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07.24.2008
The UK Acts Against File-Sharing Piracy

Today, the Financial Times reported a significant development in the fight against online copyright piracy. The U.K. is reportedly ready to announce an agreement between copyright owners and ISPs under which UK ISPs will agree to work to achieve "a 'significant reduction'" in illegal file-sharing. As a first step, the proposal would have ISPs send warning letters to 1,000 prolific illegal downloader per week during the three-month trial period. If that fails to significantly reduce illegal file-sharing, other alternatives would be considered, including a variation of the graduated-response/three-strikes proposal that would eventually disconnect Internet access services of persons who ignore repeated warnings or--of course--another European media levy, this time on internet-access services.

Personally, I hope that the U.K. opts for the graduated-response option. I realize that the usual "public-interest" groups say that disconnecting infringing users after repeated warnings is unfair, but, seriously, as compared to what? Forcing copyright owners to incur thousands of dollars filing John Doe lawsuits that must then be recovered from the families of teenagers and students unless copyright enforcement is to become a money-loosing proposition? Putting college students in jail? Those are the options available to deter illegal file-sharing under existing U.S. law. Are these options honestly less punitive or more enlightened than a graduated-response program? And by the way, libraries also provide access to knowledge, but if you don't follow their rules, they will throw you out and revoke your borrowing privileges. Is that unfair?

Granted, these "public interest" groups may really think that suing teenagers and imprisoning college students are good ways to enforce copyrights on the Internet. For example, in MGM Studios, Inc. v. Grokster, Ltd., the Internet Archive, Project Gutenberg, and many associations of university and law-school librarians argued that for-profit corporations that encourage or dupe teenagers or students into downloading infringing files should not be held liable for the intended consequences of the business models that gave those corporations "no product costs to acquire music" and "the ability to get all the music." Why? Because these guardians of the public interest argued that the teenagers and college students that these corporations induced could just be sued into ruin by copyright owners or imprisoned by the United States Department of Justice. So remember, university students, if your file sharing causes you to receive a prelitigation letter or subpoena from a copyright owner--or a visit from the FBI--do be sure to say "thanks" to the Internet Archive, Project Gutenberg, and your campus librarians: They all told the Supreme Court that bankrupting or imprisoning you should be the preferred means of enforcing copyrights on the Internet....

But for those inclined to think seriously about how copyrights should be enforced on the Internet, this new U.K. proposal ought to be viewed as a wake-up call, though it need not be a roadmap for what we should do here. It should, however, remind us that we have a serious problem, and that we need to think seriously about how that problem ought to be resolved.

History suggests that if we do think seriously about all of the interests involved--consumers, copyright owners, artists, and ISPs--then we probably can identify means short of compulsory licensing or levies that can reconcile those interests and significantly reduce piracy. Consider, for example, the balance that the Digital Millennium Copyright Act (the "DMCA") struck as to sites hosting user-generated content ("UGC").

UGC sites have enormous potential to encourage creative expression, but it would be difficult to imagine how they could operate were they governed by the strict-liability that copyright law has traditionally imposed upon distributors of expressive works. But simply exempting UGC site operators from liability for infringing third-party uses of their sites would only encourage piracy and shift copyright enforcement onto individual Internet users.

As result, the DMCA created a so-called "safe harbor" that exempts UGC site-operators from liability for monetary damages if they take several measures to redress or deter infringing third-party uses of their sites. The most important is the so-called "notice-and-takedown" requirement. It prescribes an iterative process of dispute identification and resolution. First, a copyright owner must notify a site operator of allegedly infringing content. The site operator must then take down the content and notify the subscriber who posted it. The subscriber must then decide whether to send a counter-notice to the site operator. If the subscriber sends a counter-notice, then the operator must restore access to the disputed content unless or until the copyright owner files a lawsuit and secures a court order requiring it to be taken down.

This takedown process can benefit all three parties--copyright owner, site operator, and even the allegedly infringing user. The copyright owner gains a means to halt infringing conduct that is faster and cheaper than a lawsuit. The site operator gains unprecedented protections against most infringement liability. The allegedly infringing user receives a warning about any potential conflict, and gets to chose whether to avoid or confront it. This takedown process has resolved countless potential disputes and prevented many lawsuits.

But make no mistake: The DMCA notice-and-takedown regime is not ideal--not for copyright owners, UGC-site operators, or UGC-site users. Copyright owners find themselves playing takedown-notice whack-a-mole in which the same infringing content is repeatedly taken down and re-posted. UGC site operators incur enforcement and response costs, and operators receiving too many notices may fail to qualify for the safe harbor. For users, the notice-and-takedown process may alert them to potential conflicts and let them decide whether to avoid them, but it may not always show them how to correct problems so the content can be safely re-posted.

Fortunately, Congress expected that even the imperfect incentives to cooperate imposed by the takedown process would encourage interested parties to devise innovative solutions superior to any contemplated back in 1998. See 17 U.S.C. § 512(i)(1)(B). Congress appears to have been right. Many copyright owners and UGC-site operators have entered into licensing agreements. Both YouTube and the parties to the Copyright Principles for UGC Sites are preparing to deploy advanced filtering technologies. The parties to the Principles are also devising more interactive dispute-resolution procedures. Consequently, not even important, backward-looking disputes like the Viacom-Google litigation should obscure the progress being made by copyright owners, UGC-site operators, and UGC-site users.

To be sure, the DMCA did not anticipate the rise of file-sharing piracy that cannot be reasonably redressed at the application level. Nor could the balance that the DMCA struck as to UGC sites just be "cut and pasted" into the context of access providers. Nevertheless, the case of UGC sites show that when the law has encouraged cooperative approaches--even imperfect ones--cooperation has occurred, improvements have been made, and enforcement lawsuits against consumers have been almost entirely avoided.

Finally, some will argue that the U.K. proposal is unfair to internet-access providers. That argument has weaknesses and strengths. To be sure, many claim that piracy has helped access-providers by driving demand for broadband access. For example, in Free Culture, Professor Lawrence Lessig argues, "The appeal of file-sharing music was the crack cocaine of the Internet's growth. It drove demand for access to the Internet more powerfully than any other single application. It was the Internet's killer app.... It no doubt was the application that drove demand for bandwidth."

But while piracy may have been indirectly benefited some access providers, it has also imposed significant costs and inefficiencies. For example, from the perspective of efficient network management, most ISPs should cache popular downloads. But doing so is extremely risky. The DMCA's caching safe-harbor, (§512(b)), like its other provisions, envisioned a web-based Internet: Consequently, it does not seem to "harbor" the caching systems needed by file-sharing networks. Nevertheless, vague reports alleging the use of caching have surfaced ever since the 2004 study, Is P2P Dying or Just Hiding?

But in any case, a simple fact remains: Broadband Internet-access providers were not the ones who worked hard to ensure that file-sharing piracy would become a problem that could not be redressed at the application level. If those who did try to make that problem difficult to remediate now expect others to clean up their mess, then that is unjust.

Nothing makes this point more effectively than the written testimony provided recently to a congressional committee by Mr. Mark Gorton, "the founder and Chairman of LimeWire, LLC, the makers of the LimeWire file sharing program":

The regulatory framework that surrounds the Internet has not kept pace with technical advancements, and currently, no effective enforcement mechanisms exist to address illegal behavior on P2P networks.
Internet Service Providers, ISP's, are a unique point of control for every computer on the Internet. Universities frequently function as their own ISP's, and a handful of universities have implemented notice based warning systems that result in the disconnection of users engaged in illegal behavior who ignore multiple warnings. These universities have sharply reduced child pornography and copyright infringement on their campus networks.
Similar policies could be mandated for all ISP's in the United States. However, these policies are unpopular with the telecom and cable companies who would prefer not have an enforcement relationship with their paying customers. The telecom industry has objected vigorously to previous attempts to involve ISP's in the enforcement process and it continues to oppose policies that would allow for the establishment of moderate, yet effective enforcement mechanisms to combat illegal behavior on the Internet.
The only institution in the United States with the power to mandate the creation of an effective enforcement mechanism to police the Internet is the United States Congress.

I believe that careful thought would reveal viable solutions to the challenges of file-sharing piracy more creative and less prescriptive than those proposed by LimeWire. And if distributors of piracy-and-pornography-prone file-sharing programs now admit that they have knowingly created problems that can only be resolved by imposing significant costs on many third parties, including copyright owners, internet users, and internet-access providers, I would respectfully suggest that federal law-enforcement agencies should take such admissions into account. And send a message....

posted by Thomas Sydnor @ 10:22 PM | DMCA , Enforcement & Remedies , Free Culture Movement , Internet: P2P, Search Engines... , Markets: Business, Investment & Innovation

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05.20.2008
U.S. Implementation of the Making-Available Right

CSDP just released a new paper addressing a question that has attracted much recent attention: Does posting a copyrighted work on a website or “sharing” it over a peer-to-peer file-sharing network like KaZaA infringe the exclusive rights that U.S. law grants to copyright owners? In other words, does the U.S. Copyright Act provide the “making available” right required by the WIPO Copyright Treaty, the WIPO Performances and Phonograms Treaty, and at least six bilateral or multilateral Free Trade Agreements?

This paper raised one of the more vexing legal issues that I have encountered in some time. The problem was not so much the difficulty of the underlying substantive issue. (Indeed, as the paper indicates, I think there is a very powerful case for recognizing a making-available right by adopting a plain-meaning interpretation of “to authorize” the phrase used to define the scope of all the exclusive rights granted by the Act.) Rather, the problem was that I have always thought it important that Congress and the President had both expressly and necessarily interpreted the Copyright Act to provide a making-available right when they enacted the implementing legislation for the WCT, the WPPT, and the six FTAs.

Many others with whom I have discussed this issue did not agree that these interpretations were particularly important. Our disagreements centered on a question that, does, at least in the context of international law and at the Supreme-Court level, seem to be open. Since the 1804 case Charming Betsy, the Supreme Court has held that courts should adopt any possible interpretation of a U.S. statute that would avoid a conflict with the international agreements and obligations of the United States. Nevertheless, to date, almost all cases invoking the Charming-Betsy interpretive principle seem to involve efforts to construe statutes that were enacted after a given treaty or international agreement had imposed some sort of obligation upon the United States.

The case of the making-available right reverses the temporal relationship between the relevant domestic statute and international agreements: The WCT, WPPT and the FTAs all postdate the Copyright Act of 1976 by at least thirty years. Many people found it odd that the terms of international obligations should influence the interpretation of a statute enacted about 30 years earlier. I could neither deny that such arguments had some force nor that I still found them unpersuasive, though for reasons that I could never quite articulate.

I hope that this paper can explain the source of these disagreements. I happen to have a longstanding interest in administrative law. Consequently, when I look at the Copyright Act of 1976, the implementing legislation for the WCT, WPPT, and the FTAs, and cases like Barker, I think that the resulting situation raises a question about the need for judicial deference analogous to that raised and resolved in cases like Chevron v. NRDC.

In the typical Chevron case, a governmental entity (usually a federal agency) must interpret an existing statute in order to determine how best to exercise lawfully acquired law-making powers. In such cases, courts accord so-called Chevron deference to statutory interpretation adopted by the agency: Regardless of whether the reviewing court might think some other interpretation more persuasive, it will defer to any reasonable interpretation that the agency adopted during the exercise of its law-making powers.

To be clear, I do not contend that Chevron is literally binding precedent in cases like Barker, but neither do I see why it is distinguishable as a matter of law and logic. The same factors that justify Chevron deference in the administrative-law context seem to recur here: To implement international agreements, Congress and the President must exercise their constitutionally delegated law-making powers, and to do so, they must interpret the meaning of existing statutes. Indeed, the interests in predictability and comity that justify Chevron deference seem to be both present and heightened in international-agreement implementation context. It is not clear why a case-or-controversy-bound judge should conclude that the President and Congress seven times executed the international obligations of the United States incompetently or duplicitously if a permissible interpretation of the Copyright Act would avoid the need to draw such conclusions.

Questions about the existence or scope of a U.S. making-available right will clearly be occupying many minds as the summer progresses. For the reasons set forth in the paper, I suspect that as courts begin looking closely at these questions, they will realize that their answers are less difficult to discern than they might seem at first glance.

posted by Thomas Sydnor @ 3:40 PM | DMCA , DRM & Watermarks, etc. , Enforcement & Remedies , Free Culture Movement , General , International , Internet: P2P, Search Engines... , Legislation and Legislators

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03.18.2008
File-Sharing, LimeWire, Identity Thieves, and 9-Year-Old Girls: Solutions Are Needed

Yesterday, convicted identity thief Gregory Kopiloff was reportedly sentenced to 51-months in prison for using LimeWire to download inadvertently shared tax returns, credit reports, bank statements and student financial aid applications that he then used to commit credit-card fraud.

Some sources report Kopiloff as the first case involving inadvertent sharing and identity theft. Actually, it is the first federal prosecution of an ID thief who exploited inadvertent sharing. Back in 2006, Denver District Attorney Mitchell Morrissey indicted an 8-person ring that used LimeWire to download inadvertently shared files, commit identity theft and fraud, and then use its proceeds to buy and sell crystal meth.

For prosecutors, this means that nine identity thieves exploiting inadvertent sharing have gone down and "tens of thousands" remain. This latter point was reinforced in two recent Information Week stories (here and here) that focused on inadvertent sharing of corporate data:

Are peer-to-peer networks really filled with sensitive corporate data just waiting to be plucked and abused? It seems unlikely--surely people wouldn't be that sloppy....
The results were shocking and scary--loads of confidential business documents and enough personal information to ruin any number of lives and create PR nightmares for quite a few companies. Among the business documents were spreadsheets, billing data, health records, RFPs, internal audits, product specs, and meeting notes, all found in a quick expedition....

The Info Week researcher looking for such documents also reportedly found an "information concentrator," someone who appeared to be deliberately collecting other people's inadvertently shared data--bank passwords, credit card numbers, credit reports and tax returns. The researcher realized the irony of what he had discovered: Persons trolling for inadvertently shared documents have the strongest legal and practical reasons not to "share" the data they download. Consequently, Info Week's potential identity thief was almost certainly "sharing" his data stash inadvertently.

If the professional thieves who exploit inadvertent sharing cannot consistently manage to avoid doing it themselves, one can well imagine what happens to the 26% of the 9-to-14-year-olds who reportedly use LimeWire. Indeed, those who would assume that such kids understand even the best-known of the risks that they are incurring should review Torrentfreak's interview with "Hannah," the reported pseudonym of a nine-year-old LimeWire user. Here is a sample:

TF. …"You mentioned you like Sean Kingstone - what if I told you that Sean Kingstone’s boss might send you a letter asking for money because you shared his album on LimeWire? What would you say to him?...."
[Hannah]: "I’d say “tooooo strict!” and anyway he can’t make me do anything. He’s not the boss of me, he’s the boss of Sean Kingstone."
TF. "What do you think might happen if you didn’t pay him?"
[Hannah]: Nothing. I’m too young to be charged by the government so he can’t charge me.

This interview illustrates yet another reason why inadvertent sharing must end. It also illuminates three other important points about Internet copyright enforcement:

First, if Hannah's family has to drain her college fund to settle a potentially ruinous infringement lawsuit, that will happen because distributors of programs like LimeWire chose to ignore the 512(d) safe harbor and to lack any means of disconnecting infringing users and responding to takedown notices. They chose, in other words, to create a conflict between users of their programs and copyright owners that the latter could not resolve through means less punitive than infringement lawsuits. As a result, suing infringing LimeWire users (like "Hannah") was the copyright-enforcement solution proposed by LimeWire LLC in Grokster.

Second, in Grokster, over 8 public-interest organizations, 79 professors of intellectual-property law and a vast array of technology companies and Internet savants argued that that distributors of file-sharing programs should not be liable even if they did intentionally "induce," (i.e., encourage or dupe), 9-year-old-girls into violating federal law. Why not? Well, these amici argued, inter alia, that the adult inducers should go free because copyright owners could just sue the many thousands of children and college students that they induced. Such sue-the-children arguments were made by entities including the distributors of LimeWire, Morpheus and Grokster, CNET, university librarians, some Internet-service providers, and Project Gutenberg, the Internet Archive and four professors from Harvard Law School's Berkman Center for the Study of the Internet and Society. In Grokster, such arguments were also rejected, unanimously, by all nine Justices of the United States Supreme Court.

Third, today, many countries are re-assessing whether and how we can significantly reduce the deliberately-crafted problem of file-sharing piracy without asking copyright holders (or prosecutors) to sue tens of thousands of children, students, and single mothers. For the sake of all concerned, I hope that this debate will feature Internet-community thinking more creative than the sue-the-children/my-customers mantra that animated the defense of the Grokster respondents. Indeed, even LimeWire LLC now argues that there are now better, alternative solutions to the mess that it made--albeit legislated solutions that impose significant costs upon all concerned, except LimeWire LLC.


posted by Thomas Sydnor @ 9:45 AM | Academia , DMCA , Enforcement & Remedies , Free Culture Movement , Internet: P2P, Search Engines... , Privacy and Security , Supreme Court

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10.18.2007
User-Generated Content: A Principled Market Response

Some of the most interesting challenges for digital-age copyright policy arise from the growing popularity of user-generated content (UGC). UGC offers exciting new possibilities for people to create or interact with their favorite works, but it raises thorny problems that range from its potential to facilitate infringement to questions about reconciling the creative potential of UGC with other creators’ interests in the artistic integrity of their works.

Fortunately, one advantage of letting enforceable property rights generate markets for socially valuable goods and services is that markets require participants to find “win-win” solutions: In a market, a given transaction should occur only if all parties to it are better off as a result. Markets thus create potent incentives to reconcile divergent interests.

The solution-generating power of markets was evident today when a diverse coalition of technology and media companies released Copyright Principles for UGC Services. The Principles attempt to define a win-win-win solution: A set of ground rules that will promote respect for copyrights, the production of UGC, and the development of innovative platforms for promoting and distributing it. Key provisions of the Principles include the following:

1) UGC sites should use “highly effective” filtering technologies, or human review, to identify and remove infringing content before it is uploaded and enhance or update those technologies as significant advances become commercially available.

2) Copyright holders and UGC sites should cooperate to ensure that filtering systems effectively balance legitimate interests in blocking infringing uploads, allowing original or authorized uploads, and accommodating fair use.

3) Copyright holders and UGC sites should develop procedures to promptly address conflicting claims of ownership, and user’s claims that filtered content was not infringing.

4) Copyright holders should neither file infringement claims against UGC sites that adhere in good faith to the Principles nor assert that adherence to the Principles disqualifies a UGC site from claiming the benefits of safe-harbor protections like those in the DMCA.

At their core, the Principles seek cooperative solutions to the possibilities and challenges posed by UGC. For that, they should be applauded. When property rights are unclear, or not respected, we often resort to non-market-based dispute-resolution mechanisms—like litigation. But litigation does not promote win-win outcomes and may leave all parties worse off. Companies like Disney, Microsoft, NBC-Universal, MySpace, Daily Motion, CBS, Viacom, and Fox deserve great credit for this effort to identify solutions that balance their interests with those of creative consumers. Bravo.

posted by Thomas Sydnor @ 5:46 PM | DMCA , Enforcement & Remedies , Internet: P2P, Search Engines... , Markets: Business, Investment & Innovation , Prices, Terms, and Licensing , Standards

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10.17.2007
The Link-Site Cases

Recently, the movie industry has sued several websites that provided well-organized sets of links to infringing copies or streams of movies or television shows hosted elsewhere on the web. In effect, the plaintiffs allege that these link sites were web-based versions of The Pirate Bay that used the draw of infringing content to sell advertisements. After reviewing the complaint in one of these cases, Disney Enterprises Inc. v. ShowStash.com, I think these link-site are potentially important for three reasons.

Continue reading The Link-Site Cases . . .

posted by Thomas Sydnor @ 11:50 AM | DMCA , Enforcement & Remedies , Free Culture Movement , Internet: P2P, Search Engines...

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08.23.2007
Intellectual Property Baselines

IPR critics take broad swipes at copyright and patent policies. Two prominent arguments posit that 1) investments into creative productions and inventions can be appropriated by leveraging them as "advertising" for other products, such as t-shirts, 2) peer-production under alternative incentives is sufficient for innovation and continued economic growth. These arguments are fundamentally flawed, and will have drastic implications if set into regulatory policy.

A resource with which to analyze arguments against IPRs is Innovation and its Discontents, Princeton Univ Press (2004), where Professors Jaffe-Lerner outlined the basic tenets for patents. The scholars noted the relationship between innovation costs and marketing, as well as the role of commercialization. Its significant that in a book critiquing the current patent system, Jaffe-Lerner highlighted baselines for IPRs that critics have overlooked.

If there were no incentives for those who discover and develop new technology, it is likely that fewer innovations would be developed, slowing progress and the benefits it brings. Potential inventors realize that without adequate protection rivals will rapidly copy their discoveries, and that therefore innovation is at best an uncertain route to future profits. As a result, companies would be unlikely to spend significant amounts of money on R&D that is the source of new products and processes in a modern economy. They would instead choose to spend their money pursuing other activities- for example, marketing campaigns...

…our capitalist free-enterprise systems has demonstrated a unique ability to generate new technology: industrialized economies have increased their economic productivity more in the last two centuries than in all the millennia of previous human history. The basis for this advance is firms’ pursuit of profit, which forces them to innovate.
Society benefits from creators and innovators investing in more than selling t-shirts. Society needs innovation in IT, not ways of marketing t-shirts! Basic research-product development are high risk ventures, advertising for t-shirts is not. It’s a bit ironic that IPR critics would not have creators leverage the phenomenon known as the Internet for anything more than advertising. The difference in margins between delivering products/services online versus selling t-shirts alone suggest that enabling creators to tap the Internet would lend to more innovation and consumer welfare.

The second argument of IPR critics addressed by Jaffe-Lerner is equally problematic. FOSS, the holy grail of the peer-production movement, exemplifies why commercialization and profit motive remain important to society. The informal peer-production of FOSS has had limited success, and is only improving as it formalizes and receives commercial backing. Peer-production supporters may posit that IP holders are stifling innovation, but the argument is confused. Stifled innovation would resemble the FOSS movement but the FOSS movement is not the result of it.

While IPR critics may be passionate about their views, they would little serve innovation nor other important societal interests.

posted by Noel Le @ 3:21 PM | Academia , DMCA , DRM & Watermarks, etc. , Free Culture Movement , Patents

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08. 5.2007
Fricklas and Copyright Enforcement

Michael Fricklas, Viacom's Executive Vice President, General Counsel and Secretary, commented on my IPcentral post.

Defending against unauthorized uses is expensive - only the biggest of companies can afford the apparatus to do it.

Allowing distributors and end users to freely override the creator's choice of licensing models means that the independent artist must accede to free distribution or have no distribution at all. But if the artist wants to pursue the rational business model of using the free internet to distribute promotional material and then licenses or subscriptions to get paid? - your approach is to make that impossible!

Better to empower the artist with tools to transact as the artist sees fit - and therefore prevent "new channels of distribution" built on free-riding and overriding -- as a way to ensure the robust creation of the content that the new channels of distribution depend upon.

You can't forget that the internet runs not just on technical innovation but on the constant creation of new works. And while some parasitic behavior can be tolerated- too much parasitic behavior kills not only the host but also the parasite!

Right on... Fricklas raises a number of good points. First, that independent creators may benefit from aggressive copyright enforcement by larger entities, as that enforcement can deter broad illegal activity that small creators cannot combat. Second, creators should be able to tap the Internet for revenue. Third, the Internet's value lies partially in how it enables the creation of new works, and its ability to do so rests on how well creators can leverage it.

posted by Noel Le @ 3:28 PM | DMCA

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07.16.2007
DRMWatch on GPL3

Bill Rosenblatt on GPL3 on DRM.


posted by Solveig Singleton @ 9:11 AM | DMCA , DRM & Watermarks, etc. , Software

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06. 6.2007
Bizarre lawsuit Watch

Bill Rosenblatt comments on the "bizarre" lawsuit that Media Rights Technologies has brought against Apple and other big players for not using their technology.

I note an aspect of this analysis with which I do not entirely agree. Bill argues that the DMCA allows content companies to avoid bearing the costs and consequences of lousy DRM--because they can sue for defeating even very low technological barriers to access. I've pondered this before. First, the DMCA does require that the barrier be "effective." That is part of the answer.

Second, it seemed to me that bringing suit after multiple holes have been poked in a weak DRM would not be an ideal business strategy to me. That is, having weak DRM turns what would be a (relatively) low-cost way to protect the mass market for your stuff--before-the-fact operational technology-- into a relatively expensive way to protect your stuff--an after-the-fact lawsuit.

Continue reading Bizarre lawsuit Watch . . .

posted by Solveig Singleton @ 9:51 AM | DMCA

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05. 8.2007
Technologists & the DMCA

In an excellent article for the Institute for Policy Innovation, Professor of Computer Science Lee Hollaar argues that:

Technologists, and particularly computer programmers, seem to fixate on unlikely scenarios while giving only lip service to the massive copyright infringement now happening. When they do look at problems, they dismiss technical solutions because they are not perfect. And they ignore how laws can support or work alongside technology, because law is unfamiliar to them. By putting problems in perspective, technologists can be particularly effective in finding approaches to the real problems in today’s digital world.
Mountains Out of Molehills: How Believing the Worst Makes Technologists Ineffective, and What They Can Do About It.

Using as illustrations recent anti-DMCA papers from the EFF and Cato, he notes that the real story is how little harm can be attributed to the DMCA, and how the authors are forced to recycle the same few stories repeatedly in an effort to maintain the desired level of righteous indignation:

Continue reading Technologists & the DMCA . . .

posted by James DeLong @ 3:00 PM | DMCA

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05. 8.2007
NBC & YouTube

posted by James DeLong @ 7:08 AM | DMCA , Internet: P2P, Search Engines...

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05. 3.2007
Professor Randy Picker on Digg

posted by Solveig Singleton @ 2:27 PM | DMCA , DRM & Watermarks, etc. , Liberty and IP

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05. 1.2007
YouTube Responds to Viacom

posted by James DeLong @ 2:21 PM | DMCA , Internet: P2P, Search Engines...

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04.17.2007
The RIAA and MPAA Should Pursue Actual Infringers

posted by Noel Le @ 7:20 AM | DMCA , Free Culture Movement

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04. 4.2007
Notice and Shakedown Revisited

posted by Amy Smorodin @ 10:28 AM | Access: Commons, Fair Use, Orphan Works, Public Domain , DMCA , Enforcement & Remedies

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04. 2.2007
Apple-EMI, Is Everybody a Winner?

posted by Noel Le @ 8:17 PM | DMCA , DRM & Watermarks, etc. , Free Culture Movement

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03.30.2007
Google on YouTube

posted by James DeLong @ 1:11 PM | DMCA

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03.22.2007
Picker Comments on Lessig and Copyright Policy

posted by Noel Le @ 7:42 AM | DMCA

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03.20.2007
Viacom & YouTube

posted by James DeLong @ 2:39 PM | DMCA , Media: Video, Music...

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03.19.2007
Experiment with Notice and Take-down

posted by Solveig Singleton @ 8:11 AM | DMCA

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03.17.2007
SXSW: Opt-In vs. Opt-Out

posted by Patrick Ross @ 2:19 PM | DMCA

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03.15.2007
Thoughts on Notice, Takedown, Fingerprints, and Filtering

posted by James DeLong @ 5:39 PM | DMCA , DRM & Watermarks, etc.

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03.14.2007
Viacom, YouTube, & the DMCA (2)

posted by James DeLong @ 10:05 AM | DMCA

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Viacom, YouTube, & the DMCA (1)

posted by James DeLong @ 9:24 AM | DMCA

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03. 7.2007
The Market and Reverse Engineering Can Improve DRM

posted by Noel Le @ 2:20 PM | Academia , DMCA , DRM & Watermarks, etc.

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03. 1.2007
IPI comments on Boucher's Bill

posted by Solveig Singleton @ 10:01 AM | DMCA

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02.27.2007
Boucher and Doolittle, What Do You Have Against Creators?

posted by Patrick Ross @ 5:21 PM | Access: Commons, Fair Use, Orphan Works, Public Domain , DMCA , DRM & Watermarks, etc. , Free Culture Movement , Legislation and Legislators , Markets: Business, Investment & Innovation

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Save the Date: March 16

posted by Solveig Singleton @ 3:03 PM | DMCA , Enforcement & Remedies

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02.21.2007
Intellectual Property Article/Study Reviews, February 2007

posted by Noel Le @ 5:19 PM | Academia , DMCA , DRM & Watermarks, etc. , Patents

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02.15.2007
Don't Trust a Company Over 30

posted by Patrick Ross @ 11:40 AM | DMCA

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02. 9.2007
MP3.com Founder Writes Challenge to Jobs

posted by Noel Le @ 2:04 AM | DMCA , DRM & Watermarks, etc.

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02. 6.2007
Viacom & YouTube

posted by James DeLong @ 8:00 AM | DMCA , Internet: P2P, Search Engines... , Media: Video, Music...

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Basic and Elementary Points on DRM

posted by Noel Le @ 7:00 AM | Academia , DMCA , DRM & Watermarks, etc.

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02. 5.2007
Ginsburg on the DMCA, DRM and Fair Use

posted by Noel Le @ 9:30 AM | Academia , Access: Commons, Fair Use, Orphan Works, Public Domain , DMCA , DRM & Watermarks, etc.

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02. 2.2007
Viacom Strikes Back

posted by Patrick Ross @ 11:17 AM | DMCA

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01.31.2007
IIPA Report on Copyright's Contributions to the American Economy

posted by Noel Le @ 7:00 AM | DMCA , DRM & Watermarks, etc. , Markets: Business, Investment & Innovation

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01.15.2007
The Public Domain That Matters to IPR Policy

posted by Noel Le @ 9:00 AM | Academia , Access: Commons, Fair Use, Orphan Works, Public Domain , DMCA , DRM & Watermarks, etc. , Free Culture Movement , Patents

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11.30.2006
EU Wrestles with Copyrights

posted by Patrick Ross @ 12:01 PM | DMCA , Markets: Business, Investment & Innovation

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11.27.2006
Circumvention Rules

posted by James DeLong @ 1:57 PM | DMCA

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New DMCA Circumvention Rules Out

posted by Patrick Ross @ 9:27 AM | DMCA

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Straightening Out DMCA-DRM Issues

posted by Noel Le @ 8:07 AM | DMCA , DRM & Watermarks, etc.

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11.15.2006
Computer Geeks Angered by Copying of Their Creations

posted by Patrick Ross @ 10:21 AM | Access: Commons, Fair Use, Orphan Works, Public Domain , Counterfeit , DMCA , Free Culture Movement

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11. 3.2006
Common Basis for Copyrights and Patents

posted by Noel Le @ 4:20 PM | Access: Commons, Fair Use, Orphan Works, Public Domain , DMCA , DRM & Watermarks, etc. , Markets: Business, Investment & Innovation , Patents

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11. 1.2006
Careful When You Say "Monopoly"

posted by Noel Le @ 8:28 AM | DMCA , DRM & Watermarks, etc. , Free Culture Movement , Markets: Business, Investment & Innovation , Patents

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10.26.2006
The Expense of GooTube

posted by Amy Smorodin @ 1:02 PM | Art , DMCA

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10.25.2006
This Just In: Dogs Still Hate Cats

posted by Patrick Ross @ 1:08 PM | Access: Commons, Fair Use, Orphan Works, Public Domain , Analog Holes , DMCA , DRM & Watermarks, etc. , Free Culture Movement , Legislation and Legislators , Markets: Business, Investment & Innovation

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10.24.2006
Don't Forget Producers From the Equation

posted by Noel Le @ 5:00 PM | DMCA , DRM & Watermarks, etc.

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10.23.2006
And They Said It Couldn't Be Done

posted by Noel Le @ 12:17 PM | Access: Commons, Fair Use, Orphan Works, Public Domain , DMCA

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Ask Lemley About Licensing Markets and the Lost Revenue Theory

posted by Noel Le @ 11:47 AM | DMCA , DRM & Watermarks, etc.

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10.20.2006
The Perfectionism of IP Critics

posted by Noel Le @ 12:46 PM | DMCA , DRM & Watermarks, etc. , Free Culture Movement , Markets: Business, Investment & Innovation , Patents

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10.16.2006
GooTube on Copyright

posted by Patrick Ross @ 4:27 PM | DMCA

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10.11.2006
Sooo, Why Do You Want to Reverse Engineer That Program?

posted by Noel Le @ 8:40 AM | Access: Commons, Fair Use, Orphan Works, Public Domain , DMCA

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09.26.2006
Love Thy Work

posted by Noel Le @ 1:16 PM | Academia , Access: Commons, Fair Use, Orphan Works, Public Domain , Big Tent , DMCA , DRM & Watermarks, etc. ,