:: Threnody for the Public Domain ::

:: 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 [+] ::
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"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.

• ACLU loses digital copyright battle
  
• Judge rejects suit over digital copyright law
  
• Public to chime in on copyright law
  

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 [+] ::
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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 [+] ::
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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.

• States add stricter copyright laws
  
  
• DMCA goes under public scrutiny again
  

:: Lauren 12:42 PM [+] ::
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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 [+] ::
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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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Creators vs. Consumers--A False Dichotomy

Check out the sublime words of Lawrence Lessig regarding file sharing and royalties. This is beautiful because so much of the rhetoric in support of current copyright law holds that if a person makes something, then that person has a right to profit by it. File sharing is sadi to be such a threat because it, the technology itself, allows consumers to steal from creators. Nevermind the fact that it is largely the record companies (publishers, etc.) that are leeching off of the products of these artists, Lessig's words illustrate that this whole argument against file sharing is a false dichotomy. Reforming copyright does not mean ripping off artists.

on what we need courts for

They say I’m a pessimist about the future of freedom on the net, and they’ve got two books of mine to prove it. But the report that the RIAA has now filed suit against four students for sharing content over a university network is a moment of hope. If we work hard to report the details and reality of this suit, then the extremism of the RIAA’s tactics will finally get through.

Let this extremism finally force recognition of the best response to this problem for now: a compulsory license with a large carve out for non- commercial “sharing.” Napster proposed as much in 1998. Had Congress listened, then we would have had just as much sharing over these last 5 years, but artists would have 5 years of income, and fewer of our children would now be felons. Instead, Congress did nothing (except pass the Sonny Bono Act and the DMCA), and 5 years later, artists are no better off, our kids are now “terrorists” (such is the rhetoric of the other side), and the cartel of the RIAA is only stronger.

What politicians need to remember is that Congress has always adjusted the rules by which creators get paid as a response to new technology. That’s just what they should be doing today. Never before has the law been used to force new technology into old way of doing business. Every time before this, it was the law that adjusted to assure artists got paid given the new technology.

There are any number of proposals floating about just now for a compulsory license for content [Ed Felten has a nice post on this; my favorites are William Fisher’s from Harvard, and Neil Netanel’s from Texas] — a way to free content while assuring that artists get paid. All of them would also have the salutary effect of leaving our courts to deal with real criminals (can anyone spell Enron anymore?), and leaving the internet to do what it does best (making content broadly and efficiently available).

It’s time for Congress to turn its attention to constructive ways to assure that artists get paid without destroying the extraordinary freedom of the internet. This has been Congress’s role in the past. It needs to get beyond the distortions of a bunch of lobbyists if its to play its proper role in the future."Lessig Blog, 4/3/03

:: Lauren 8:38 PM [+] ::
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"Has the whole world gone crazy?!"

Check out the status of super-DMCA legislation in states across this great land. Is your home-sweet-home state on the list of those further extending the absurd powers of the Digital Millenium Copyright Act? You can find out thanks to Freedom to Tinker's State Super-DMCA Bills and Laws.

:: Lauren 3:10 PM [+] ::
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From bizreport.com:

Record Industry, Webcasters OK Rates

:: Lauren 2:36 PM [+] ::
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Bullying College Students--Or Colleges?

The RIAA filed suits Thursday in three federal courts against four college students for file sharing on their campus network. According to Wired News the RIAA is attempting to make an example of the four by filing the suit. Damages sought in the suit are $150,000 per song swapped. That the students would be sued to the fullest extent is extreme, certainly.

But is the RIAA leveling this warning shot at the individual file swappers--or at the colleges and universities that the students attended?

Curtis Tompkins, President of Michigan Technological University where one of the students attends school, reacted indignantly in a letter to the RIAA that the association did not follow usual channels to alert the university of the activities. He said that if the RIAA had let them know that the school would have managed the situation in house by shutting the operation down. By going directly after the students, the RIAA implies that the universities in question were not doing a sufficient job at policing their networks. Consider this bit from www.soundgenerator.com:

The RIAA's president also praised the higher education community for the steps that many colleges and universities are taking proactively to address the problem of peer-to-peer infringement on campus. Leaders from the university community have formed with representatives of copyright owners a Joint Committee of the Higher Education and Entertainment Communities. "We look forward to continuing our important work with leaders from the higher education community. Our joint efforts have already yielded progress in addressing the epidemic of piracy on college campuses."

This raises an interesting question. Is it the job of the universities--is it even possible for them--to police all activities on their networks all the time? By acting in the past as the RIAA's toadies, the universities imply that they are indeed resposible for the activities of their students. This sets these institutions up as the next logical target for such suits. Suits in which the RIAA is much more likely to actually collect any damages awarded than it is in this case.

In the words of Virginia Rezmierski, adjunct associate professor at the University of Michigan's School of Information and Gerald R. Ford School of Public Policy: "If you agree that you're liable in any way, then you have no alternative to monitor the networks. You're putting yourself in a position that you can't possibly fulfill."

Holy chilling effects, Batman!

:: Lauren 1:23 PM [+] ::
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