Thursday, January 29, 2004

David Trimble has accused human rights groups of

"being complicit in the murder of innocent victims...

One of the great curses of this world is the human rights industry"

Amnesty's repsonse:

"The threat of terrorism must never be used as an excuse for abus ing people's human rights. David Trimble should remember that human rights organisations have condemned killings and other abuses by terrorist groups all over the world, while at the same time criticising governments who use the 'war on terror' as a pretext to abuse their citizens."
Disney have been in court again, this time with Roger Rabbit creator, Gary Wolf, who doesn't think he's getting his fair share of the reciepts from the commercialisation of his creation. It parallels the long running Slesinger case over the Winnie the Pooh takings. Looks like the Appeal Court sided with Wolf.

Meanwhile Google are heading to court in a trademark dispute with American Blind and Wallpaper Factory over selling keyword ads.
Thomas Goetz at Wired is predicting that the US businesses grounded in intellectual property will go the way of the erstwhile US shipping industry, if they don't stop focussing on extreme protectionism as the way to deal with new technology.

In the case of the shipping companies, he says:

"The US fleet was a classic victim of the efforts to save it. Rather than adapt to new economics, the American
industry suffocated under overregulation and protectionism. Now the job gets done - goods move efficiently from place to place - but it's a rogue's business, rife with ne'er-do-wells and pirates."

Larry Lessig, in the same issue of Wired, takes politicians to task for exploiting the general public's ignorance of economics in relation to developing versus developed world price discrimination on drugs.

There is no easy way out of this one. The economists' dream world is one of perfect price discrimination where everybody pays what the market will bear. Drug companies use their patent monopolies to generate revenues for profits and recover their R&D costs. They can't sell at high prices and huge profit margins in the developing world because the market will not bear it - people just can't afford it. So they sell the drugs at a premium in the developed world. With today's so called global markets, though, people in one area can justifiably ask the question as to why they should pay more than those in another area of the world. Economists will answer - because you can afford to. And that is a completely unsatisfactory to most of of us. But but but, we ask, why should I pay a premium when someone else can get them cheaper. I can just fly to Africa, buy a large batch and take them home with me and still have it work out cheaper - what the economists call arbitrage.

So when the free market absolutionists cry leave it to the market, the question I guess is, which free market? The producer-loaded one with perfect price discrimination or the customer loaded one with perfectly informed global consumer discrimination? A similar question goes to the anti-capitalist perspective - how can drug companies supply the need for medicines fairly across the globe and still generate respectable (or even optimum) revenues.

Information economics and intellectual property's place in it is a complex business. I don't have an answer and though there are models which help work out optimising theories, we live in an imperfect world.
Cory Doctorow has been getting passionate about the false choices of DRM, in response to a blog entry from Scoble at Microsoft:

"Well, says Scoble, all of the music that we buy from these legit services is going to have DRM use-restriction technology ("See, when you buy music from a service like Apple's iTunes or Napster (or MSN), it comes with DRM attached."). So the issue becomes "choosing between two competing lockin schemes."

And in that choice, says Scoble, Microsoft wins, because it has more licensees of its proprietary, lock-in format. That means that when you want to play your music in your car, it's more likely that you'll find a car-stereo manufacturer that has paid Microsoft to play Microsoft music than that you'll find one that has coughed up to Apple to play Apple music...

In this world where we have consumer choices to make, Scoble argues that our best buy is to pick the lock-in company that will have the largest number of licensees.

That's just about the worst choice you can make.

If I'm going to protect my investment in digital music, my best choice is clearly to invest in buying music in a format that anyone can make a player for. I should buy films, not kinetoscopes. I should buy VHS, not Betamax. I should buy analog tape, not DAT.

Because Scoble's right. If you buy Apple Music or if you buy Microsoft Music, you're screwed if you want to do something with that music that Apple or Microsoft doesn't like.

Copyright law has never said that the guy who makes the records gets to tell you what kind of record player you can use. If Scoble and his employer want to offer a product with "features" that their customers want, those features should reflect what their customers want: No Windows user rolled out of bed this morning and said, "I wish there was a way that I could get Microsoft to deliver me tools that allow me to do less with the music I buy...

No, the "customer" for Microsoft DRM is the guy who makes the records: the music industry; and not the gal who buys the records: you. That customer has already told Microsoft how it feels about its products: in the Broadcast Flag negotiation, the movie companies locked Microsoft DRM out of consideration for use in next-generation PVRs in favor of DRM that Sony (also a movie company, surprise, surprise) had a patent for.

Microsoft is selling out its customers to people who aren't even buying. Scoble points out that Microsoft licensed the hell out of its OS to hardware vendors, pioneering a new kind of open-ness. He's right. Microsoft set a good example that Apple has been too stupid to follow, and it's time for the company to do it again. When Microsoft shipped its first search-engine (which makes a copy of every page it searches), it violated the letter of copyright law. When Microsoft made its first proxy server (which makes a copy of every page it caches), it broke copyright law. When Microsoft shipped its first CD-ripping technology, it broke copyright law.

It broke copyright law because copyright law was broken. Copyright law changes all the time to reflect the new tools that companies like Microsoft invent. If Microsoft wants to deliver a compelling service to its customers, let it make general-purpose tools that have the side-effect of breaking Sony and Apple's DRM, giving its customers more choice in the players they use. Microsoft has shown its willingness to go head-to-head with antitrust people to defend its bottom line: next to them, the copyright courts and lawmakers are pantywaists, Microsoft could eat those guys for lunch...

But forget Microsoft, because Scoble's not talking about the best thing for Microsoft, he's talking about the best thing for you. The best way to protect your investment in music. Without a doubt, the best way to protect that investment is to only buy music that isn't in a lock-in format, and to break the locks on any music you do own, while you can..."

Wednesday, January 28, 2004

James Grimmelmann is back at Lawmeme and sharp as ever.

I hadn't seen the DVD he mentions, so it's interesting to hear such a high profile director encouraging creative re-use of his work.
There's an interesting interview with Michael Weiss, the ceo of StreamCast (Morpheus) in the eCommerce Times. He's not a fan of the music industry:

"Somehow, the RIAA has taken music's freewheeling image of rebellion and rock 'n' roll and turned it on its head. In their quest to control distribution, pricing and technological innovation, the major record labels and the RIAA have embarked on a journey filled with false accusations and half-truths. In an attempt to portray P2P file sharing as the root of all that is evil with society, the RIAA has resorted to lying to the American public and deceiving Congress.

There are solutions that can be worked out to ensure that artists and copyright holders get paid for their works, such as compulsory licensing. However, the RIAA appears to be more interested in compulsive litigation."

On the uses of P2P:

"There are so many great uses for distributed P2P technology, ranging from searching to content distribution to communications. One of the best uses is the enabling of free expression, free from the censorship of oppressive governments and the de facto censorship of news, information and political speech by the consolidation of media and news companies in the control of the entertainment and media conglomerates."

Last week they interviewed Sharman Networks (Kazaa) CTO, Phil Morle. He doesn't rate Morpheus:

"Morpheus ceased to be our main competitor, or indeed a trusted solution for users, a long time ago. eDonkey/Overnet is a strong competitor. They have cool technology and millions of users. I am consistently impressed with their releases that show a passion for P2P and what it can accomplish.

I am also surprised that Shareaza stays under the radar. Mike, who develops it, is a very ambitious young man, and I have to wonder when he sleeps. Shareaza is a well-made application that is a pleasure to use."

He doesn't like the music industry either:

"I have the benefit of many years thinking about P2P and its potential, and they have not got past the stage of fear. I am naturally disappointed that we are all wasting time and money on futile legal battles when everyone
could be growing their businesses and benefiting users today."

He seems to find the issue of privacy a problem because it interferes with the performance of the technology,
people don't have anything to hide and if they did we shouldn't facilitate it:

"Where I differ from some other file-sharing CTOs is that I don't believe users have anything to hide. Creating default "darknets" through technology defines the purpose of the network as illegal and encourages a certain kind of activity. This is not what we are here for because P2P is an enabling technology for all and not somewhere to hide. The modules found in Kazaa Lite that claim to bring privacy to the user can cause problems with other Internet applications, decrease the performance of the software and are ultimately possible to work around"

Interesting similarities and contrasts.

Tuesday, January 27, 2004

AP are reporting that "A federal judge has declared unconstitutional a portion of the USA Patriot Act that bars giving expert advice or assistance to groups designated foreign terrorist organizations."

Monday, January 26, 2004

Napster creator Shawn Fanning is working on a new venture, Sno-Cap to help record companies make money from p2p file sharing.
"Snocap's plan, which involves identifying music files being traded through file-swapping networks and then attaching a price tag to them, is resonating well with music industry executives. "
I like this story: Taking the Stuffing Out of Microsoft. It really does take intellectual property lawyers to create a legal battle between a software giant and a feather company.
The latest chapter in a long running dispute over the merchandising rights to Winnie the Pooh, closed in a Federal Appeals court on 15th January. The court blocked A.A. Milne's grandaughter's attempts to reclaim the rights from the Slesinger family.

Disney are backing Claire Milne because they are in dispute with the Slesingers over non payment of royalties. The case will continue as the court refused to rule on the substance of Milne's claims until the rights of Ernest Shepard's heirs could be sorted out. Shepard was the illustrator of the original stories.

Another children's character, Peter Pan, is the focal point of a transatlantic copyright dispute between Canadian author Emily Somma and the Great Ormond Street Hospital lawyers. It's a long story but briefly Ms Somma wrote and published a book in the US and Canada about Peter Pan growing up. Lawyers for the hospital's trustees want her to stop distributing the book, because under a 1988 copyright law the UK Parliament has granted the hospital a perpetual "right to a royalty" for "the public performance, commercial publication, broadcasting or inclusion in a cable programme service" of "the play 'Peter Pan' ... or of any adaptation of that work."

Peter Pan originally appeared in J.M.Barrie's book, The Little White Bird, published in 1902, the copyright of which has now expired. So Emily Somma believes she should be able to produce a derivative work. It seems she also offered to pay the hospital trustees a proportion of the royalties from the sales of her book.
Given that under US or Canadian law she would not be required to do this, it seems a pretty fair gesture.

It looks as though the lawyers are locked into an all or nothing mode which will just end up costing everybody. One of those cases that you would hope would never go to court.

The Stanford Cyberlaw Clinic maintains a faq on the case. Elizabeth Rader is acting as Ms Somma's lawyer.