess line of filtering software, provide him with a list of the Internet sites that the software blocks.

Bess filters, the most widely used Internet filters, are particularly in demand since the passage of CIPA in 2000. CIPA, or the Children's Internet Protection Act, demands that all public schools and libraries install filtering software on their computeres in order to receive government funding.

N2H2 refused to provide a list of restricted sites for Eldelman's research and Eldelman went to court to acquire permission to reverse-engineer the software in order to continue with his work. At issue in the suit were both Eldelman's ability to obtain immunity from possible lawsuits by N2H2 and section 1201 of the DMCA, which forbids the circumvention of copyright protection systems. Judge Sterns' ruling Wednesday stated that "there is no plausibly protected constitutional interest that...outweighs N2H2's right to protect its copyrighted property from an invasive and destructive trespass." Strong words. Though some exemptions for reverse engineering of software, the ACLU believed that Eldelman's case was not protected because his purpose was a critique of the filtering technology. They argued that an additional exemption was required in this case.

I can't think of a better example of how the DMCA's extreme definition of copyright not only stiffles creativity but also explicitly prohibits the type of work that will directly benefit the general public--you and me, our children in schools and at home. N2H2 is afraid to distribute any information about its proprietary software. Are they worried that other people will copy their creation, or is it more an issue of avoiding an investigation into what they actually are and are not blocking? N2H2 proudly touts its claim to have the most effective filtering list available. It cites studies from both the Department of Justice (conducted by eTesting Labs) and The Kaiser Foundation to that effect. Indeed, in both of these studies, N2H2 software had the highest performance ratings, blocking the highest amount of "undesirable" content and permitting the most educational, medical or "acceptable" content. But neither of these studies began with a master list of all sites block by N2H2 software. The Kaiser Study simulated young people's educational Internet searches in various search engines and analyzed the relevance of the resulting hits. The Dept of Justice Study began with a list of websites and ran attempted to access them while running the filtering software. They then assessed the filter's effectiveness based on what was restricted and what was allowed.

But none of these studies began with an assessment of a list of all sites blocked by N2H2 software. The DOJ study found that N2H2 had a "Correct Blocking Ratio" of 98%. But how effective is that? Assuming that we can even extend the results of this limited test across the entire Internet, at an estimated size of over 3 billion distinct pages what is lurking in that extra 6 million pages? What is not getting through that should? What "questionable" content is being allowed? Who knows?

:: Lauren 1:26 PM [+] ::

Vivendi Universal Threatens Suit, Emory Installs New Firewall

According to an article in The Emory Wheel, a new firewall software is being tested that will block outside Internet users from accessing shared files on computers inside the Emory computer network. The software, which will be installed in its final version this summer, will not restrict peer-to-peer filesharing between computers within the Emory network. The university installing the software in an effort to increase network speed by cracking down on the highest bandwidth users. However, the article quotes Team Lead of Security for Emory's Information Technology Division as saying that the school is also concerned about a lawsuit being threatened by Vivendi Universal, which controls Universal Records, MCA Records and MP3.com. According to the article:

More than 100 students at Emory have already had their Internet connections temporarily inactivated because of reported copyright violations across the network. Two years ago, Emory promised to single out the top 10 bandwidth users each week and shut off their Internet ports.

So, what's happening here? Vivendi has developed methods for tracking the IP addresses of those who share files and has threatened to sue Emory. Is Emory the one doing the filesharing? Since this firewall will not stop internal filesharing, will this firewall do anything to address the suit at all? Moreover, I want to know what this means for universities and other organizational networks as hubs for information sharing. What else is Emory giving up once it rolls over and acts as if the institution is guilty of a crime through the simple provision of information technology to intra- and extramural community members? It's uncharacteristic, I admit, but put aside the issue of copyfight for a second. What implications does this have for everyone's access to information if this scenario were moved to a publicly funded university? A lot of questions. I don't know what they all mean. However, we must not let corporate interests bully institutions of high education into hemming in their traditional mission of creating and disseminating knowledge.

:: Lauren 11:33 AM [+] ::
:: Monday, April 07, 2003 ::

A few more thoughts on super DMCA

In the interest of explanation, here are two articles off of ZDNet.com about the new super DMCA laws currently being considered in several states.

:: Lauren 12:42 PM [+] ::

WIPO--Eroding Your Right to Information for Over 30 Years

Heads up, kids. The WIPO Summit of Intellectual Property and the Knowledge Economy will be held in Beijing from April 24-26. WIPO, which is currently associated with the WTO, has as its mission the bolstering of intellectual property rights around the world. This is the darling organization whose Director General Kamil Idris that has the guts to argue that the only reason for creating new works is the promise of royalites associated with the establishment of copyright; while arguing at the same time that intellectual property rights should be enforced more heavily so that pirated medicines (for example) which have the potential to harm, will be kept out of the marketplace. (See "Intellectual Property: A Power Tool for Economic Growth")

I'd like to ask him why he thinks that there is a market at all for prescription knock-offs. Hmmmm. Maybe because brand name prescriptions are too expensive for many people to purchase? How dare he? This type of one-sided view of "economic development," one lacking in any consideration of global socio-economic power dynamics, is unconscionable.

I find though, that I can't help but agree with the man when he make the following statement:

“IP [Intellectual property] can only thrive in a culture in which its importance is fully understood and accepted, and in which it is protected by laws that are vigorously enforced. WIPO’s mission will continue to be to work for robust IP protection and enforcement to assure its continuing vitality.”

Fine, no argument there. Mr. Idris' error however, is in implying that "intellectual property" is synonymous with "creative works." Otherwise he is absolutely right. IP is not a "natural" thing, but a concept created by interested parties. One that must be constantly fought for and bolstered if it is to have any hope of surviving. If we stop pretending it exists, it ceases to be an issue.

:: Lauren 12:35 PM [+] ::

Ethics, Politics and the Public Domain

On Wednesday, the Supreme Court heard arguments in a case that pits 20th Century Fox against Dastar Corp. At issue is a documentary based on the memoirs of Dwight D. Eisenhower. The movie "Campaigns in Europe" makes liberal use of the content of an older movie entitled "Crusade in Europe." Fox, which owned the rights to "Crusade in Europe," allowed the work to fall into the public domain in the 1970s. Dastar modified the content, but maintained a significant portion of the film for its 1995 documentary release. So Fox has been suing Dastar, not for stealing, but for falsely representing the creators of the work. A federal court agreed with them to the tune of $1.5 million. But the US Supreme Court doesn't seem totally convinced. Dastar doesn't even have to argue that its work is transformative, and therefore exempt from copyright protections--because the film is question was no longer under copyright. I'm no lawyer, but I don't think that copyright law covers simply being unethical. The Court Should tell Fox to go jump in a lake.

:: Lauren 10:48 AM [+] ::

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