"My TV is Playing with My Brain"
Here is a great story in the Wall Street Journal (don't worry, it appears to be one of the free ones; link from SciTech Daily Review (the sciency version of the wonderful Arts & Letters Daily). It's all about how TiVo, the personal digital video recorder, can play with your brain. TiVo records things that it "thinks you would like", based on what you have recorded in the past. I guess it works a bit like Amazon.com profiling does. And such profiling can be both (a) unnerving, and (b) very funny to play with. There's some great stories in the Wall St Journal story. eg:

"Mr. Iwanyk, 32 years old, first suspected that his TiVo thought he was gay, since it inexplicably kept recording programs with gay themes. A film studio executive in Los Angeles and the self-described "straightest guy on earth," he tried to tame TiVo's gay fixation by recording war movies and other "guy stuff."
"The problem was, I overcompensated," he says. "It started giving me documentaries on Joseph Goebbels and Adolf Eichmann. It stopped thinking I was gay and decided I was a crazy guy reminiscing about the Third Reich."

Makes you wonder about more serious profiling though, doesn't it? And just goes to prove a point that the privacy theorists say all the time - people do react to being profiled, and they do modify behaviour if they think they may be watched or labelled.

 
Update - KaZaA
Ken Parish has a piece on the KaZaA case. Agree with Ken's views re ways of dealing with the enforcement issue - as I said, judgment could well make life tough - re travel, US income etc.
Update too - the Gutnick case was heard by the High Court in about mid May of this year. We are expecting judgment in the not-too-distant future.

 
Hippies in Cyberspace; Lessig, and the Greed Problem
I have to say that it's been torture to notice that IP has been a blogged on topic (ah, my world!) while all the time I've been marking corporate law exams.
But, I thought I'd take a breath, and post some comments on Quiggin's recent review of Lessig's book The Future of Ideas, and Ken Parish's long and fascinating post on cyberspace and intellectual property generally. If you're interested in these kinds of issues, you might also note a piece by Jon Zittrain of Harvard's Berkman Centre on Internet and Society

First, let's note that the problems of intellectual property, and its enforcement online, are really, really hard. The excessively long piece that Parish refers to, that I co-authored in the Boston University Journal of Science & Technology Law, was the product of a full semester's agonising over how to achieve a balance between information freedom and intellectual property in the internet context. And even after all that, I'm never sure if such can be achieved - at least by the law. Intellectual property is important; incentives are important - as Samuel Johnston once said, "no [one] but a blockhead ever wrote, except for money". (actually, hang on a minute - what am i doing now...). But no one ever made a blockbuster movie except for money, and very few ever made movies suitable for general release without at least expecting their investment back. Likewise for so many creative products - music, great literature, good art. I agree with Quiggin here, and Zittrain, and Parish too (and many, many others before them) - IP is necessary, it is at least to some extent just, and, not taken too far, it can achieve really important policy goals.

IP has got a real bum rap recently. We've seen plenty of newspaper articles about the evil overreaching copyright owners. We saw this during the Napster dispute all the time. We've also seen it over in the US with the Eldred case, a Constitutional challenge, in teh US Supreme Court, against laws that extended the copyright term to life of the author plus 70 years (a heckuva long time, you have to admit). Lessig's book, The Future of Ideas, as well as his earlier book, Code: The Law of Cyberspace, is in part a plea against the destruction of the "intellectual commons" by the mad 'propertization' of everything.

Part of the reason that we've had these problems? Is that no one has been balanced. Jane Ginsburg has recently pointed out (How Copyright Got a Bad Name for Itself, 26 Colum. J. L. & Arts 61 (2002) - not online), one basic problem is greed. One form of such greed is greed on the part of copyright owners wanting to prevent silly little things that don't affect their commercial interests but have considerable implications for personal freedom. Another form of greed, though, is the greed of those who won't, essentially, pay people for valuable intellectual output. The problem is overreaching, on both sides. overreaching copyright owners v dishonest users who won't pay when they know they should.

Parish notes that

"a property owner prima facie has every right to take all reasonable steps to safeguard her property ... Otherwise the notion of 'property' has no meaning."

Beware, Ken. Intellectual property is not like other property and we should try not to think of it purely in terms of preventing trespassing, and even preventing copying. So, for example, I don't agree with Parish's comment that

"in cyberspace, it necessarily involves the right to restrain others from making copies of your work."

In cyberspace, it must mean the right to restrain others from some making of copies, and the extent of the right is not absolute. Copyright has always had fair dealing (in the US, "fair use") rights that have allowed people to make copies where they can show certain justifications (basically, a good reason, like criticism and review, or like news reporting), and they can also show it doesn't have too severe an effect on your commercial interests. So, Napster wouldn't be fair dealing, right? Given your daughter's experience (and plenty of people I know), yes, there would seem to be a pretty serious effect on the market - arguably. But what about a site that copies an article, interspersed with commentary? Valid criticism and review, right? And yet in the Free Republic case (a US case) newspapers prevented a site that did exactly that - requiring, instead of the copying of text, links instead. Does a right to protect your 'property' - by preventing copying - make such cutting and pasting wiht commentary invalid? I don't think so, personally. This is why balance is important. Nor is this just a US issue - in The Panel case, a Full Federal Court decision that may end up going to the High Court, the court held that the Channel 10 show, "The Panel", had breached copyright by some of its uses of clips from other television stations. The problem? It wasn't criticism/review, because there was not enough critical analysis, and it wasn't "the reporting of news", because really, it was entertainment.

The law can't fix this entirely. The law cannot anticipate every problem and most people when faced with a 'cease and desist' letter won't fight it. Or if they fight it, it's underground. By continuing to copy and not feel bad about it given the nasty tactics of those big bad copyright owners. Copyright owners have recognised the problem in part, with their recognition of the need for 'education' of users as to the need for IP law. It's possible, however, that they need to recognise that part of winning this particular battle is about making sure people want to pay. By not exploiting their artists to the extent that the artists complain, for example. By not threatening small bit players with the wrath of hades. By not shutting down fan sites of 10 year olds on a claim of trade mark infringement. It's a hearts and minds battle, people!

 
Update on Rawls
London Times obituary here. More below in my previous entry.

 
Kazaa events
Kazaa is currently being sued in the US for copyright infringement. KaZaA some time ago was sold to an Australian company, Sharman, and so the question came up - could Sharman be sued in US Courts?
The hearing on this jurisdictional question was in the courts in the US on Monday. There is an article in the Australian today (and thanks to Ian Oi of Blake Dawson Waldron Sydney for pointing it out to me).
No decision yet, but the judge did apparently say that he "would be inclined to find there's jurisdiction against Sharman".
UPDATE: colleague Michael Handler has quite rightly pointed out the errors in the above - Sharman is incorporated in Vanuatu but is run by people out of Sydney. Love to see them enforce in Vanuatu. Moreover, even if there was jurisdiction taken by the US court over NSW parties, as Handler points out, you'd still have to convince a court here to enforce it here - chances of that being, well, somewhat slim. Still of course could make life tough for certain people if jurisdiction was taken and judgment entered. and it is an interesting issue.

 
Orwell parody
The NY Times is reporting that an American novelist has written a parody of "Animal Farm", Orwell's 1945 classic about the evils of communism, in which Snowball (the exiled pig) returns to the farm and sets up a capitalist state - leading to misery for all the animals. The Book is called "Snowball's Chance", and the author is John Reed. Apparently Orwell's estate is not happy. And apparently there is an "apocalyptic ending" which the Orwell estate ain't happy about.
An IP infringement?
We could have a Gone with the Wind/Wind Done Gone argument here. Alice Randall in that case wrote a novel which rewrote the stories of "Gone with the Wind" from the perspective of a mulatto on the Tara property. Again, the relevant estate sued and in that case, it did end up going to court in the US. Randall succeeded in overturning an injunction that prevented her publishing the book - on the ground of copyright infringement.
As in the Randall case, here Reed has chosen his target deliberately. According to the NYT, Reed post 9/11 decided that the world had a new form of evil to deal with - within American corporate capitalism, and in American arrogance in protecting its interests in the Middle East oil fields. To write against this, Reed choose the 'ultiamte expression of pro-capitalist ideology' - "Animal Farm", which "has inoculated generations of schoolchildren against the evils of communism" (quoting Reed's words).
Actually, from the NYT description, the parody sounds a bit crude and basic to me. As a capitalist 'state', the farm expands, takes over (woodland) territory, bombs beaver dams to free the flow of water (oil). Then the ecology is destroyed; there is overdevelopment; it becomes a giant theme park, and the woodland creatures attack the twin windmills. Yeah. real subtle. But not something Orwell's estate could stop.

 
Wow. John Rawls is dead.
Now there's the passing of a jurisprudential era, and of an amazingly deep, original, and influential thinker. Wow. I've been blown away by reading his material. Nussbaum described him just recently as "the most distinguished moral and political philosopher of our age".
A story of his passing in Harvard University Gazette and the New York Times. Recent profiles on Rawls (who was 81 at his death) can be found in the The Wilson Quarterly (Berkowitz), and UPI, as well as the Nussbaum piece.

 
My first Sydney Morning Herald appearance!
I've just made my first appearance in the Sydney Morning Herald - here.
It's about a seminar happening here at the University of Sydney next week on Database Protection (more information about the seminar at www.ipria.org).

 
Disturbing new terrorism law
Ah, ain't it always the way - civil liberties bulldozed in the interests of the 'war on terror'. Parish has a piece on the NSW legislation - the Terrorism (Police Powers) Bill 2002, here. Notably, from a quick skimming, it is not limited to terrorism but certain of teh powers to be granted to police extend to getting evidence for "serious indictable offences". all the usual suspects - searches without warrants, and even on the authorisation - not of a court, nor even a Minister, but any senior police officer above the rank of superintendant. Carr of course is claiming it's all legitimate and warranted. But the legislation is definitely disturbingly vague - according to an article in the SMH:

The police minister Michael Costa said in a terrorist incident involving a large van, such as the Oklahoma bombing, police would have the power to search all large vans without a warrant.
"If that's the information that has been received - that a large van is likely to be used on a particular terrorist attack- they could for a period of seven days before or 48 hours after the event have those powers of search."

My comment with all these forms of legislation, supposed to respond to an imminent threat or situation (apart from all the obvious civil liberties issues addressed by Ken Parish on his blog) is - why isn't there a sunset clause - ie why isn't the legislation expressed to be valid only for a limited time - thus requiring the legislation to renew the legislation - if deemed warranted - after some reasonable period. It's notable that in cases of controversial legislation, Australian governments have taken to putting in requirements that the legislation be "reviewed" (in this case after 12 months - see clause 36). But that won't prevent the law still being on the books, will it?

 
Blogging on Blogging on Blogging.... and then on to the issue of trust online

There's been a bit of a debate in the aussie blogs over the last couple of weeks on - "bloggers as public intellectuals" - triggered mainly, I think, by the number of little snippets in the media we've had lately - Radio National feature spots, etc.

I posted my own view (on 17 November) - in summary - that blogging is one outlet but seems to reach a limited audience as far as I can tell (although I'm constantly surprised by the people who mention to me - usually in person - that 'I read your blog and....'; Sauer-Thompson here, Ken Parish here.

I just wanted to note that the Yale Law School (and yes, I am an alumni, but that's not the reason I'm mentioning it) just had a conference on blogging - called "Revenge of the Blogs". I suspect this event occurred is chiefly through the efforts there of people like Ernie Miller - the force and energy behind Lawmeme, a great site that collects stuff on law and technology. People interested in this debate might find some of the posts on conference sessions interesting - basically there's a whole lot by bloggers saying what they think is important about what they do.

I think the most interesting thing that comes from my reading of the discussions is the issue of trust - ie that you build trust by being there, by blogging "right", by being both interesting, and accurate. This strikes a chord - having had a bit of a hiatus recently when work took over my life, I know people noticed and I probably lost a few readers. I've been struck by the responses to my recent re-entry on the blogging scene - emails from a few people who have noticed have been much appreciated and highlight that sometimes, people actually notice what you are doing.

On this point of trust, it really is one of those themes that keeps coming back online isn't it? The question of how you build it, what you do to earn trust, and, obvioulsy, just how much work it is to build that trust. And trust, too, brings us back to questions that I've blogged on before - things like - anonymity online, and the effect of recent events on trust. The recent issues of terrorism (and gee, isn't that story in the Herald on Saturday (News Review) on "living with fear" interesting - and deeply disturbing in what it says about a society that has been touched by fear) highlight one thing for me that Helen Nissenbaum has discussed in a really interesting piece (note - pdf doct) on trust - that is, that people place undue emphasis on full identification as a basis for trust (btw - when searching for Nissenbaum's piece online I also came across this site that collects a few more pieces.)

Nissenbaum's argument is basically - identity is a false substitute for trust. The predicate of much public policy - about online issues, and also offline - in the wake of terrorism issues is that identity means trust - that is, if we can't be anonymous then we can be more trusting. Frankly, and following Nissenbaum of course, that must be a very limited and disturbing approach. The fact is that we can't trust people just because we can identify them. Trust comes from all sorts of things other than identity - knowledge over time, seeing things in context etc etc. So making everything identified and identifiable doesn't actually build trust or a true basis for trust. And it has the serious drawbacks of making people feel monitored, which is a serious interference with autonomy (see Julie Cohen's interesting writing on information and autonomy - "Information Rights and Intellectual Freedom" (pdf doct)).

 
Oh.....mean!!!!!
The best character assassination of Harry Potter on the web - here. (before you ask, I am a fan)

 
Ken Parish on Hippies in Cyberspace
Ken Parish has a really interesting post on intellectual property, the public domain etc (all this stuff that I'm generally obsessed with, really!). Ken - I promise I'll respond - when I've marked a few more of those corporate law papers!!

 
Parish on Public Education
Just had to make a quick comment on Parish's post on education and the Nelson plan. His "update 2" notes that I seem to support the Nelson plan (being a teacher of law, popular course, at a sandstone university). I should have 'spoken' more clearly I guess. My points would be thus:

We are already at a point where better students want to do their first, not just their second degrees overseas. And where many who have studied overseas would really love to be able to send kids overseas to study. Even in degrees such as where I teach, where the students are extremely bright, you see this effect.

I wouldnt' support a Nelson plan without a genuine, needs-based, and generous scholarship scheme. Otherwise you get inevitable problems of acces to education. I can't actually see the point of the present system where there are lots of merit-based, and less needs-based scholarships at some of the sandstones.

I'm equivocal on the whole thing right now - I haven't read enough to form a final view. What I was trying to express is just this - the current system is in decline. We are already, in many respects, second rate. Not in every respect. We do good law degrees. We do some great research. And we have great students and some wonderful academics. But I've studied overseas, and I've seen the difference.

finally - I really don't know how we go about fixing it. But it needs fixing.

- Kim, 1:32 PM. [Permalink]

 
Reconfiguring the Internet to make parts of it impossible to navigate anonymously.
Yes, this was a proposal considered - but apparently rejected, by the Pentagon. According to a NYT story,

"The Pentagon research agency that is exploring how to create a vast database of electronic transactions and analyze them for potential terrorist activity considered but rejected another surveillance idea: tagging Internet data with unique personal markers to make anonymous use of some parts of the Internet impossible."

Actually it sounds a lot like digital signatures to me. The plan was known as "eDNA", and it would mean a new version of the Internet, with enclaves where it would be impossible to be anonymous. So there would be "secure network highways", where a computer user would be identified, and private 'network alleyways' which would not require identification. The tendency, as we can all guess, would be for the identified bit to swallow up the non-identified bit - except for those, probably, who are either (a) privacy fanatics (as Alan Westin used to call them), or (b) criminals. For everyone else, if the information is even vaguely useful, not hard to collect, and if people can't be bothered routing around it (very common in this area where people don't tend to value privacy until it's gone), it will just latch on to the secure bit. I'm relieved to hear it's not being pursued. I don't want to feel I'm being monitored that way (I feel that enough already, given that I use a university server). Code as law, LessigReidenberg/ style, indeed.

More quoting:
A description of the eDNA proposal that was sent to the 18 workshop participants read in part: "We envisage that all network and client resources will maintain traces of user eDNA so that the user can be uniquely identified as having visited a Web site, having started a process or having sent a packet. This way, the resources and those who use them form a virtual `crime scene' that contains evidence about the identity of the users, much the same way as a real crime scene contains DNA traces of people."

 
So weird it must be real life.
Via that wonderful site, Arts & Letters Daily, I get a story from the Spectator about the arguments for and against war with iraq. This is totally off topic, but I was struck with the Rumsfeld interview on NPR where he replies to questions about pre-emptive strike on Iraq by hypothesising about a strike on the Man in the Moon. omigod. To quote

‘And of course,’ says Washington’s military hard man, ‘the advantage of not acting against the Moon would be that no one could say that you acted. They would say, “Isn’t that good? You didn’t do anything against the Moon.” The other side of the coin of not acting against the Moon in the event that the Moon posed a serious threat would be that you then suffered a serious loss and you’re sorry after that’s over.’

lord save us.

 
Doha and TRIPS and the Sydney Mini-Ministerial
The mystery remains. I've been trying to find out wehther anything interesting happened in the 'informal' mini-ministerial in Sydney, in relation to TRIPS, compulsory licenses and access to essential medicines.
Well, the EU press release just says:

The key issue on the agenda was the plan to allow compulsory licensing for essential medicines for poor countries with insufficient production capacities, to combat diseases such as AIDS/HIV, malaria or tuberculosis. Ministers’ views largely converged around the key issues of the product and disease coverage, eligible exporting countries, beneficiary importing countries and the necessary safeguard mechanisms to ensure that medicines reach the countries in need. Experts from all WTO members will now fine-tune the details of a proposal to be adopted by the WTO before the end for the year.

Very unhelpful. Now compare it to the Oxfam press release, which makes the following points:

no consensus was reached at the meeting;

developing countries resisted strong pressure to give up the fight on access to affordable drugs;

the EU proposal has been unravelling at home, with the French, Belgian, Dutch and EU Parliaments supporting proposals favoured by many developing countries.

The Oxfam release also makes the point that the developed country proposal of adjustments to the compulsory licensing regime has a key weakness - that the company supplying cheap generic copies of drugs would need to ask its own government to override the relevant patent before any export - in addition to the fact that the importing country would have to have a license. Oxfam puts it thus:

"An insurmountable barrier to getting cheaper medicines would be replaced by numerous lower ones."

 
weird creepy story of the day
Being interested in technology and law issues tends to mean you hear of weird little stories, that are just, well, disturbing. I try to bring these quirky stories to my readers (are you out there? anyone?).
So - weird story of the day: backing up your life on DVD.
Got this off Slashdot.
There is a story in the New Scientist about the fact that Engineers at Microsoft are working on the MyLifeBits project. It aims to build multimedia databases that crhonical people's life events and make them searchable. The story quotes one of the developers as saying:

"Imagine being able to run a Google-like search on your life"

aaaarrrrgggghhhh. What a truly horrible thought!!! Imagine someone else being able to run a Google-like search on your life. Bad enough that they can do that on Google as it is. The motivation, they argue, is that our memories deceive us; so it could solve the 'shoebox problem'. The database could have everything - passport, all letters, photos, videos, work documents; email; anything you read or buy online; you could even record phone conversations and meetings as audio files. You could even put spoken annotations on. Another quote:

"Users will eventually be able to keep every document they read, every picture they view, all the audio they hear and a good portion of what they see."

All I can say is - I do not like this thought at all.

 
A couple of corrections/housekeeping
Quiggin quite rightly points out that I've unduly suggested he that he has been commenting on his own mention by Margo. Thanks John, I was quite wrong to so suggest. It was in fact Ken Parish who noted your mention.
humble apologies also to Scott Wickstein for my negligent failure to update my links. it's done now!

 
Copyright Update: The UK has announced that it will be delaying copyright amendment until next year.
As blogged below, the European Community Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society entered into force on 22 June 20011. Article 13 requires the Directive to be transposed into the national laws of EU Member States before 22 December 2002. The UK have announced that they are going to miss that deadline: according to the UK Patent Office:

the sheer volume of replies, together with the fact that many present detailed arguments and suggestions for alternative drafting, mean that the present analysis will not be completed quickly. A full and proper consideration of all the responses is our principal concern, and the natural consequence of this is that the deadline set by the Directive for implementation is no longer attainable. This is regrettable but also, we feel, unavoidable given the technical complexity of many of the issues involved and the degree of importance attached by certain respondents to some of the proposed changes to UK copyright law (the Copyright, Designs and Patents Act 1988 as amended).

While we now see no prospect of meeting the Directive’s transposition date of 22 December 2002, we do remain committed to the earliest possible implementation of this important Directive. We will endeavour to implement the Directive by 31 March 2003 at the very latest.

 
And today I'm thinking about ... copyright
Actually, I'm spending a lot of time thinking about corporate law as I mark student final examinations. But enough of my boring life.
There's a few interesting tit-bits I've picked up when doing my daily news-trawl on IP this morning.
First, there is the Posner speech. Richard Posner, law-&-economics dude and right wing conservative has come out, in a lecture organized by the American Enterprise Institute (conservative right wing) and the Brookings Institution (conservative right wing) criticising the endless expansion of copyright. In particular, he's criticised term extension over in the states. But his comments are more general: to quote Declan McCullagh's article in the New York Times (reg.req.):

"These rights keep expanding without any solid information about why they're socially beneficial," Posner said. "At the same time that regulations are diminishing, intellectual-property rights are blossoming--(two) opposite trends bucking each other."

Does this mean the political tide is shifting? Perhaps it does mean that we can't assume that copyright will just keep expanding forever, fueled by a push from concentrated and organised pro-copyright lobbyists. Yes, there is a limit. But then, the right have always been a bit torn over the pro-property but anti-monopoly tension that comes to a head when talking ip. it's a conflict, captured nicely in Posner's quote above.

I'm not at all convinced by Declan's claim (in the NYTimes article) that the fact that Boucher (dem) has introduced yet another copyright-restricting bill into Congress means that the political wind is shifting. Boucher's been doing this kind of thing for years - a bit of a lone voice in the wilderness. What would convince me is if more of the politicians - in Congress over in the US, or here in Australia in Parliament, came out and said there are problems. Declan's more expanded argument, in an October perspective in CNet, is more convincing because it demonstrates the extent to which the law has become unbalanced - with stronger and stronger criminal penalties for copyright infringement. Such penalties go way beyond what most people out there in the 'real world' think is reasonable for infringing copyright. And that's a problem, because law that goes so far beyond what most people accept as reasonable inevitably loses people's respect - and compliance. So should copyright owners go on an education drive so that people "catch up with the law"? I don't think so. I had a discussion the other day with a journalist who argued that copyright owners were generating problems for themselves by pushing copyright law so much - that as people became more aware of copyright law, and the extent to which it limits what they can do with cultural works, then people will become more worked up about preventing copyright's reach from expanding. He's got a point. Better option - scale back copyright law so it better matches what people think is reasonable. I agree with my journalist friend - a lot of people do want to support movie makers and recording artists - not to the nth degree but enough.

And don't think that copyright owners won't push back - we've just had another plea from the movie industry (which is now starting to experience what hte music industry experienced some time ago) - yes, that's right, George Lucas has come out with another statement saying - please stop pirating, it will destroy our movie rainforest ecosystem". It goes to show that, once again, you can't actually assume at any stage that this debate is going to go away - even when legislation is achieved. Hold on to your hats, we may get some debate over here if the government makes it's mandatory Digital Agenda review a real one.

(Note - Posner also said something about business method patents that we've all thought for a while - that the growth of patent is in part owing to the existence in the US of a specialized patent court: "A specialized court tends to see itself as a booster of its speciality," Posner said. "Patents are clogging retail commerce on the Internet, and software (patents) in particular are apparently impediments to software development."

Next, there is a bit of a debate over in the UK happening on fair use/dealing and other exceptions. The Register has a bit of a collected debate on this with more links. This has come up because in the UK, legislation implementing the EU Copyright and the Information Society directive has been open for comment (the comment period ended in at the end of October). The European Community Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society ("the Directive") entered into force on 22 June 20011. Article 13 requires the Directive to be transposed into the national laws of EU Member States before 22 December 2002 This is the directive that has DMCA/Digital Agenda type stuff in it. Just as has happened elsewhere, this gets people talking about whether copyright owners' ability to restrict "access" to works is "obscene".

 
Copyright idiocy
Some big retailers who should know better (or perhaps they do but are just trying it on) have just used US Copyright Law (the DMCA) to force a bargain shoppers' website, FatWallet, to remove sales price lists. According to Wired:

Scooping sales circulars by several days, the postings, apparently from site users who had access to proprietary sales information, included lists of products, along with reduced prices, that will go on sale Nov. 29 -- the day known as "Black Friday" for U.S. retailers because it kicks off the holiday buying season.

Walmart however think it's all copyrightable - because it is a "compilation of prices" and therefore "is very much copyrightable." grrrrrrrrrrrrrrr. And people thought they were kidding when they said - copyright on compilations can mean copyright on facts.

 
To see the effect of trademark law - go to this site.
"THE NEW YORK OPERA COMPANY THAT THIS WEBSITE HONORED HAS DEMANDED THAT THE SITE BE SHUT DOWN. WE HAVE RELUCTANTLY COMPLIED"
Lessig's blog documents a recent travesty of trademark law. This used to be a site that collected lists of Met opera performances from the beginning of the Met. It was non commercial. A fan's site. One can't help but wonder why, oh why, the Met would attack a fan that way. There ought to be a law against it..... !

 
The Music Labels start to work it out
The Australian reports on the freeing up of subscription downloads so that people can do more than just listen to them, on their computer, via streaming, for so long as they keep paying the fees.
Bout time they started to 'get it'.

 
And in other news - the first copy-proof CD has reached Australian shores.
It is Robbie Williams' "Escapology.
See The Australian's story.
UPDATE: The ACCC has issued a media release on these copy-protected CDs. The ACCC's view is:

"The ACCC welcomes this initiative as a legitimate method of preventing music piracy ... We are concerned, however, to ensure that consumers are fully apprised of any technical restrictions on the use of these discs before they pay for them."

So it's simple. Just put a big, nasty sticker on your CD that says "BEWARE - all the things you thought you could do with this CD? Well, forget it". Ah, that's a bit flippant, isn't it. It's really just a continuation of the technology wars...

 
Use the web, reach hundreds of millions...
The Sydney Morning Herald Reports:
The global number of Internet users is expected to reach 655 million by the end of this year compared to 500 million at the end of last year, according to estimates in a report released by the United Nations Conference on Trade and Development (UNCTAD) yesterday.
Asia apparently added another 21 million in 2001. And developing countries accounted for nearly a third of new Internet users worldwide last year. ECommerce, for pretty obvious reasons, is concentrated in the West (well, dur): The United States has just under 45 per cent of the world share in e-commerce revenues, while western Europe has just under 25 per cent and Japan just under 15 per cent.

 
More on Eldred - and why is it technology companies' job to protect copyright?
Lawmeme reports that Thomas F. Holt Jr has written a op-ed piece in the Boston Globe - "Conflict over Copyright Extension will only deepen"
Notably, the piece concludes that it is indeed, computer companies' job to protect copyright - or, in his parlance, to prevent technology being the "getaway car":

In the end, it will be up to technology companies to seriously consider ways to prevent their equipment from being the getaway car in the theft of creative works, be it motion pictures or music. It won't be easy, but America's technology leaders are up to the task

Surely it's copyright owners' job - or perhaps the better way to think of it is as a situation of 'mutual obligation'. Certainly, both Australian legislation, and Australian case-law, are actually pretty equivocal on the whole issue.

 
Now they just fax the search warrants...
Search warrants are supposed to have all kinds of checks and balances, right? Like - a judge looks at them; then on execution of the warrant there are checks and balances like police being present; the opportunity to get legal advice, etc....
Apparently not. Greplaw are reporting that:

The 8th Circuit ruled yesterday that police did not have to be present to serve a Warrant on Yahoo. In a kiddie porn investigation police had faxed a search warrant to Yahoo asking for copies of the defendant's emails.

Yahoo apparently complied. Maybe it's just me, that that just seems far too easy.
Court opinion available here.

 
Here's a comment I thought I'd never see
Robert Manne in today's SMH opines that "Higher education will be one of the great political issues of 2003". Personally, I doubt it. Telstra, the drought, the economy; free trade with the US (if this ever truly gets off the ground), and health are surely likely to be bigger issues of 2003. Universities are simply not a priority and have not been for some time.
Mind you, there could be some really interesting debates about funding. As someone who teaches in a course that is very much in demand (Law at the University of Sydney), we'd likely be at the front end of any moves towards fees. Universities already depend on fees to a significant extent (whether from postgrad offerings, or full fee undergraduates).
I quote:

The Nelson reform also seems likely to accelerate the movement towards a new kind of hierarchy in Australian higher education, between an Australian version of the Ivy League, fashioned from the Group of Eight, and a minor league, made up of all the rest, drifting towards an approximation of US state colleges.
In the new dispensation, "the rest" could be dominated by undergraduate teaching; less and less able to conduct or supervise cutting edge research; less and less able to attract the most promising young scientists or scholars to their staffs, and increasingly dedicated to teaching courses which train students for participation in the information economy.

Frankly, we're already heading towards that situation but on an international scale. That is, Australian universities are currently acting more like the US state colleges. It is the overseas universities which are attracting the better scientists and scholars from Australia. The Australian universities are already dominated by teaching, and to teaching courses that train students for participation in the information economy. Law, for example, is a very practice-oriented degree. I don't pretend to know all the answers (although more fees with better scholarship programs and loan forgiveness schemes for those heading into lower-paid jobs might be a start), but we shouldn't kid ourselves that Australia can play with the big boys of the education market as things currently are.

 
No rational person
Would work in the British higher education system, according to Alan Ryan (reported in this article I picked up via Jason Soon's blog).
No rational person would work in the Australian higher education system either.

 
The debate - are bloggers public intellectuals?
Ok, this is only very vaguely related to IP law - but hey, I'm into IT law and that shades into free speech and 'web community' type issues. Margo Kingston's been making comments, and Greg Sauer-Thompson has a long piece on it; Ken Parish notes his own appearance in Margo's Radio National thing, as did John Quiggin of course.
First point: surely, only a limited number of blogs can lay any claim to such 'intellectualism' at all. When this kind of debate gets started, it's notable that we're ignoring a helluva lot of blogs out there - many of which are totally uninteresting rantings by people who really should be out enjoying the beach or something.
Second point: I agree that blogs by people like Quiggin and Parish, and many others in the Australian blogsphere, are contributing some really interesting stuff out there. And no doubt there is a whole group of people who do read this stuff. But it is a limited group still. Not that that's a problem - hey, no one ever said that the whole of the community had to be fully engaged in politics and public debate all the time. Different ways of engaging for different people, right? Blogging ain't the answer. It's specialist. Good for some not for others.
Third, are the public intellectuals missing? As someone working at a university, I know that people angst about this all the time. Should academics be out there commenting more? Probably. But there's a bit of a strange relationship between the media and the academy. Much of the time they don't seem to understand each other that much. There's definitely a debate that goes on, too, whenever someone comments "outside their field of specialisation". Sometimes it seems like the only ones "allowed" to do that are the journalists (well acknowledged all-rounders).
Dunlop's comments on "intellectual practice put the onus on academics to educate for citizenship, but don't answer the question - should we be out there, pushing ourselves or our agendas or our views more? I guess the beginning of an answer is that for some, that's exactly what they like doing. For others, intellectual practice is different - more introverted or specialist or whatever. The good thing is there are plenty of opinionated people in the universities, and many of them are great at not shutting up.
Thank god for loud-mouths.

 
weird censorship: Malkovitch and the chicken

Weird freedom of speech story for the day: John Malkovitch's first film as a director, has the British censors in a bit of a tizzy. Apparently they want scenes cut showing a dog and a chicken with (fake) dynamite strapped to their legs walking into a crowd. The scenes are designed to show a real technique used by the group that is the subject of the film. Obviously, the animals aren't shown being blown up.

Notably, the censors complained about these scenes, but not the ones with children shown with (fake) dynamite strapped to them. The problem is that you can't show scenes with animals in distress. Apparently the chicken was not happy (did it get counselling afterwards?)

Now Malkovitch is upset (I would be too, if a chicken scene stopped a film that I took 7 years to make).

Not sure this decision makes much sense given what I see on the screen every time I go. I'm sure it probably means a lot of the Muppets would have to be cut, too.

 
Actually, on that WTO stuff...
Maybe it was just where I was, but the protests seemed pretty tame. Are we Australians simply too laid back to get worked up?
On a more ip-related note, one of the things the Ministers were supposed to be talking about was the rather important question of access to drugs, and the difficult question of what to do about the fact that so many are dying in so many parts of the world where there are drug treatments available.

This is of course, "ip-related" because, naturally, patents and in particular the patents of big pharma are a good target in terms of those looking for a quick fix for the problem. Patents are an issue here. TRIPS (the WTO agreement on IP) is an issue for the developing world - it imposes burdens with scarcely any perceptible benefit and in 2005, when the gloves come off and the generic industries of India etc become breaches of TRIPS there is going to be a huge access to drugs issue.

According to the Doha Declaration on TRIPS and Public Health, the problems in TRIPS were supposed to be addressed in a report by the end of this year. Haven't heard anything out of the Thurs/Fri meeting yet though.... I wonder what's happening.

And speaking of free trade and IP, there have been a few suggestions that the US and Australia will negotiate on a free trade agreement. good luck! It is going to be very interesting seeing whether Australia ends up making all the concessions.

Scott Wickstein has a piece today on how our quarantine requirements are a barrier to free trade. Which they are. Just like the massive agricultural subsidies in the EU and US. And any number of other barriers around the world. Practice what you preach is one thing. Open up entirely without getting real opening up of other markets is quite another. Am I wrong in thinking that Australia has been busily leading the charge in terms of opening up its markets for the most part? Should we really be opening up the last few barriers (and ones which can be justified on environmental grounds) before the US/EU get rid of their rather significnt barriers?

 
Great Quote of the Day
I wouldn't be the first to note that some graffiti is just great. With a few trade ministers meeting in Sydney last week about matters-WTO-related, I just loved the graffiti I noticed on Sydney's broadway as I headed out to the inner west:

CAPITALISM IS BORING

Quick, call in the PR people...

 
What I'm reading now: Information Feudalism by Drahos and Braithwaite.
have just purchased Peter Drahos' and John Braithwaite's new book, "Information Feudalism: Who Owns the Knowledge Economy?". I looked forward with considerable excitement to reading this new venture. I enjoyed Drahos' 1996 book, "A Philosophy of Intellectual Property", and I also enjoyed the even more dense and impressive "Global Business Regulation". These two rather prolific scholars have produced some remarkable work.
It took me a moment, I must confess, to get past some of the crimes against the English language. "Biogopolies", "Infogopolies". God forbid such terms should ever take off. This is also probably the only place where you will ever see "visionary" and Jack Valenti's name linked outside, perhaps, a Hollywood Industry love-in (page 195) (of course, I don't think Drahos & Braithwaite are using the term in a particularly complimentary sense).
But travesties of language aside, the real question is - what should we think of the book itself?
Before I launch into some comments, I want to make clear - I haven't studied the book in detail. Rather, I skimmed some bits, and and read others in more detail. It is a testament to the clarity of the work, if not a testament to my conscientiousness, that I was able to do so.

Summary
politics, history, and law in one. As Jessica Litman has been to the US Legislative History of Copyright, so Drahos and Braithwaite are to the Global History of International Intellectual Property Law. All the insider stories on how TRIPS came to be; who lobbied who, and how, and when, are in this book. All the stuff you suspected, and read in various places, in disjointed form - collected and collated into a damn good story. This book is also a key new resource for the anti-TRIPS movement. To quote the book:

"[TRIPS] is a matter of complex injustice. It pulled off a huge structural shift in the world economy to move monopoly profits from the information-poor to the information-rich. As we go deeper into an information economy, the implications of this for widening inequality in the world system, even within the US and Europe, will become more profound. There will be a digital divide, an access-to-drugs divide, and a divide between those who avoid taxes by shifting intellectual property rights around the world system and those who simply pay them."

This is indeed timely, as in Sydney over the last couple of days, the TRIPS and access-to-drugs issue arising from the Doha Declaration on TRIPS and Public Health has been a top agenda item at the mini-meeting of Trade Ministers that has met to consider TRIPS/WTO issues (and provoked some very minor protest).

This Book is History
One of the useful aspects of Global Business Regulation was that it collated stories about so much of what we already knew. It collated the actors, the events, and the rules that together make up "globalisation" of business regulation, and the global 'aspect' of business regulation.
Information Feudalism does a similar thing in the IP field. It is a considerably shorter book (219 pages, not including notes). Like the earlier book, it collects details of stories that are illustrative of a broader IP agenda that, frankly, it has been hard to ignore in recent times: that TRIPS has globalised strong IP rights that were not present in many countries prior to the agreement being reached; that there seems to be a puzzle as to why so many countries did agree to TRIPS given that the advantages from stronger IP seem to flow, chiefly, to the US and to a lesser extent, to Europe. That the problems this has caused are illustrated from events as diverse as the AIDS (and access to drugs) crisis in the US to the privatisation of grain genuses via patent law.
At a higher level of abstraction, a contribution of the book is to draw together themes that those involved in the "IP world" (still a relatively small one, all things considered) would be aware of:
1. The argument that intellectual property represents a classic "public choice" problem - or, the argument that in essence, IP presents a problem in terms of law reform because capture of the legislature by powerful lobbyists for stronger IP rights is all too easy; and the parties affected by its limitations experience it as a build of accretions rather than in a blinding flash or a sudden throwing in to jail. This point has been noted, of course, in the masterly analysis of legislative history of Jessica Litman (Digital Copyright), and some of Yochai Benkler's work. As we have seen in this earlier domestic-focussed work, and as we see now in Drahos and Braithwaite's work on an international scale, all too often the parties who essentially draft the IP laws are the ones who stand to benefit from stronger laws.
2. The rise of the US IP academe as opponents to this expansion; and
3. The need for more coordinated action between opponents of strong IP - a la James Boyle, "An Environmentalism for the Net" (1997) Duke Law Journal; Drahos & Braithwaite p17.
In short, then, Information Feudalism "tell[s] the story of how [intellectual property] rules have been quietly redrawn, of a small number who were involved in the deals, a small number who resisted them and of the populations that have lost and will continue to do so". Like my brief comments blogged earlier today, and like Drahos' 1996 book, the effect of rhetoric by IP owners is a focus ("piracy").
In many respects, Drahos and Braithwaite's book reminds me of Litman's earlier work on the passing of the US IP legislation (in particular, copyright legislation). It provides all that background information, and background stories, that help the reader understand just how all this - truly counter-intuitive - development in the global law of intellectual property occurred. There is no shortage of stories to be told here; no shortage of ironies and hypocrisies to point out. The headings show the focus of the book: "Getting on Committees"; "The Bilaterals"; "section 301" (US's institutionalised system of retaliation for perceived inadequate trade laws or in particular, IP protection); "Designers, Lobbyists and Petitioners"; "Agendas and Agenda-setters: The Multilateral Game"; "At the Negotiating Table". The book has some great stuff on just how the tools of change of intellectual property law have been used to increase protection. The internal levers and manipulations are all illustrated (in particular, the role of the US Trade Representative in various bilateral negotiations with 'delinquent' countries). The authors have performed a really valuable service in pulling this material together. It also makes fascinating reading, because it has tension, it has characters, it has villians and it has duped innocents.

The Shift from Chapter 10 on: changes to IP laws and their effects
There is, of course, also no shortage of dramatic effects to point to. Students who can't afford textbooks; the ill who cannot afford drugs; scientists who can't produce the drugs because patents stand in the way of the research. Chapter 10 onwards shift focus to - what did all this lobbying achieve, and what are its implications. Here, too, law is not the only, or even the key focus. Rather, the structure of the economy furthered by IP rights dominate the picture. So, for example, there is considerable detail about the state of the pharmaceutical industry in the US. (be ready for the extensive use of the term "cartel". Similarly, the software and music industries are considered.

And then there's the theoretical and policy implications: Chapters 12-14.
Make no mistake. Some of the suggestions in this book are radical - though radical suggestions are a feature of much of the intellectual property academic writing of recent times. But radical the suggestions indeed are:
- a veto coalition of developing countries in particular to push for Trade Negotiations standstill until there is rollback of TRIPS provisions;
- the need for more explicit constraint on intellectual property rights by hyman rightsobligations. IN short, they say, "Human rights law must be claritifed and made more explicit in its application, to ensure that it precludes actions by intellectual property offices leaving indigenous people as trespassers on their own culture."
- encouraging some individuals to work in institutional settings that reward them, but allow the expression of their creative endeavours to remain a public good.

The suggestions reflect a central thesis in the book: that what we need is real (rather than pretend) democratisation of intellectual property rights. That means real deliberation and participation on the form of such rights from all interests in society - not just the usual suspects.
WIth considerable relief, I also note the bald, and bold statements in chapter 14 about the impact of intellectual property rights:
There are few if any domains of creativity where intellectual property rights are the main reason for inventiveness. ... It is the institution of the university itself that has been the greatest fount of innovation, not the intellectual property laws systematized in its faculties of law. In the vast sweep of the history of human creativyt the impact of intellectual property rights has been negligible because for most of that history those rights have not existed and, where they have, for the most part they have been poorly designed and even more poorly enforced. It is only with TRIPS that states have begun to systematically criminalize the infringement of intellectual property. ... People are to a large eextent naturally disposed to create. Intellectual property is not irrelevant to the reward of creative work, but it is ... not the most significant means that a society has for supporting and rewarding such work."

I feel a sigh of relief even in just reading that paragraph. Drahos shows his passion for the issue here. Drahos and Braithwaite's point here is an obvious one: the three most consequentail scientific transformations since WWI were products of public investment in scientific talent in universities. John Howard, take note.

some final thoughts
The book (or at least my totally inadequate skimming of the book) has made me think about something. One of the points that recurs through the book is the importance of academe and NGOs, especially in the US as well as the developing world, in having an impact on the form of intellectual property rights. I'm wondering what people think, however - do we have the same push here in Australia? My sense of the "Copyright World" in Sydney is that much of it is very pro-IP. I'm trying to think whether someone is acting as a kind of 'lightening rod' for anti-ip sentiments in the same kind of way. The NGOs just don't seem to be playing the same kind of role here in Oz as elsewhere. Perhaps people will differ with me here. Perhaps, also, I'm too focussed on the "Sydney IP world". Quite possibly that is true, now I come to think about it. And it would also be true that in Australia, unlike in some other places, we seem to get a bit of an anti-IP push coming from within Government departments (like in the CLRC report on Copyright and Contract, which pushes for limits on copyright-related contracts.). Maybe NGOs aren't quite such a focus here because we have more balance being pushed by government (contrary to the US Experience). Any thoughts, anyone?

 
Stand by for the "war on fun"
Surely that's the only response to a comment by the movie industry to a Melbourne audience. According to McCallum, Star Wars producer, the drive to protect movie copyright needed to be "as concentrated an international event as the war on terrorism".
This kind of rhetoric does the movie industry no good at all. Frankly, no one thinks that the issue of movie piracy is as serious as world wide terrorism.
Although perhas the link is more apt than McCallum would like. Like the so-called "war on terrorism", the problem addressed is a real one. But like the war on terrorism, there are a lot of people who are not part of the movie studio industry who think that some of the methods used in the "war" are not legitimate. And smack, at times, of US imperialistic approaches.
It goes down with some other remarkably inapt quotes that have, at times, come back to bite their makers, such as:
"You have zero privacy anyway. Get over it" (Sun Microsystems CEO)
"The VCR is to the movie industry as the Boston Strangler is to the woman alone".
Frankly, I'm sick enough of comments about music "piracy" and copyright "theft" (inaccurate at the best of times) - let alone the "war on [fill in the blank]".
grrr.