Lessig's speech, "Free Culture", at OSCON 2002 - passionate rhetoric, scary implications
Lessig's speech, given in July 2002, is available online - in transcript form here (or go to Lessig's site for more).
Lessig's been doing the travelling act for a couple of years now, and is going to take a break - this is one of the last.
It's caused a bit of a stir - particularly the emphasis he places on the fact that people interested in free culture - the open source coders, and others - have done nothing to stop the increasing enclosure of the cultural commons. Here is passionate speaking embodied. It's a short, sharp, and powerfully put argument, whatever the criticisms some have made of the rhetoric.
It's strong stuff. He points out first that:

"Never has [culture] been more controlled ever. Take the addition, the changes, the copyrights turn, take the changes to copyright scope, put it against the background of an extraordinarily concentrated structure of media, and you produce the fact that never in our history have fewer people controlled more of the evolution of our culture. Never."

He goes on:

"And what have you done about it? It's insane. It's extreme. It's controlled by political interests. It has no justification in the traditional values that justify legal regulation. And we've done nothing about it. We're bigger than they are. We've got rights on our side. And we've done nothing about it. We let them control this debate. Here's the refrain that leads to this: They win because we've done nothing to stop it."

This has provoked a response by people like Dave Winer, who disputes the point:

"To Lessig, who says we're doing nothing, up yours. We will rock the western political system. In five years every member of the US House will have a weblog and will be communicating directly with the electorate."

Lessig's response - I'm not saying you've done nothing literally - but that you have done nothing politically. And I have to say, Winer might do better to point out what they have done, politically. To argue against the laws that are being proposed around now over there in the United States.or even better - get active politically, and not just on web logs. Whether Lessig's point is an exaggeration or not - and maybe it is - if designed to activate a few people, isn't that allowed? If it stimulates a bit of argument, isn't that good? I say go the rhetoric, if it provokes more debate, and more people to check out the issues.

The reality is, as I have pointed out on this blog before - there is some truly insane legislation being bandied about in Washington. Particularly the bill designed to condone "digital vigilantism" (which, as I've pointed out before, would cause the vigilantes some problems when they tried to say they were protected but got sued in, say, Australia for damage to an Australian machine). Built in control can reach a level that is just insane - or at least has that potential. One of the strange things about the whole process has been three year reviews of DMCA/Australian equivalent laws which have occurred while full controls haven't been built in. And come up with no problems. Not taking into account, of course, the basic point which lessig makes in his speech - that it's not just enforcement through legal cases that is a problem. It's cease-and-desist cases, and it's the fact that "Ask a venture capitalist how much money he is willing to invest in new technology that would touch content in a way that Hilary Rosen [of the RIAA] or Jack Valenti [of the MPAA] don't sign off on. The answer is a simple one: Zero. Zero."

In other news on the Lessig site, do check out the briefs in the Eldred case (challenging the constitutionality of the copyright term extension). I particularly like the economists' brief - some big names, which is good.

 
Quote from the letter that enclosed the voluntary dismissal in the RIAA case:

"You should have already received the notice of voluntary dismissal we filed today in the action related to Listen4ever - - a copy is also attached below. We are pleased that this action was resolved without the need for further litigation. We are also pleased that we were able to engage each of your companies in a dialogue on combatting piracy. In that regard, we are very interested in your ideas for addressing pirate sites like Listen4ever that choose to locate outside of the United States. As always, we welcome your views and insights on this issue in whatever forum each of you think is most appropriate."

You have to love lawyers' letters. "engage each of your companies in a dialogue on combatting piracy"? Since when was bringing a large lawsuit in that way a way of "engaging in dialogue". Are RIAA "cease and desist" letters "dialogue"?
Don't get me wrong here - it's clear to me (as a lawyer interested in IP) that large scale copying is a problem, and does need to be countered. I'm just not always convinced that suing internet service providers, and backbone providers, is the way to go given the implications for the smooth and efficient functioning of the internet, and the large-scale cost-shifting it involves.

 
And in the meantime, the record companies start to get serious about suing individual sharers.
In the same story in the Washington Post that talks about the dismissal of the RIAA v ISPs action, there is mention that the RIAA is suing Verizon Communications to identify a customer who is acting as "a hub for significant music piracy."
Piracy v Privacy indeed. People have long said that if individuals were going to be sued, it would be the most unsympathetic cases - the truly mass copiers. My view? Verizon are going to have a bit of trouble resisting the subpoena, on the basis that they may have, however innocently, become involved in someone else's wrong and are in a position to provide information to those who have been wronged (a Norwich Pharmacal type case).

 
UPDATE: copyright case by record companies against ISPs WITHDRAWN
Ain't it always the way - the minute you report something the world changes beneath your feet. The life of an academic.
The case brought by the record companies has been withdrawn.
The reason is apparently that the site has been inaccessible since Monday, and "will never come back". ominous words indeed. The RIAA said it may revive the lawsuit if the site reappears with a new name or location.
EFF have a copy of the dismissal here.
Washington Post have a story here.

 
Biggest current copyright news: US record companies suing ISPs to get them to block Chinese P2P website
The obvious question in the wake of the Napster case, and following the emasculation of Napster itself, was - well, won't Napster or something similar just move overseas?
We now have another big suit in the US: the record companies are suing certain high profile ISPs to try to get them to block a particular Chinese site (Listen4ever.com) - which is all in English and which allows a lot of similar material to Napster.
Could be a biggie - we've got major record companies (including Sony and Universal) against major ISPs (including AT&T, UUNet, Sprint and Cable and Wireless).
Now, this means going one further back still - we are not suing the actual alleged infringers (the users), nor even the hub providing the software (ie Napster, or in this case Listen4Ever) - now we are going back to the ISPs.

Some obvious queries arise here:
- proving infringement by users (surely that's necessary....) and Listen4Ever
- even if you say (for the sake of argument) - it's ok to require ISPs to block the one site - what happens when every 2 bit copyright owner wants ISPs to block some particular site? What about mirror sites? This could get really complicated for ISPs (talk about cost shifting. Why aren't the copyright owners the ones bearing such costs...).

I have more thoughts, but no time. The NYTimes article is here. There is also information on the EFF site, including the complaint which is available on the EFF site here.

 
P2P Users Beware...
The DOJ has apparently announced that they intend to criminally prosecute P2P users. another threat, perhaps?

 
Now here's a worry: Rosen on the Vigilante "Copyright Owners Attack P2P Networks" Bill.
I've blogged before the bill suggested by Berman in the US Congress - that would allow copyright owners to attack (technologically, not just legally!) P2P networks where they had reasonable grounds for thinking their copyright works were being traded without permission on those networks.
Many have criticised the bill as condoning vigilantism. I've also noted that it wouldn't help copyright owners who had a presence in another country and their "attack" caused damage to computers in those other countries, since I've not heard any other country making even vaguely similar noises.
I admit, I'd dismissed it as another one of those bills that seem to get proposed in the US for publicity purposes of their sponsor, and one that would not be pursued with any vigour.
That's why I'm a little concerned to see that Hilary Rosen , of the Recording Industry Association of America (RIAA), has commented in an interview in the Financial Times that:

"I'd like to see something like the Berman bill pass, so that we can fight technology offenders, not the technology itself. Copyright owners ought to have the opportunity to be as creative technologically as the pirates are. I think the proposal is certainly being taken seriously, unlike other things that have been around."

gees. The other interesting point: her claim that "Our analysis shows that there's still a significant percentage of people [which doesn't] realise it's illegal, and when they do know, they are willing to change their behaviour.". Really? Given the Napster case, and all the publicity the industry has been giving to the issue of their battle against "pirates" - is there really anyone out there who thinks that it's quite legal to downlozd whatever they want? Dream on. It's not that people think it's perfectly legal, in most cases I would think - it's that they think it's morally ok.

 
Beastly Boys?
Copyright activists have a new band to hate. Move over Metallica (the "baddies" in the Napster case...), say hello Beastie Boys.
What happened?
Jazz composer James Newton sued Beastie Boys, who allegedly sampled part of Newton's composition "Choir", in BBs' song "Pass the Mic" without seeking permission. Six and a half seconds' worth; looped more than 40 times.
Newton lost. Apparently it wasn't "original", because the score showed 3 notes (not the multiphonics in the recording).
Not only did he lose, but BBs filed a motion seeking payment of their legal fees. US $492,000. Ouch.
Newton's plea for help can be found here.

 
Copyright and freedom of speech
Went last night to the 2nd of the apparent round of talks at the moment on copyright and its effect on freedom of expression. This talk was much more focussed than the IPRIA presentation that happened recently, perhaps because of the speakers: Julian Burnside QC (of Melbourne) and Charles Alexander of Minters.

Julian Burnside gave his talk on the existence - or rather non-existence - of a "public interest defence" to copyright infringement. The argument? Essentially that there is no public interest defence to copyright infringement in Australian law - whatever Mason J may have said in the John Fairfax case way back in the 80s - but that we should think about one, which would need to be provided in legislation. The argument did divide the panel a bit - while John McPhail (Bakers) agreed, Kate Gilchrist (ABC) argued that there was some potential for a public interest argument, properly put, despite the presence of one clear opponent (Gummow J) on the High Court.

Charles Alexander discussed fair dealing - particularly in light of the Panel decision (and particularly in light of the varying opinions in the Panel decision). Though no one actually used the phrase "chilling effect" in talking about the case, you'd have to say that's the result. What lawyer in their right mind would be able to give any confident opinion on whether a particular clip could be used in any given context, where in court it will be subject to the kind of fine distinctions the full court came up with in that decision? (hot tip: find judge with sense of humour.....).

summary? I'm glad this presentation, unlike the IPRIA one recently, really did acknowledge and argue that we have a real potential problem with restrictions on freedom of expression in light of teh broader uses of copyright law. I'm inclined to think that's pretty important. My own interjection - along the lines of the Bowrey/Rimmer article I blogged recently - that we do need to remember to try to argue for the development of 'orthodox' copyright doctrines (like "substantial part", like idea/expression dichotomy) to counter the aggrandising efforts of copyright lawyers.

I also think something that was raised in discussions might be worth pursuing - the idea that freedom of expression/public interest concerns include the idea of participation in culture. The usual argument against freedom of expression in the copyright context is - freedom of speech is designed to protect your right to express yourself and your opinion - not to express the speech of others. An argument against that in current culture/pop culture/use of computers is the idea that participation in culture/society/democratic dialogue these days perhaps should extend to participating in (ie passing on) culture. And where we might have done that by passing around, lending, books, CDs, movies etc the trend in technology is against that kind of sharing...

 
Developments in the UK: EUCA and the UK anti-circumvention provisions
Declan McCullagh reports that A consultation paper has finaly been released from the UK Patent Office about the European Union Copyright Directive, or EUCA. Draft here. It seems (page 14) as Declan notes to suggest that mere possession of circumvention tools is illegal. ouch - that goes further than DMCA, yes? or DAA?

 
"Mabo" web site name - 6 figure sum?
The domain name "www.mabo.com.au" is owned by a Gold Coast Company.
Apparently it's been put on the market for $165,000, according to a Sydney Morning Herald story.
Understandably, the Mabo family (who are not associated with said Gold Coast Company) are quite upset. According to the smh story:

"The site, which carries a disclaimer saying it has no association with the "wonderful family" of Edward Mabo, said its mission was to bring indigenous and non-indigenous people together and carried information on Eddie Mabo, native title and other indigenous issues."

There's also the additional issue at work here: regarding the use of the name of a deceased person - an issue of considerable concern in Aboriginal culture. (compare this to some of the copyright cases that we've had in Australia - where there was concern, in reports of judgments, as to whether to publish names or not - eg the Milpurrurru case). Another area where western law doesn't fit Aboriginal notions all that well? Interesting that it should come up on the same day that we have the High Court decisions in the Ward case, as well as another associated native title case!

The body responsible for domain names registration in Australia is auDA. auDA's policy states that you can only get a domain name in the ".com.au" space if:
- it exactly matches your business name or a trade mark;
- it is an acronym of your business name or a trade mark;
- is otherwise closely and substantially connected to the registrant, because it refers to some product or service you supply (or similar).
So does that mean that the Gold Coast company have a registered business name or trade mark? If it's a trade mark, does this count as one which is 'scandalous' in law? (s42 Trade Marks Act)? Hmmmm.....
update: I just searched the ATMOSS trade marks database - seems that "Mabo" is not a registered trade mark, at least...

 
More on the "broadcast flag" idea - and the bipartisan copyright 'debate' in Congress...
I've already blogged (I think?) proposed legislation in the United States to insert a "broadcast flag" into broadcasts and devices that receive broadcasts in digital format. The idea as I understand it is to "flag" items that are copy-protected, and force receiving devices (eg tvs) to respect those flags.
CNET is reporting today that the Federal Communications Commission is likely to go with the idea.

The most interesting thing about the story however is the reiterated point - that the push towards such legislation is not just coming from one political party - but is apparently bi-partisan. This is something we sometimes see in legislative moves in the copyright area - the lack of a strong opposing voice except through some lobby groups. Public choice theory (a la Mancur Olson) in action.

 
The Politics and Philosophy of Copyright
Following on from the stuff below on Eldred (or maybe not following on), lawmeme (yale law school page with Slashdot-style discussion of law/internet) points to an interesting Australian-written article on the "Politics of Peer to Peer and Copyright Law" in the Internet peer-reviewed journal, First Monday. The authors: Kathy Bowrey (UNSW) and Matthew Rimmer (ANU).

The discussion is interesting, because it takes a step back from the often rather narrowly focussed literature in this area. Too often the writings on these issues tends to come from one or other political (or perhaps polemical) stance: pro-copyright, pro-recording industry, or free-speech oriented. Bowrey and Rimmer take more of an eagle's-eye view which is particularly interesting, and trace their argument through several of the really key US cases of recent times: the DeCSS (2600) case, the Felten case, Napster. (by the way, for a quite interesting gathering of summaries of the cases, if you bear in mind the particular political orientation/barrow being pushed, see Fred Lohmann's piece for the EFF, "Unintended Consequences: 3 Years under the DMCA").

I largely agree with main thrust of the piece, pointing out the political/strategic aspects of the rhetoric in the copyright context in the US - on both sides of the debate, and not just from the recording industry. I agree that the way the debate about whether to strengthen, or not strengthen protection for copyright works framed in terms that sometimes frame the history of copyright in a very particular way, and sometimes, as they point out later in the piece, in ways that might even weaken the argument against strengthening copyright, by relying on weak 'free speech' arguments over potentially stronger principled arguments.

Bowrey and Rimmer's piece also has some nicely-put insights, too. I like the reference to the way that the "historical reality of copyright as a limited and interdependent right is cast out by reference to a newly reified version - the 'walled' work,"; I also really like the metaphor regarding the way anti-circumvention provisions in the DMCA (and here in Australia, the Digital Agenda Copyright Act) are presented as merely "making more solid" the "membrane" that is the boundary between copyright work and "everything else". The idea of having two separate jurisprudences - one for encrypted, one for unencrypted work - is a good one. The piece also makes a good addition to a literature which has long focussed on the 'politics' involved in drafting legislation like the DMCA, but less on the politics in the case law and judicial approaches.

I have a couple of quibbles, or perhaps rather, queries about the arguments.

First - the diagrams. Perhaps it's just me, but I don't understand them.

Second, maybe I haven't spent enough attention on the piece, but I would have liked to see more explicit or clear differentiation between the tactics and 'court politics' used by copyright owner interests, and the approaches, and responses, of the judiciary.

Third, I agree that academic lawyers do need to "beware" of relying on weak free speech arguments at the expense of detailed consideration of more conventional copyright principles, and do need to avoid getting caught up in the excitement of "emerging jurisprudence". The authors however need to do more to convince me that conventional arguments would work when pitted against the particular anti-circumvention provisions of the DMCA/DAA. Indeed, I'm not sure if this is something academics are being asked to do (in which case I agree) - or academic lawyers speaking to the bench. Or academics putting forward interpretations of legislative provisions?

I raise the point because these arguments would work in some fora (eg, academic debate) but not others (eg, statutory interpretation in Australian courts of provisions like s116A - our anticircumvention provision). For example, the idea-expression dichotomy. It's true that copyright protects only expression, not ideas. It's also true that if you can't get access to a work because of technological protection measures, you don't get access to the ideas, let alone the expression. But how is that the source of an argument to protect defendants against the anti-circumvention provisions? Yes, the legislature has created new property rights (or substantially modified existing ones). But (pace Merrill & Smith), the legislature does that all the time. Yes, this goes against the idea-expression dichotomy. But how does that change the actual interpretation of section 1201 (or 116A in Australia)? There may be ways; I haven't thought it through in a great deal of detail. My point is that the piece doesn't address this, and the authors don't elaborate on whether they think it could be done (or how). Since academics have long argued that the idea-expression dichotomy is more honoured in the breach, is this any more powerful as a source of independent argument in this context? A piece for another day, perhaps, and the warning is apposite to the length of this article. I just want to see the next bit!

Similarly, since the provisions don't refer to "substantial part" in themselves, I'm not sure how this argument fits in to judicial challenges to the legislative provisions.

That said, there are some really valuable points in this essay. I commend it to interested readers!

 
The Eldred Case - developments (otherwise known as the FREE THE MOUSE campaign)
Eldred v Reno is the case challenging the constitutionality of the "Sony Bono Copyright Term Extension Act" in the States - the Act that increased the term of copyright from life of author + 50 years to life of author + 70 years.
The Supreme Court granted certiorari in the case - so they'll be hearing the challenge. The case raises some questions about constitutional limits on Congress' powers regarding copyright - ie are there limits on Congress' powers, so that legislative changes that patently don't logically increase "the progress of science and the useful arts" are unconstitutional. This is because the term extension act is retrospective - and its hard to see how retrospective term extension provides incentives for authors (particularly all the dead ones) to produce more. The case is being supported signficiantly by Harvard's Berkman Centre - see the collection of more information here. Eldred himself is someone who makes a mission of making public domain works available - eg online.

It's interesting of course, because with any luck we might get the Supreme Court's views on the extent to which copyright law should be perhaps interpreted, and extended, with the constitutional purpose in mind. It would be interesting to see what the US Supreme Court's views were on the existence, if any, of limits on Congress' power in this area. Haven't had a lot of significance there since litigation, oh so long ago, about whether Congress had the power to create new kinds of intellectual property - like trade marks. Might also have implications for the way any database law has to be drafted (another "new" kind of IP).

The basic question is of course of much less direct relevance here in oz where we have no constitutional equivalent (ah, how often have I written or said THAT when talking about copyright law). Noting also of course that we haven't had the same kind of term extension here (at least - yet. Query whether the US will try at some stage to extend such a longer term to the international law of copyright, or whether countries like Australia, given the lead of EU and US which both have the longer term, will eventually just fall into line. There seems to be no particular reason to do so, from my perspective.

New development: the government has filed its response brief in the case, available here.
And another new development (update): Loyola Law School of Los Angeles have a symposium edition on the Eldred issue, and the extent of Congress' power in relation to copyright. Looks interesting - seems to have a really wide range of views.
and another update: harvard's greplaw site is also looking at the issue...

 
Digital TV/broadcast: the copyright battle.
Two stories out at the moment - one in Wired and one in CNET - talking about the conflict between consumer electronics industry and the movie industry over the broadcasting of digital content. the Federal Communications Commission are meeting Thursday, to address digital broadcast copyright protection as well as a regulation proposed by Congress requiring consumer-electronics makers to build digital television tuners into television sets by 2006.
Upshot? Movie studios don't think you should be able to videotape movies broadcast digitally. At least not if they don't want you to (which means never).
Very much shades of everyone's favourite old Valenti quote - comparing video recorders to the Boston Strangler for the movie studios. No, no, he was wrong then but THIS time digital tv REALLY IS the boston strangler - tho he would never make such a quote now that might come back to haunt him...

 
More on the US P2P Vigilante Attack Bill
The Age has a story today on the bill (that would confer immunity on copyright owners who attack p2p networks where they have reasonable grounds for thinking their copyright files are being traded on it). Supports my gut reaction which is that (a) it is unlikely to be adopted at least in the short term, and, interestingly, that (b) the Business Software Alliance are not currently supporting it. Good to hear.

 
Spiderman and Advertising
Something we'll be seeing more and more disputes on, I would think: a federal judge has thrown out a claim by trade mark owners that filmakers who digitally "superimpose" different advertising on billboards on film of 'real life buildings' infringes rights of trade mark owners in the 'real' advertising. The claim came out of Spiderman - which billboards in Time Square.
Most strange argument (at least to Australian eyes) - that the filmmaker "trespassed" by using lasers to digitally film the buildings.
The practice had first amendment protection, the judge held.

 
Music Online
Finally, some action on the MP3 front by the record labels - to move beyond the disabled download services, by allowing more burning/transfer to portable devices. It may all be hot air at the moment, but boy, could these subscription services use a boost...

 
Spam Report - comments by 13 September
The budget-disabled National Office for the Information Economy has released its report on Spam. Table of contents is here.
guess what - spam is bad, and a growing problem.
guess what else - we need to develop a definition. The working definition adopted by NOIE is:
"unsolicited bulk electronic messages, usually electronic mail messages but increasingly SMS messages (text messages delivered to mobile phones), that are transmitted to a large number of recipients who have not requested those messages. They are usually - but not necessarily – commercial in nature; ie, they generally promote or sell products or services"
So should there be legislation? Well, the Draft Report has the earth-shattering recommendation that "The Government should consider anti-spam legislative options in further detail, consulting with all interested parties".
Now, spam is indeed a difficult problem, but I was hoping for something slightly more exciting.
essentially, the report reads like a "we'll just throw our hands up in the air and hope that some enforcement of existing law will work, and that someone will come up with the necessary technology..... That may be a little unfair. Realistically a lot of spam comes from overseas so any amount of legislation isn't going to really reduce the tidal waves of spam that have forced me away from my hotmail address. But if you were hoping for something new and innovative, this report isn't it.