tag:blogger.com,1999:blog-41352232011-12-14T18:51:00.172-08:00A Copyfighter's MusingsDerek Slater's weblog. A place to discuss current copyright/internet law issues. This blog will mostly focus on questions I have about the future of copyright with respect to the Internet and digital media. My posts will generally point towards one question: "what is the best possible policy for copyright in the digital age?" I don't know the answer, but, I hope writing this blog (and hearing from anyone who happens to read it) will help me figure it out.Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comBlogger431100tag:blogger.com,1999:blog-4135223.post-890084612003-02-12T18:37:00.000-08:002003-02-12T19:19:39.000-08:00Moving Day!
A Copyfighter's Musings has moved to: http://blogs.law.harvard.edu/cmusings
Why did I move to the blogs-at-harvard site? A couple of reasons:
1. To support the project.2. Because this Manilla is way better than blogger. I hope to put the categories and stories feature to good use eventually. 3. My own RSS feed! (thanks to voidstar for the initial one)
So, please change your Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-889991742003-02-12T15:27:00.000-08:002003-02-12T15:38:01.000-08:00Unique, But Not Alone
It's important to remember that the blogs@harvard initiative is unique, but not alone. Sarah Lohnes, an educational technologist at Middlebury's Center for Educational Technology, was nice enough to remind me of that today. She noted that the Center administers a server for educators and technologists interested in weblogs. And, like any good blogger, she sent me some Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-889764352003-02-12T07:38:00.000-08:002003-02-12T09:08:19.000-08:00More on Dave's Live Session
Frank Field has posted even more thoughts. He makes a good point about "shoehorning" the competitive aspects of undergrad work (grades and such) with the collaborative aspects of blogging.
Certainly, the class I bring up below is an anomoly - it has no tests, and the response papers aren't graded. Most professors don't do it that way and, as Frank points out, Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-889550502003-02-11T20:44:00.000-08:002003-02-11T20:49:59.000-08:00On Dave's Live Session
Today's session with Dave Winer was a blast. I am grateful to everyone who came; it was really quite something. If you weren't there, Donna's got the outline - check it out.
So far, Frank Field's got the best response. After reading the last bit ("the weblog can help to foster the digital equivalent of the late-night dorm bullsh*t sessions where much of the true benefitDerekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-889290662003-02-11T12:16:00.000-08:002003-02-11T12:40:48.000-08:00More on "A Full, Fair, and Feasible Solution"
As I discussed below, Bennett Lincoff, "the former Director of Legal Affairs for New Media at ASCAP," passed a very interesting compulsory license proposal around the pho list. I've now had a chance to read it, and I'd like to build on previous suggestions and note what others' have said.
First, two key flaws:
1. Why does this plan just deal with Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-888842362003-02-10T17:36:00.000-08:002003-02-10T17:44:21.000-08:00Compulsory Licenses for P2P?
Found this on the pho list:
"A Full, Fair And Feasible Solution To The Dilemma of Online Music Licensing" by Bennett Lincoff, "the former Director of Legal Affairs for New Media at ASCAP, where he developed the organization's Internet license agreement that authorizes Internet performances of the copyrighted music in ASCAP's repertory."
Here's the basics:
"Congress Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-888805702003-02-10T16:26:00.000-08:002003-02-10T16:26:54.000-08:00We Blog in Packs ...
...and we get busy in packs, too.
With the arrival of Dave Winer, some interesting changes are afoot here at Harvard (and also here at this blog). News on that later, as well as your normal copyfighting content.Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-888557672003-02-10T08:15:00.000-08:002003-02-10T08:15:55.353-08:00Clearing Something Up
After having a brief exchange with Cory Doctorow about Palladium/TCPA, I decided to revise something that I'd written earlier about how the EFF has responded to those technologies. I don't think I was clear before, and I put the emphasis in what I'd written in the wrong place. Both the old and new versions are here.Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-888325932003-02-09T20:36:00.000-08:002003-02-10T08:48:00.000-08:00Should Copyright be About Copying?
The Brookings Institute has a new piece by Mark Nadel called "Questioning the Economic Justification for (and thus Constitutionality of) Copyright Law's Prohibition Against Unauthorized Copying: §106." I haven't gotten around to reading it, but I hope to post some comments on it in the future. It looks to have some interesting bits. While focusing mostly on Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-887146382003-02-07T09:33:00.000-08:002003-02-07T11:38:26.000-08:00Responses to Valenti
When I first wrote my brief commentary on the interview, I was just trying to cover the basics. Thanks to the blogosphere, I can now post these responses, which flesh out some important issues. I am grateful to all of you who have read the article and especially to those of you who have taken time to write about it. It’s been great fun for me.
So, here’s what I’ve Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-886899562003-02-06T21:22:00.000-08:002003-02-07T07:48:11.000-08:00Cluetrain Thesis 95: "We are waking up and linking to each other. We are watching. But we are not waiting."
Berkman Center Executive Director John Palfrey mentioned the new Harvard blogs initiative at his blog today. It got a nice mention at the Washington Post, too.
John says:
"We're convinced that blogging, evangelized by Dave [Winer] and others here, can help spread the wealth of knowledge Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-886760502003-02-06T16:17:00.000-08:002003-02-06T16:17:32.633-08:00More on Professor Fisher's Plan
Just in case you haven't seen it, there are two recordings of Fisher talking about his plan: one at the Center for Internet and Society at Stanford, and another from the Future of Music Coalition conference. I hope to listen and comment on these soon.Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-886508852003-02-06T07:20:00.000-08:002003-02-06T07:25:06.000-08:00Circumvention and Affirmative Fair Use
Is being able to circumvent DRM enough to protect fair use? How many people need to be able to circumvent easily for fair use to be protected? 50%? 90%? 100%?
The Boucher and Lofgren bills bills have some affirmative fair use rights and a right to circumvent. And, I wonder, is a right to circumvent enough to protect fair use? If most people can't Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-886166992003-02-05T15:47:00.000-08:002003-02-05T15:47:33.800-08:00More Valenti
So, the article has been Slashdotted. (How bizarre!)
Given that I'm now getting letters from people about the article (and I thank all of you again for doing so), I'd like to just mention that I would love to hear from anyone who's got comments or wants to make their own rebuttals to Valenti's arguments. I know my arguments are a little deficient in some places (I don't know Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-885965272003-02-05T08:42:00.000-08:002003-02-05T08:52:08.000-08:00Protecting Fair Use By Reinventing Copyright (Part 2b in a Series)
Today I want to talk a little more about rhetoric in the context of P2P, and how that will be important to reinventing copyright.
There are now a couple of threads about how we should talk about copyright, particularly so that the public can understand their rights in copyright. Doc's got the latest here and I made some commentsDerekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-885631792003-02-04T17:42:00.000-08:002003-02-05T22:00:49.000-08:00I thought I was just speculating about biometrics and DRM
Then I read this (from Copyfight) and this. Put it all together.
(I know the swipe-card chair is just an art exhibit and I know it's not an example of digital rights management as we normally think of it with music and movies. But it's a solid exhibition of what sort of bizarre control is possible with new technology; it can be extended Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-885454412003-02-04T11:32:00.000-08:002003-02-04T11:32:20.190-08:00To be fair...
Here's an article called "Responses to the Copyright Crisis" - including micropayments, tips, and microrefunds - by EFF board member Brad Templeton.Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-885452422003-02-04T11:28:00.000-08:002003-02-04T15:56:30.000-08:00Who's not excited about Janis Ian?
Well, I guess I'm not.
Don't get me wrong: I think it's important that the artist's voice in this is heard, and I think people should know that the record companies don't necessarily act in artists' best interests. I applaud Ms. Ian's efforts.
I'm just not that excited by it.
I'm not sure how much artists like her add to the debate any more. It doesn't push Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-884954602003-02-03T14:41:00.000-08:002003-02-04T21:03:11.000-08:00An Interview with Jack Valenti
In December, I had the pleasure of interviewing MPAA President Jack Valenti for the Harvard Political Review. A simple registration is required to view the interview.
I've written some brief comments and reactions to go along with the most interesting bits (interview indented, in red):
"Jack Valenti: I wasn't opposed to the VCR. The MPAA tried to establish by lawDerekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-884940292003-02-03T14:11:00.000-08:002003-02-03T15:34:24.000-08:00Quick Links
Formerly of Public Knowledge, John Mitchell has struck out on his own, and, today, published this piece: Automated Antitrust Violations. When I interviewed John for my Eldred article, John focused a lot on the lack of copyright power in "private performance" and how DRM can change that.
I've wondered about how biometrics could someday factor into that. Imagine a TV screen with Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-883319242003-01-31T08:17:00.000-08:002003-01-31T08:18:55.000-08:00More on Balkin, DMCA, and Eldred
Earlier, I questioned one of Professor Balkin's Eldred+DMCA=unconstitutional arguments. Though I still think I'm technically right about what I said, I think I see what Professor Balkin might have meant (but didn't say explicitly).
The key is not the anti-circumvention provision that I focused on - it's the anti-trafficking. If you can't distribute the device Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-882725552003-01-30T08:01:00.000-08:002003-01-30T12:11:21.000-08:00Protecting Fair Use By Reinventing Copyright (Part 2a in a series)
Let's get down to business with Professor Fisher's plan. I can't get to everything in one installment, because there's going to be a lot to say.
Let me start with my intuitive responses:
How will this ever become this country's policy? Fisher's plan, while much better than the policy I discussed before, is much less politicallyDerekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-882703202003-01-30T07:16:00.000-08:002003-01-30T07:16:49.000-08:00I'm Still Trying to Figure This Out
In my update below, I posted this statement by Judge Patel, the judge who ruled on Napster; it's from when she urged a DoJ investigation of MusicNet. I want to post this last sentence of it again, because I'm still trying to reckon with it:
"The doctrine [of copyright misuse] does not prevent plaintiffs from ultimately recovering for acts of infringement that Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-882298772003-01-29T14:13:00.000-08:002003-01-29T14:13:19.830-08:00Reporting From the Front
This statement has been posted all over Harvard's website, and in a huge ad in The Harvard Crimson:
"If you download or distribute movies, music, or other copyrighted materials from the Internet without the owner's permission, you are breaking the law. You are culpable even if the source of the material is a Web site that appears to be offering a legal and inexpensive Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-882295352003-01-29T14:07:00.000-08:002003-01-30T17:09:43.000-08:00Lemonade? Maybe.
Yale Professor Jack Balkin tries to explain how the DMCA could be contested because it enables unlimited copyright terms. Frankly, this seems much weaker than his previous post about attacking the DMCA using Eldred.
He writes, "However, the DMCA has no time limit. It makes it a crime to interfere with copyright management schemes even after the material protected passes into Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-881887442003-01-28T17:47:00.000-08:002003-01-28T19:56:03.000-08:00RSS Feed posted
Thanks to Voidstar RSSify, I've got an RSS feed - it's linked at the left column. Hope it works.Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-881823392003-01-28T15:35:00.000-08:002003-02-03T15:50:36.000-08:00If only my free time were defined by Congress and the Supreme Court...
...I could turn "limited free time" into "infinite free time" just by snapping my fingers.
Sadly, I can't - but I promise to get to this and this as part of my Series as soon as a I can.Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-881718252003-01-28T12:01:00.000-08:002003-01-29T08:48:33.000-08:00Statements on Copyright Misuse from MP3.com and Napster Court Rulings
UPDATED [7:51 PM], [11:45 AM, 1-29-03]
From the final decision in MP3.com:
"Defendant's *353 other affirmative defenses, such as copyright misuse, abandonment, unclean hands, and estoppel, are essentially frivolous and may be disposed of briefly. While defendant contends, under the rubric of copyright misuse, that plaintiffs Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-881676332003-01-28T10:34:00.000-08:002003-01-28T15:47:54.000-08:00More on Copyright Misuse (and fair use)
Awhile back, I came upon this journal article called "Exorcising the specter of a 'pay-per-use' society: toward preserving fair use and the public domain in the digital age". It's a very interesting article on the problems of strong DRM, and has some info on copyright misuse. Here's an interesting quote from it:
"“The major limitation of copyright Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-881668922003-01-28T10:18:00.000-08:002003-01-28T15:48:03.000-08:00KaZaA is arguing ... what?
News.com reports on KaZaA's countersuit. Not only are they arguing that their system is different from Napster such that it fits the "substantial non-infringing uses" Betamax defense, but they're also arguing that the music and movie industries are guilty of copyright misuse and antitrust violations.
As I discussed yesterday, I do believe that the music and movie Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-881219012003-01-27T15:09:00.000-08:002003-02-08T19:31:20.000-08:00Brick and mortar to move online ... with music industry permission
News.com reported Best Buy, Hastings Entertainment, Tower Records, Trans World Entertainment, Virgin Entertainment and Wherehouse Music will join forces to distribute music online. But, this is the key to the article: "The retailers did not give specific details of their plans, but said they would try and get licenses to deliverDerekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-881137392003-01-27T12:27:00.000-08:002003-02-08T19:31:26.000-08:00Protecting Fair Use by Reinventing Copyright (Part 1 in a series)
I will be producing a series of posts about protecting fair use. Most of the current copyfight focus is on what to do about the Hollings bill, DMCA, etc. Rather than simply criticizing these proposals, I want to look at alternatives to them. I want to evaluate other proposals that will protect fair use, but provide adequate Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-880833962003-01-26T22:24:00.000-08:002003-02-08T19:32:42.000-08:00More from The Economist
(More of the same, but I figured I'd link anyway. Comments on similar articles here )
Another interesting article about copyright. Mentions Jessica Litman's plan of redefining copyright, FIsher's taxation plan, and Lessig's copyright renewal plan. After rejecting those (too quickly, I think), it goes on to discuss what would happen if content owners get what they want Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-880827462003-01-26T22:07:00.000-08:002003-02-08T19:32:37.000-08:00Sony's Open MG X and better DRM
We already had this debate over whether "better DRM" can exist. As I read Wired's great article about Sony, this caught my eye:
"With OpenMG X, the version being developed, Sony will no longer set blanket rules for its own devices; it's created a digital rights management system that works on any manufacturer's hardware and allows the content owner to set the Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-879660322003-01-24T09:49:00.000-08:002003-01-28T15:49:09.000-08:00IP Justice and International IP
Former EFF attorney Robin Gross did an interview with Cnet about her new group, IP Justice.
I'm intrigued by the international component of this organization. It's one to watch.Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-879657272003-01-24T09:43:00.000-08:002003-01-28T15:49:16.000-08:00The Economist Parties like it's 1790 ... Sort Of
Mr. Lessig and Frank Field pointed me here.
The Economist obviously gets part of the copyfight. The magazine understands that copyright's scope and length have gotten out of control. But, let's take a look at the last paragraph:
"However, to provide any incentive at all, more limited copyrights would have to be enforceable, and in the digital Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-879209192003-01-23T14:12:00.000-08:002003-01-28T15:49:27.000-08:00A Different "Progress"
Well, we've had the debate about "Progress" in the the Article 1, Section 8 Copyright Clause. Now, what does "Progress" mean in this context. Donna does a great job of explaining both sides of it. As alluded to earlier today, I agree with much of what Mr. Bradner has to say.
Don't get me wrong - I'm glad that the ADP will challenge the mandates. But, ultimately, I Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-879083872003-01-23T09:40:00.000-08:002003-01-28T15:49:34.000-08:00More on Rhetoric
Professor Felten has some good advice.
I'd also suggest using that nice one liner from the Johansen verdict: "no one could be convicted of breaking into their own property." That's intuitive, and it's better than the "lock-picks can be used to break into places, and guns can be used to kill people, but we don't ban them." Because, we do ban a lot of tools like those (in Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-879071842003-01-23T09:15:00.000-08:002003-02-10T16:32:57.000-08:00The Free Market, DRM, and the EFF: a brief critique
[UPDATED: 2-10-03]
[New]
I rarely have anything even mildly critical to say about the EFF. In fact, I respect and praise most of what they've done. But, recently, I've begun to question some of their actions (or lack thereof). Specifically, I wish they would take a clearer public stance on Palladium/TCPA, and I wish they would have done so Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-879028932003-01-23T07:46:00.000-08:002003-01-28T15:49:57.000-08:00And more introduction
My goal is to make this blog more about the normative questions about copyright. I think everyone else has covered "what's wrong now" and "what will happen if x bad proposal gets passed." I want to do more "what would we like to see happen?" My goal is to, slowly but surely, through thought and discussion and such, nail that question down. For an example of what I Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-878729672003-01-22T17:44:00.000-08:002003-01-28T15:50:06.000-08:00Say goodbye to privacy
Let me get back to this whole Verizon ruling.
First thought: whatever happened to due process?
Second thought: what is the RIAA going to do with the people they subpoena? Will they sue them? Will they warn them? Will they try to force the ISPs to shut off their service?
In a way, this is what we've all been waiting for, right? We've been saying, "Don't sue the technologyDerekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-878723472003-01-22T17:31:00.000-08:002003-01-28T15:50:12.000-08:00The Rhetorical Gap
Doc Searls wrote a great blurb about the rhetorical problems that the consumer-interest side has in the digital copyright debate. I think he's dead-on.
I also am dreadfully afraid that the rhetorical gap is one we'll never close. Jack Valenti has used the same description of digital piracy for the last five years; look up some interviews with him, and I bet you 8 out of 10 Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.comtag:blogger.com,1999:blog-4135223.post-878713122003-01-22T17:07:00.000-08:002003-01-28T15:51:54.000-08:00Introductions
So, I suppose I should start this whole shebang by introducing myself. My name is Derek Slater, I'm 19, and I'm a student at Harvard. I'm not quite sure when, but sometime before now, I got wind of all this MP3 business and this crazy DeCSS stuff, and I couldn't quite make sense of it. So, I began writing and reading and such, bought the original Diamond Rio, and was hooked. Derekhttp://www.blogger.com/profile/00678056058407868884noreply@blogger.com