Ernest Svenson: Copyright Law

The Sounds of Silence

Can you copyright silence? Some people think so. But, of course, some people are frigging idiots.

Protecting the Commons...

"lessig"'s interview is available. Read it. Then go buy his book "the future of ideas"

Music will flow like water, free of the constraint of copyright?

David Bowie to Jon Pareles in the New York Times: "The absolute transformation of everything that we ever thought about music will take place within 10 years, and nothing is going to be able to stop it. I see absolutely no point in pretending that it's not going to happen. I'm fully confident that copyright, for instance, will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing." via [Doc Searls Weblog]

More and more musicians are taking this view. And let's not forget Don Henley's Recording Artists' Coalition, which was a major shot across the industry's bow. Tick, tick, tick....

Oh, and here's a link to an article by the folks at Corante Copyfight. Read it and cheer.

The EFF has a white paper out on DMCA

From "denise": "The EFF has a white paper out this month by attorney Fred von Lohmann ("Unintended Consequences, Three Years Under The DMCA") examining the impact of the DMCA and its anti-circumvention provisions. (The links to the EFF home page and the .pdf of the white paper are not working for me at the moment, but the Google html version is here.) Using real world examples of disputes arising under the DMCA, the report makes the case for how the legislation "chills free expression and scientific research," "jeapardizes fair use," and "impedes competition and innovation." It also observes,

"As an increasing number of copyright works are wrapped in technological protection measures, it is likely that the DMCA's anti-circumvention provisions will be applied in further unforeseen contexts, hindering the legitimate activities of innovators, researchers, the press, and the public at large."

Those who contemplate the banning of Magic Markers, or of writing about them - like Newsforge - emphasize just how unintended and absurd potential applications of the law could get. The white paper is a thoughtful round-up and analysis of DMCA cases, well worth the read. [Via Law.com] via [Bag and Baggage]

Copyrighted Coconuts - Say it three times real fast.

I missed this one, but Overlawyered didn't. A local parade organization (called Zulu) claimed a Slidell business man who painted 150 coconuts for a St. Patricks' Day Parade was infringing on their intellectual property. Everyone here in New Orleans knows about the coveted Zulu coconuts. But that doesn't mean they have an intellectual property right. [Times Picayune]

LeGuin's Amicus Eldred brief

Here "is a PDF of the National Writer's Union (et al)'s amicus brief on the Eldred v. Ashcroft case, to roll back the Sonny Bono Copyright Act of 1998. It's brilliant -- and Ursula K. LeGuin is a co-signatory!" Link via [bOing bOing]

Trial Date Set for Elcomsoft/Adobe E-Book Case Under DMCA

The first criminal trial under the Digital Millennium Copyright Act will begin Aug. 26, a federal judge decided. ElcomSoft Co. Ltd. of Moscow could be fined $500,000 if convicted of selling a program that let users circumvent copyright protections on electronic-book software made by Adobe Systems Inc. via [GigaLaw]

I wonder what "rich" thinks about this lawsuit? He's a criminal defense lawyer so hopefully he'll provide some running commentary....

More Proof That Copy Protection is Always Doomed

The Register had this story first, but I didn't quite believe it. Now Reuters has picked it up and confirmed it in great detail. Sony has taken to screwing with its music CDs so that they won't play on computers. God only knows how much they spent developing or licensing the technology.

Here's how to beat it: take a common marker (a Sharpie is probably best), and draw a line around the edge on the non-labelled side. Presto! a disc that will play. Millions of dollars to protect, 39 cents to defeat. No wonder retail CDs cost $19. via [Over the Edge]

And even if that doesn't work you can always feed the pristine audio sound into the microphone input and make an MP3 that way. That's the problem with copy protection schemes: anything that is analog can become digital, and once it does it keeps on going, and keeps on going....(just like the Energizer Bunny).

"Eldred v. Ashcroft"

A whole site dedicated to this case. Now that's weblogging, baby! via [Daypop Top 40]

Copyright laws used to distort patent laws and extend monopoly period

Biotech companies are doing an end-run around the patentability of DNA sequences by transcoding them as MP3s. Since MP3s, as music, enjoy a 95 year monopoly under the Sonny Bono Anti-Public-Domain Act of 1998, this will give the companies a 95 year "copyright" on the sequences they identify. "It's taking artistic copyright laws and using them to get around scientific issues," he said. "I think it stinks." But a copyrighted genetic-based song could serve as a safe way to transfer DNA sequences between scientists, according to Don Pelto, an intellectual property lawyer with Washington firm McKenna Cuneo. Link via [bOing bOing]

Bag and Baggage

Fish Out Of Water - The CARP Dies

"The United States Copyright Office on Tuesday rejected an arbitration panel ruling on Webcasting royalty rates, a decision that is sure to rankle the recording industry and bring smiles to the face of Internet radio executives nationwide."

More from the Librarian of Congress: "The Register of Copyrights recommends, and the Librarian agrees, that the CARP's determination must be rejected. A final decision will be issued no later than June 20, 2002." 'Scuse me, I'm going to tune in some Internet Radio." via Denise

NPR was all over this story yesterday, and I was surprised to hear that the guys from Arbitron were critical of the proposal. And so were artists (who of course always want exposure). It's interesting to me the shift that is occurring between artists and publishers/distributors. That is to say, when Copyright laws were first created it was to benefit publishers (with the assumption that there would be a derivative benefit to authors). Now we see that authors have a direct market and it is the publishers (or music companies) that are trying to lock down the distribution channels. Now, let's do the math. If the point of copyright is to promote the arts (and that's what the Constitution says) and artists want to create and distribute their work then shouldn't the law favor the widest possible distribution?

Oh, I forgot. The artists usually sign away their copyrights to the publishers and music companies in exchange for their promotion efforts. Say, does anyone remember why John Fogarty got sued? Hint: he had signed away his copyrights early on (the Creedence Clearwater stuff) and so when he made his big comeback and started writing music again, Fantasy Records, which controlled the Creedence stuff, sued him for writing songs that sounded too much like his old stuff.

So, where is the promotion of creativity in our current music distribution scheme?

Lessig et al. Files Brief in Eldred Case (involving limitations on duration of copyrights)

I would encourage people to read the whole brief, but for those who don't want to here are some important snippets from the brief that was filed with the U.S. Supreme Court.

Who for example are the people challenging the law?

Well, there are several organizations. We tend to think of just Mr. Eldred, but there are others:

Most of the petitioners are commercial entities that build upon the public domain. Best known in this group is Dover Publications, a large-scale publisher of high-quality paperback books, including fiction and children’s books. J.A. 18-19. Prior to CTEA, Dover had planned to republish a number of works from the 1920’s and 1930’s, including “The Prophet” by Kahlil Gibran and “The Harp-Weaver” by Edna St. Vincent Millay. J.A. 19. CTEA has delayed the entry of these works into the public domain by 20 years.

What sorts of reasons do the challengers give to attack the law extending copyright protection?

Basically, two reasons. First, the law is unconstitutional because it violates the provision of the Constitution that says that, while Congress can grant copyrights to promote the "arts and useful sciences," it can only do so for "limited times." Second, the extension hampers free speech and therefore violates the First Amendment. While the second reason sounds good to most non-lawyers, the first reason probably has a better chance of appealing to the Justices on the Court. Here is an excerpt from the part of the brief that summarizes the legal arguments:

“The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803). This case is about one important limit on the legislature’s power that Congress has clearly forgotten.” The Copyright Clause gives Congress the power to “promote the Progress of Science,” by granting “exclusive Right[s]” to “Authors” “for limited Times.” U.S. Const. art. I, § 8, cl. 8. There is no mystery about what the Framers had in mind for the duration of copyright—they expected it would be “short” so that after a “short interval,” creative work would pass into the public domain “without restraint.” [citation omitted] Nor is there any doubting the Framers’ fear about the power that they were creating: the resolution against monopolies was as strong in the framing generation as in any time since; they, more than we, were keenly sensitive to the dangers of state-backed monopolies. But their hope was that the government might help spur learning and innovation. And to balance their hope against their fears, the Framers crafted the most carefully circumscribed power within Article I, § 8. The Copyright Clause is the only power in Article I that specifies both its ends—”to promote the Progress of Science”—and also its means—”by securing for limited times . . . exclusive Right[s].” Monopolies were to be allowed, but only to “promote [] Progress.” Congress has now found a way to evade this constitutional restraint. Rather than granting authors a fixed (i.e., “limited”) term of copyright, Congress has repeatedly extended the terms of existing copyrights—eleven times in the past forty years.

Like I said, I would encourage everyone to read the whole brief. This is an important case, and hopefully this brief (which is the product of many fine lawyers, and not just Larry Lessig) will have a strong impact.

Digital Rights - A Soon to Be Released Hollywood Blockbuster

"Hollywood studios and record labels want to encrypt their products with an algorithm of some sort, for which every piece of hardware or software that plays or displays their material must have a corresponding electronic key. (If the algorithm or the key is missing, the content won't play -- thus thwarting pirates.) For added protection, the established entertainment companies want Congress to pass a law requiring technology companies to build the key into their products. Thus, no DVD players, PCs, CD players, or operating systems would be legal without Hollywood-designed copyright protection." [BusinessWeek] Via [Scobleizer Radio Weblog]

Let's see now, wasn't the government not too long ago telling us that if we didn't require a back door key into all encryption schemes that terror would reign supreme?

It's always fascinating to watch those who have power try to convince us poor ignorant slobs that things like encryption are good for us. Oh, is it? Well then. I'm quite sorry for my impetuousness and juvenile mistrust. Why of course, it's for the public benefit. Yes, quite! (Hurray for the public) And please pass the crumpets will you, kind sir?

DNA as the new painting medium???

Australian painter Pro Hart has become the first artist to mark his work with his DNA. Other artists are expected to follow his lead, to authenticate their works beyond doubt. [The Observer] Via [a klog apart]

Sure, why not? On the one hand you've got the science community claiming patent rights to human DNA, and on the other you've got artists working with DNA as a medium to ensure authenticity. I wonder if anyone involved with the SDMI is looking into this?

RealNames - Keyword naming system patent

Keith Teare finds out that Microsoft filed a patent for a keyword naming system two months after RealNames began discussions with Microsoft. Via [John Robb's Radio Weblog]

Consensus at Lawyerpoint

National Journal Hosts June 4 Debate on BPDG in Washington, D.C. Via [Doc Searls Weblog]

How Copyright Became Controversial

"How did copyright become controversial? In a phrase, the Digital Millennium Copyright Act (DMCA). Although many of legal controversies that have swirled since its October 1998 passage trace their roots to other elements of copyright law, the DMCA created a new feature in copyright law that has crystallized why so many academics, librarians, computer users, and technology entrepreneurs object to what they regard as the overreaching nature of copyright law....

By linking the concept of anti-circumvention to copyright infringement, the DMCA starkly raises new questions about the nature of copyright law. Originally designed to prevent copying, it now also constrains access, including access to materials that one has purchased, like a DVD or a computer. While examining the justification for doing this as a form of contract law is beyond the scope of this essay, I do suggest this fundamental change in copyright law forces a reevaluation of its grounding." [by Drew Clark] Via [The Shifted Librarian]