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Yes, that's right Jack.. And when VCR's came out, we were in the theaters bootlegging a million movies a day. :rolleyes:

Reading the hill hearings and movie exec testimony around the time of the Betamax case produce a heavy feeling of déjà vü. Most - if not all - of the arguments used now were used then also. The only difference is that they were playing on anti-jap sentiments then while they are attacking spotty teen-age swashbuckling pirate nerds today. (video tapes will magically be able to store 100 hours of video, fast-forward through commercials is theft, people won't go to the cinema no more, etc...)

See John Gilmore's court case against the FAA for requiring ID of passengers. The CAPPS I program is why they demand your ID -- so they can run you through the CAPPS I database. FAA ID suit

What's more, they probably want to make it possible to use existing VHS recorders, because otherwise people will go out & get TiVos and DVD recorders and other things that will make it very easy to exchange Content with all their eyepatch-wearing friends. If the VCR works, the TV will too. I wouldn't worry about throwing out that tube just yet...

What's more, they probably want to make it possible to use existing VHS recorders, because otherwise people will go out & get TiVos and DVD recorders and other things that will make it very easy to exchange Content with all their eyepatch-wearing friends. If the VCR works, the TV will too. I wouldn't worry about throwing out that tube just yet...

How did you get caught, from your point of view ?

Because that involved the FBI and a lot of people worldwide, there should have been some indications that troubles where coming, or did they manage to stay in stealth mode until they hit?

From what us non-insiders know of, a hacker group is somewhat organized with different isolated layers, and very few connections between those layers, but the one needed to make it works. This ends up beeing a kind of CIA-like organisation, more or like.

Of course, the very nature of internet greatly help that, but i'm wondering : from an insider point of view, did this kind of organisation just "emerge", or where you briefed by someone else?

Of course, the lwa-enforcment greatly over-estimated the importance of DrinkOrDie. They need to justify the tax-payer money they are throwing out of the window: see some interesting file.

.
To regulate interstate commerce in certain devices by providing for private sector development of technological protection measures to be implemented and *enforced* by Federal regulations to protect digital content and promote broadband as well as the transition to digital television, and for other purposes.

full text

(also see http://www.digitalconsumer.org/cbdtpa/ )

When laws such as CBDTPA will be passed, you will not be able to "disable" TCPA and install anything but a TCPA compliant OS, like Palladium or maybe some DRM Linux from HP http://cryptome.org/tcpa-rja2.htm

The worst of all is that people will be forced to use Palladium or TCPA machines, when laws like CBDTPA (the former SSSCA) will be passed.

Thus, sooner or later, the right to share will be outlawed, and people will no longer be able to "turn DRM off".

When no TCPA-free or Palladium-free hardware will be available and the ISPs will only allow TCPA machines to be connected to the Internet, there will be no alternative.

The worst of all, most of the people are totally unaware that many of their freedoms are about to be stolen.

For an introduction see:

http://action.eff.org/tinseltown/

http://www.eff.org/IP/SSSCA_CBDTPA/

TCPA / Palladium Frequently Asked Questions

http://www.cl.cam.ac.uk/users/rja14/tcpa-faq.html

"The Right to Read" by Richard M. Stallman.

http://www.fsf.org/philosophy/right-to-read.html

(The important thing about this story is that it was written before the DMCA was even proposed!)

"What's Wrong With Copy Protection" by John Gilmore.

http://cryptome.org/jg-wwwcp.htm

No! In fact, death is only a threat if the Content Cabals get their way. In that case, they will in all likelihood kill off (severely reduce) both Tech Sector profits and their own. On the other hand, if by some miracle they give up and grant their customers fair use rights to digital content, they will (contrarily) end up making more money than ever before.

Demonstrating this point is as easy as looking back at the last few distribution revolutions. VCRs? We've already got Valenti's famous serial-killer quote, but thank goodness he didn't get his way - video rentals have been big business for the studios ever since the Supreme Court ruled the VCR legit.

Going back further: Were audio cassettes the bane that the music industry feared, way back in the age of disco when Home taping was killing music? I didn't think so.

And prior even to that: Think television, think radio, think... the printing press. Did publishers make more money before, or after, Gutenberg?

Returning to the present age, is it even clear that Napster, that glorious window onto the world of music as a whole, undivided and beautiful and ever-surprising - was it indeed a bad thing, or was it perhaps free-marketing the music itself? And at the same time, oh look, those copy-protected CDs don't seem to be selling so good.

What I'm getting at here is that discussions of this issue often degenerate rapidly into an us-vs-them mentality. Which in a way makes sense, since the --AA's are a bunch of raving lunatics, who want to lock people up for sharing music after first DOS'ing their computers. But looked at from a different perspective, they're just lost sheep in need of some direction - a little guidance from those of us who actually live with, embrace, and explore the technological frontiers.

In other words, people paint the conflict as win-lose. But it's not: it's a choice we have, as a society: win-win, or lose-lose.

-Renard

CBDTPA & other such future laws will outlaw information sharing. They will forbid the fundamental right to share. It is very important to understand this process.

(1) "The Right to Read" by Richard M. Stallman.

http://www.fsf.org/philosophy/right-to-read.html

(The important thing about this story is that it was written before the DMCA was even proposed!)

(2) "What's Wrong With Copy Protection" by John Gilmore.

http://cryptome.org/jg-wwwcp.htm

(3) "Re-evaluating Copyright: The Public Must Prevail" by Richard M. Stallman.

http://www.fsf.org/philosophy/reevaluating-copyrig ht.html

What is copyright, and what is it meant to accomplish? How can we tell whether it is meeting its goals?

This was also written before the DMCA; Stallman argued that copyright law had _already_ gone too far.

(4) Sold Out, By James Boyle

http://www.wcl.american.edu/pub/faculty/boyle/sold _out.htm

The era "free as in freedom" is over. The new CBDTPA / TCPA / Palladium era is about to begin.

Ross Anderson on TCPA
http://cryptome.org/tcpa-rja2.htm

TCPA / Palladium Frequently Asked Questions
http://www.cl.cam.ac.uk/users/rja14/tcpa-faq.html

Microsoft Digital Rights Management Operating System - US Patent No. 6,330,670
http://cryptome.org/ms-drm-os.htm

Microsfot Digital Rights Management Operating System - US Patent No. 6,327,652
http://cryptome.org/ms-drm-os2.htm

Hollings' CBDTPA = TCPA Enablement Act
http://cryptome.org/tcpa-fritz.htm

Some very interesting quotes from the above documents:

"During my investigations into TCPA, I learned that HP has started a development program to produce a TCPA-compliant version of GNU/linux. I couldn't figure out how they planned to make money out of this. On Thursday, at the Open Source Software Economics conference, I figured out how they might.

Making a TCPA-compliant version of GNU/linux (or Apache, or whatever) will mean tidying up the code and removing whatever features conflict with the TCPA security policy. The company will then submit the pruned code to an evaluator, together with a mass of documentation for the work that's been done, including a whole lot of analyses showing, for example, that you can't get root by a buffer overflow.

The business model, I believe, is this. HP will not dispute that the resulting `pruned code' is covered by the GPL. You will be able to download it, compile it, check it against the binary, and do what you like with it. However, to make it into TCPA-linux, to run it on a TCPA-enabled machine in privileged mode, you need more than the code. You need a valid signature on the binary, plus a cert to use the TCPA PKI. That will cost you money (if not at first, then eventually).

Anyone will be free to make modifications to the pruned code, but in the absence of a signature the resulting O/S won't enable users to access TCPA features. It will of course be open to competitors to try to re-do the evaluation effort for enhanced versions of the pruned code, but that will cost money; six figures at least. There will likely be little motive for commercial competitors to do it, as HP will have the first mover advantages and will be able to undercut them on price. There will also be little incentive for philanthropists to do it, as the resulting product would not really be a GPL version of a TCPA operating system, but a proprietary operating system that the philanthropist could give away free. (There are still issues about who would pay for use of the PKI that hands out user certs.) The need to go through evaluation with each change is completely incompatible with the business model of free and open source software."


So make sure you tell everyone you know to prepare for the future.

The Stuckist Net
http://www.theregister.co.uk/content/6/26740.html
http://www.theregister.co.uk/content/35/26796.html

The era "free as in freedom" is over. The new CBDTPA / TCPA / Palladium era is about to begin.

Ross Anderson on TCPA
http://cryptome.org/tcpa-rja2.htm

TCPA / Palladium Frequently Asked Questions
http://www.cl.cam.ac.uk/users/rja14/tcpa-faq.html

Microsoft Digital Rights Management Operating System - US Patent No. 6,330,670
http://cryptome.org/ms-drm-os.htm

Microsfot Digital Rights Management Operating System - US Patent No. 6,327,652
http://cryptome.org/ms-drm-os2.htm

Hollings' CBDTPA = TCPA Enablement Act
http://cryptome.org/tcpa-fritz.htm

Some very interesting quotes from the above documents:

"During my investigations into TCPA, I learned that HP has started a development program to produce a TCPA-compliant version of GNU/linux. I couldn't figure out how they planned to make money out of this. On Thursday, at the Open Source Software Economics conference, I figured out how they might.

Making a TCPA-compliant version of GNU/linux (or Apache, or whatever) will mean tidying up the code and removing whatever features conflict with the TCPA security policy. The company will then submit the pruned code to an evaluator, together with a mass of documentation for the work that's been done, including a whole lot of analyses showing, for example, that you can't get root by a buffer overflow.

The business model, I believe, is this. HP will not dispute that the resulting `pruned code' is covered by the GPL. You will be able to download it, compile it, check it against the binary, and do what you like with it. However, to make it into TCPA-linux, to run it on a TCPA-enabled machine in privileged mode, you need more than the code. You need a valid signature on the binary, plus a cert to use the TCPA PKI. That will cost you money (if not at first, then eventually).

Anyone will be free to make modifications to the pruned code, but in the absence of a signature the resulting O/S won't enable users to access TCPA features. It will of course be open to competitors to try to re-do the evaluation effort for enhanced versions of the pruned code, but that will cost money; six figures at least. There will likely be little motive for commercial competitors to do it, as HP will have the first mover advantages and will be able to undercut them on price. There will also be little incentive for philanthropists to do it, as the resulting product would not really be a GPL version of a TCPA operating system, but a proprietary operating system that the philanthropist could give away free. (There are still issues about who would pay for use of the PKI that hands out user certs.) The need to go through evaluation with each change is completely incompatible with the business model of free and open source software."


So make sure you tell everyone you know to prepare for the future.

The Stuckist Net
http://www.theregister.co.uk/content/6/26740.html
http://www.theregister.co.uk/content/35/26796.html

The era "free as in freedom" is over. The new CBDTPA / TCPA / Palladium era is about to begin.

Ross Anderson on TCPA
http://cryptome.org/tcpa-rja2.htm

TCPA / Palladium Frequently Asked Questions
http://www.cl.cam.ac.uk/users/rja14/tcpa-faq.html

Microsoft Digital Rights Management Operating System - US Patent No. 6,330,670
http://cryptome.org/ms-drm-os.htm

Microsfot Digital Rights Management Operating System - US Patent No. 6,327,652
http://cryptome.org/ms-drm-os2.htm

Hollings' CBDTPA = TCPA Enablement Act
http://cryptome.org/tcpa-fritz.htm

Some very interesting quotes from the above documents:

"During my investigations into TCPA, I learned that HP has started a development program to produce a TCPA-compliant version of GNU/linux. I couldn't figure out how they planned to make money out of this. On Thursday, at the Open Source Software Economics conference, I figured out how they might.

Making a TCPA-compliant version of GNU/linux (or Apache, or whatever) will mean tidying up the code and removing whatever features conflict with the TCPA security policy. The company will then submit the pruned code to an evaluator, together with a mass of documentation for the work that's been done, including a whole lot of analyses showing, for example, that you can't get root by a buffer overflow.

The business model, I believe, is this. HP will not dispute that the resulting `pruned code' is covered by the GPL. You will be able to download it, compile it, check it against the binary, and do what you like with it. However, to make it into TCPA-linux, to run it on a TCPA-enabled machine in privileged mode, you need more than the code. You need a valid signature on the binary, plus a cert to use the TCPA PKI. That will cost you money (if not at first, then eventually).

Anyone will be free to make modifications to the pruned code, but in the absence of a signature the resulting O/S won't enable users to access TCPA features. It will of course be open to competitors to try to re-do the evaluation effort for enhanced versions of the pruned code, but that will cost money; six figures at least. There will likely be little motive for commercial competitors to do it, as HP will have the first mover advantages and will be able to undercut them on price. There will also be little incentive for philanthropists to do it, as the resulting product would not really be a GPL version of a TCPA operating system, but a proprietary operating system that the philanthropist could give away free. (There are still issues about who would pay for use of the PKI that hands out user certs.) The need to go through evaluation with each change is completely incompatible with the business model of free and open source software."


So make sure you tell everyone you know to prepare for the future.

The Stuckist Net
http://www.theregister.co.uk/content/6/26740.html
http://www.theregister.co.uk/content/35/26796.html

The era "free as in freedom" is over. The new CBDTPA / TCPA / Palladium era is about to begin.

Ross Anderson on TCPA
http://cryptome.org/tcpa-rja2.htm

TCPA / Palladium Frequently Asked Questions
http://www.cl.cam.ac.uk/users/rja14/tcpa-faq.html

Microsoft Digital Rights Management Operating System - US Patent No. 6,330,670
http://cryptome.org/ms-drm-os.htm

Microsfot Digital Rights Management Operating System - US Patent No. 6,327,652
http://cryptome.org/ms-drm-os2.htm

Hollings' CBDTPA = TCPA Enablement Act
http://cryptome.org/tcpa-fritz.htm

Some very interesting quotes from the above documents:

"During my investigations into TCPA, I learned that HP has started a development program to produce a TCPA-compliant version of GNU/linux. I couldn't figure out how they planned to make money out of this. On Thursday, at the Open Source Software Economics conference, I figured out how they might.

Making a TCPA-compliant version of GNU/linux (or Apache, or whatever) will mean tidying up the code and removing whatever features conflict with the TCPA security policy. The company will then submit the pruned code to an evaluator, together with a mass of documentation for the work that's been done, including a whole lot of analyses showing, for example, that you can't get root by a buffer overflow.

The business model, I believe, is this. HP will not dispute that the resulting `pruned code' is covered by the GPL. You will be able to download it, compile it, check it against the binary, and do what you like with it. However, to make it into TCPA-linux, to run it on a TCPA-enabled machine in privileged mode, you need more than the code. You need a valid signature on the binary, plus a cert to use the TCPA PKI. That will cost you money (if not at first, then eventually).

Anyone will be free to make modifications to the pruned code, but in the absence of a signature the resulting O/S won't enable users to access TCPA features. It will of course be open to competitors to try to re-do the evaluation effort for enhanced versions of the pruned code, but that will cost money; six figures at least. There will likely be little motive for commercial competitors to do it, as HP will have the first mover advantages and will be able to undercut them on price. There will also be little incentive for philanthropists to do it, as the resulting product would not really be a GPL version of a TCPA operating system, but a proprietary operating system that the philanthropist could give away free. (There are still issues about who would pay for use of the PKI that hands out user certs.) The need to go through evaluation with each change is completely incompatible with the business model of free and open source software."


So make sure you tell everyone you know to prepare for the future.

The Stuckist Net
http://www.theregister.co.uk/content/6/26740.html
http://www.theregister.co.uk/content/35/26796.html

No doubt because people can easily use their VCRs to pirate movies. I guess Jack Valenti was right after all.

...wasn't this DRM version cracked last year, and wasn't the crack source and executable made available? The article mentions Windows Media Player 7, as does the "technical discussion". I won't say what to do, but I think there might be a connection here... ;-)

Q. Why is anonymity so important to the right to travel?

Most travel is for meeting other people. I fly to see my family, you fly on business, she flies to meet her best friend, he flies for a romantic vacation with his sweetheart, she flies to a conference, they fly to a political event. Meeting with people is part of "free association", which just means being free to associate with whoever you want to.

Undemocratic governments traditionally try to prevent people from associating anonymously, because most credible challenges to government policies occur from groups of people who meet and agree to work together. Racist Southern states passed laws 50 years ago to require the National Association for the Advancement of Colored People to give its membership list to the state -- so that the members could be harassed or killed by Ku Klux Klan members who were often local racist politicians and law enforcement officers. The Supreme Court struck down those laws. The NAACP was able to gather broad support for changing our racial policies, and we had a relatively peaceful transition to a much less racist society. These racist governments wanted to scare people away from joining the reform movements, either by harassing existing members, or by making people afraid to join. If they had gotten their way, we would still have terrible racial policies, or the people most affected by those policies would have had to resort to violence to get the policies changed. If the government had a database tracking the movements of NAACP leaders and those who attended its rallies and events, then the government could harass the organization without ever getting the membership list.

In addition, the First Amendment gives us the right to petition our government for redress of grievances. We can petition anonymously, and sometimes we must, when seeking to change draconian laws that the government would like to apply to us. A small number of the people who protested the WTO in Seattle were violent, but that is no excuse for seeking to identify WTO protesters in general, or to prevent them from traveling to the next anti-WTO protest. If the government could track everyone who flew to Seattle that week, and mark them as suspected terrorists, then their freedom to anonymously petition would be violated.

As Americans, we are pretty smug about our freedom; we don't even think about how we would take it back if suddenly a planned demonstration or political meeting was "canceled" because 90% of the attendees had been mysteriously stopped from flying or driving or taking the train or bus to attend. But the "transportation security" system and the profiling and databases behind it are all poised and ready to do exactly that. All it will take is a bureaucrat or politician who says "Do it", because all the mechanisms will already be built. It was only 60 years ago that hundreds of thousands of Americans were imprisoned solely for their Japanese cultural heritage. Only 40 years ago that anti-war and civil rights protesters were bugged, followed, smeared, arrested, impersonated, and disrupted by the supposedly lawful government. Only 30 years ago that a Republican President was bugging the Democratic National Committee. Only ten years ago that our prison population was half what it is today, with the increase coming from imprisoning black and Latino innocents over victimless crimes like drug use. Only two years ago that a Presidential election was stolen. I'm not talking about a banana republic somewhere else; I'm talking about our own country. Abuse of government surveillance, and suppresison of unpopular minorities, are documented facts right here in the US, not unrealistic or remote fears.

Hey now....

Let me at least get my replicated food and whatnot before we start worrying about hordes of nanotech devices co-opting my mind.

Nanotech weapons do pose a rather nasty threat to society. But then so do chemical, biological, and nuclear weapons. But lets look at the biological ones.

A biological weapon is self replicating, just like a nanotech one. It kills indescriminantly (at least the good ones do) just like a nanotech device (designed to do that). It spreads from person to person, often in large quantities. Yea... nanotech too.

But wait... You can develop your VERY OWN biological arsonal for less than $10,000!!!! Nanotech costs a bit more than that.

Yes, a nanotech plague could someday wipe humanity from the earth. I won't argue that. I'm sure it's a possibility (however distant). But more to the point, a perfectly natural biological plague has the potential to do the same... to say nothing of what happens when mankind starts messing with that plague in an attempt to make it even more vicious.

A little recomended reading on this topic

Biohazard by Ken Alibek
The Demon In the Freezer

Karl is just exercising his rights as a director of ICANN:

Having considered the applicable law and the undisputed facts presented herein, the court concludes that paragraphs 3, 5, and 6 of the Inspection Procedures conflict with section 6334 and Art. V, 21 of the Bylaws by unreasonably restricting directors' access to corporate records and depriving directors of inspection rights afforded them by law.

Some information is confidential (like certain parts of the TLD applications). Karl can't just make all the ICANN documents public information. The court finding was very clear on this. But the court finding does put the burden on ICANN to prove that information should remain confidential.

The EFF has the court ruling in HTML thanks to Cryptome. You can also read the press release.

In the 1982 House Hearing on Home Recording of Copyrighted Works Jack Valenti said:
I know of no technological device at this time that would bar taping in the home and if it did exist, it would only be a matter of days before the Japanese manufacturers would have an override piece of equipment on their machine and you would start from ground zero again.

So why is he trying to force such a thing now?

It's nice to know that you're so easily snowed by Jack Valenti. This "consumer friendly" individual you seem so impressed by is the same man who is Congressional testimony in 1982 declared about the VCR: "I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." (1, 2) I'm confused; when exactly was the last serial murder conviction for a VCR? Or a PVR? DVD burner?

I unfortunately missed this conference. One session I really wanted to see was John Young and Deborah Natsios of Cryptome.org & Cartome.org which happened on Friday (probably before Michael got there, I'd guess).

John slings information (in his spare time, he's an architect!) and makes trouble better than most people who claim to do it for a living. (Proof is in the form of an NSA robot which combs his site every morning.) Anyone who saw the talk, please post! John isn't a boring guy, so I'll bet it was good.
JMR

(As always, speaking ONLY for Jim Ray!!!)

It is already legal to record anything shown on TV for personal use so I don't see how this extra 'bit flag' could become a reality...

You don't mean "already". You mean "currently (despite the efforts of the MPAA)".

I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.
--Jack Valenti, testimony to Congress, 1982.

2001: US prerecorded videocassette sales are approximately $4 billion.

• Pozzo and Gray first proposed signed executables for the Locus distributed system in 1986 .
• The IBM 4758 uses a signed package mechanism to load executables into the device, Smith and Weingart, 1990.
• Arbaugh built a mechanism for signed executables for SunOS and then FreeBSD in 1994.

Yep, here you go. She cracked it herself shortly after it was publicised, the method is detailed in the appendix.

Also here's a link to the press release this guy's university published on his work. Although, come to think of it, it looks quite familiar. Is this a repeated story?

Obviously, with titles like these, he must be an ignorant Microsoft toady. On the other hand, Thomas C Greene, who has never spoken with anybody involved with the project, knows everything about it and what it is really about.

For Thomas C. and everyone who is interested, there is an interview describing many technical aspects with the chief of Palladium development team at DigitalIdWorld.

How Palladium, or better its clone TCPA, can work with Linux and GPL you can read here .

Cheers, jl

Senator Fritz Hollings (Democrat, South Carolina)
Check out who is sponsoring sssca. hrm Democrat.. democrat... democrat... democRAT

Heh
Looks like you are REALLY educated on this issue. I respect your opinion.

See this article. If someone can get your fingerprint, he can make a "fake finger" out of gelatin with your fingerprint on it, put it over his own finger, and then eat the evidence.

Go read the redacted USSID (United States Signals Intelligence Directive) covering this issue USSID 18, Dept Of Defense Order 5240.1-R as operant at the NSA. Its missing chunks, but a lot fo the important stuff is there for you to look at. These documents(USSIDS) are the legal basis for all operations of the NSA. As an employee of the NSA or a military analyst assigned ther, you obey these things or get put in jail.

Some comparisons in his rhetoric and how it has (not) changed...

"I am just a simple caveman..."

Valenti, 1982 - I am not a lawyer; I beg to ask the forgiveness of all of you in the UCLA Law School. If I was smart enough maybe I would have been a lawyer and then I would feel more comfortable about presenting this case. "

Valenti, 2000 - "I am not a lawyer. I wanted to be one; go to Harvard Law School. Ended up at Harvard Business School - if I am arrogant, that's what they taught me - haha. "

"We are a poor industry..."

Valenti, 1982 - "Now, let me tell you something about the high-risk business that we are in. This may be one of the most precarious business enterprises which a man or a woman can enter. Movie making is a high-risk business. Let me cite you some examples. The average film costs $20 million...And 6 out of 10 films do not retrieve their total investment period. Now, what are you going to do right on top of that? There is going to be a VCR avalanche."

Valenti, 2000 - "For the movie business in the Internet era, a threat on opening nights is someone copying the new movie and sending it out over the Internet. An average movie costs $52 million to make. Only two in ten ever profit from theatre sales."

Demonizing the perceived Enemy as "deadly", "pirates", "stranglers", "terrorists", etc.

Valenti, 1982 - "I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

Valenti, 1982 - "The public interest is at stake here. It is the public interest that you have by solemn oath sworn to serve because what I am talking about and what the rest of these witnesses are talking about is making it possible for a steady stream of quality entertainment to reach people through their television sets....

Valenti, 1997 - "It was a historic meeting...a first-time commitment of full government support at the highest level of the Russian leadership to a long-term plan to decrease surely and radically the deadly hold of pirates on the intellectual property community

Valenti 2002 - "There are more than nine and a half million broadband subscribers now. Once those large pipes and high-speed access subscribers begin to increase, we can be terrorized by what's going on."

Valenti 2002 - "We're fighting our own terrorist war."

But some things have changed...or have they?

Valenti, 1982 - "Now, these machines are advertised for one purpose in life. Their only single mission, their primary mission is to copy coyrighted material that belongs to other people..."

Valenti, 2000 - " Look at Sony-Betamax. The VCR had substantial non-infringing use. For example if you time-shift (tape now and playback later). But the court in Sony-Betamax did not rule on shifting to ten million people. So watch how you cite Sony-Betamax. Napster is not time-shifting - but sharing with anonymous millions."

Interesting.

W

How about some historical examples to bolster Michael's claim.

What many of the hard-core groups such as the ACLU and the EFF fear is a return to the days of COINTELPRO when the FBI (with the cooperation of the CIA) used it's vast powers to spy on Americans. And to discredit any political group outside of the mainstream. One noteable target was Dr. Martin Luther King. To quote from the Church Commission's report:

"The FBI collected information about Dr. King's plans and activities through an extensive surveillance program, employing nearly every intelligence-gathering technique at the Bureau's disposal. Wiretaps, which were initially approved by Attorney General Robert F. Kennedy, were maintained on Dr. King's home telephone from October 1963 until mid-1965; the SCLC headquarter's telephones were covered by wiretaps for an even longer period. Phones in the homes and offices of some of Dr. King's close advisers were also wiretapped. The FBI has acknowledged 16 occasions on which microphones were hidden in Dr. King's hotel and motel rooms in an "attempt" to obtain information about the "private activities of King and his advisers" for use to "completely discredit" them. " [My Emphasis]

The FBI sought to influence universities to withhold honorary degrees from Dr. King. Attempts were made to prevent the publication of articles favorable to Dr. King and to find "friendly" news sources that would print unfavorable articles. The FBI offered to play for reporters tape recordings allegedly made from microphone surveillance of Dr. King's hotel rooms.

The above quotes are from the final report of the Church Committee (see also Here), a congressional committee set up to investigate the FBI's abuses of power. Out of this investigation arose many of the restrictions that Bush, Ashcroft, and Co. are overturning. These changes and the arguments for them have received opposition from longtime FBI members:

"I feel that certain facts, including the following, have, up to now, been omitted, downplayed, glossed over and/or mis-characterized in an effort to avoid or minimize personal and/or institutional embarrassment on the part of the FBI and/or perhaps even for improper political reasons..."

"Several prominent FBI alumni also blasted Ashcroft's cast-a-wide-net approach to the terrorism investigation, which led to the detention of some 1,200 people, only a dozen of them suspected of having any links with Al Qaeda. The mass arrests were part of a fundamental shift in the bureau's strategy. In the past, the FBI would identify suspected terrorists, move to forestall any immediate threat of violence, then watch the suspects in hopes of cracking an entire cell. Ashcroft's approach, the critics noted, might jeopardize the kinds of investigations that had prevented previous attacks. "We used good investigative techniques and lawful techniques," warned Reagan-era FBI director William Webster, "and we did it without all the suggestion that we are going to jump all over people's private lives."..."

This is what people (quite rightly) fear and what we should be striving against. This is what Prompted Emmanuel Goldstein (editor of 2600) to devote his editorial in the most recent issue to a call to arms against such governance. This is a serious issue and the note that Michael Struck was just right. The FBI stated that carnivore will never collect the wrong information Yet we have admissions of the opposite (see here). In the light of all of this, can you really say that he is wrong?

As always you can contact the ACLU for more.

For some fun side-reading see:

• Amnesty International's 2002 report on the U.S.A.
• NYC Indymedia
• The San Francisco Chronicle
• And, The Register

By the way, I'm the source of at least some of the anecdotes Joel mentions about laptop screens being received on televisions - I no longer have that laptop, but my mom still has the TV :-) It wasn't very good sync, and I was running 640x480, so it wasn't a direct full-screen image and rolled around slowly, but it had clearly recognizable text, and a device built for the purposes of eavesdropping would be able to get the sync right. I suspect that most of the emissions were from the VGA port on the back of the laptop rather than from the LCD circuitry itself, but that's pure guesswork, and the depth of scientific inquiry consisted of looking at the noise on the screen, saying "yes, that looks it's like the text on my computer", and turning the PC off so we could go back to watching TV :-)

> Iridium also provides secure encryption for the military and qualified governmnet users. A nice touch for those that need it.

Yeah, I'm sure the association with the government will assure your privacy.

> Iridium also provides secure encryption for the military and qualified governmnet users. A nice touch for those that need it.

Yeah, I'm sure the association with the government will assure your privacy.

Here are the automatic mirrors: http://www.eu.cryptome.org/echelon2-arch.htm http://www.nl.cryptome.org/echelon2-arch.htm http://www.at.cryptome.org/echelon2-arch.htm

Slashdot needs to figure out some automatic mirroring scheme to avoid shutting down useful sites. Make it available to subscribers only if you have to.

Here are the automatic mirrors: http://www.eu.cryptome.org/echelon2-arch.htm http://www.nl.cryptome.org/echelon2-arch.htm http://www.at.cryptome.org/echelon2-arch.htm

Slashdot needs to figure out some automatic mirroring scheme to avoid shutting down useful sites. Make it available to subscribers only if you have to.

Here are the automatic mirrors: http://www.eu.cryptome.org/echelon2-arch.htm http://www.nl.cryptome.org/echelon2-arch.htm http://www.at.cryptome.org/echelon2-arch.htm

Slashdot needs to figure out some automatic mirroring scheme to avoid shutting down useful sites. Make it available to subscribers only if you have to.

Microsoft just claimed it was - and got away with it. :-(

The key person who did the tests was Ed Curry, and only NT 3.5, service pack 3 got the certification. 3.51 could have gotten it easily in Ed's opinion, but it was never tested. 4.0 failed, badly. (It eventually managed to get a British rating that Microsoft claimed was equivalent - after 6 service packs.)

But Microsoft advertising said that 4.0 had passed, government people called it, and Microsoft methodically destroyed Ed's life until he died of a heart attack. :-(

It's tricky when it comes to software, since it hasn't been determined yet by the courts whether a software sale is a sale of a product or a sale of a license

Yes it has: Softman Products Company LLC v. Adobe Systems Inc. U.S. federal law, 17 USC 101 defines a "copy" as the physical disc on which a computer program is recorded. If the transfer of a copy of a program looks like a sale, walks like a sale, and quacks like a sale, then it's a sale, thus making the "owner of a copy" under 17 USC 117 the person who buys the box.

Some people might chime in and claim that MAI v. Peak nullified 117. I don't think so. The text of the decision interpreted 117 out of context; the case it referenced, Apple v. Formula, involved selling copies, but the facts of MAI v. Peak didn't. (The decision prompted a rider to the DMCA that amended 117 to authorize repair or maintenance of a computer system.) The real copyright infringement seems to have involved the "rental, lease, or lending" of a computer program separate from any hardware in which it may be embedded, and 17 USC 109 prohibits rental of software without authorization of the copyright owner.

Wouldn't it be great if it turns out to be the newest format forIndivBox.key

This is very dangerous and misleading! There's much law which says you are NOT THE OWNER of the copy, and so you are not reading section 117 correctly. I know, it sounds wrong. I know, it sounds illogical. But that's the law. There's no gimmick, no magic.

What about this, which is a court finding that says that despite the EULA, the exchange of money for software is a sale. From the article in question:

"The Court understands fully why licensing has many advantages for software publishers. However, this preference does not alter the Court's analysis that the substance of the transaction at issue here is a sale and not a license," Judge Pregerson writes. If you put your money down and walked away with a CD, you bought that copy, EULA or no EULA.

Here's a link to the full text of the decision.

Unrestricted Warfare by Qiao Liang and Wang Xiangsui was posted on Cryptome awhile back and I actually read the whole thing.

It talks about Chinese military's views on what they call unlimited warfare. What they mean by unlimited warfare is to stop thinking of warfare in conventional terms, I.E. China uses its airforce against America's for example. They want warfare to encompass computer attacks, economic warfare, propaganda, everything imaginable. Economic warfare as we have seen its effects in Iraq can be quite deadly. But the kind of economic warfare CUW focuses on is disrupting other nations financial institutions(like Wall Street, for example) with reserves of Capital just like George Soros and his boys. The economic warfare America conducts on Iraq is a crude form. If a country trades with Iraq while disobeying the American embargo, the United States will use sanctions against the embargo breaker if it is a small nation that America can bully.

1. A contribution for the support of a government required of persons, groups, or businesses within the domain of that government.

If the next version of the Hollings bill (0.1 was called SSSCA; 0.2 was called CBDTPA) mandates a digital rights management operating system on all digital media devices, and Microsoft has a government-granted monopoly on such operating systems, then the U.S. government has in effect delegated its power to regulate operating systems to Microsoft Corporation. In effect, Microsoft becomes a semi-government agency like the US Postal Service, with the power to tax computers.

It actually is a much longer story (and more interesting), you can read it HERE

Sorry to nitpick, but your post demands it.

Laws, by definition, are legal. I think you mean the CBDTPA is unconstitutional.

The Senate is not distinct from Congress, it is a subset. The other half is called the House of Representatives (the House, for short).

Again, Congress can grant itself any legal authority it chooses. Its only restrictions are from its constitutional authority.

Finally, they aren't trying to dictate anything to "the rest of the world". Read the bill. Just dictating things to their own country will suffice. The massive peer pressure the U.S. exerts will either get everyone else to fall into line, or they'll find themselves ostracized by the world community.

Posted by Michael Fraase, 3/23/02 at 9:54:46 PM.

When elephants dance, its best to get out of the way. Thats exactly whats happening now as the entertainment industrythe recording, publishing, and motion picture industries, mainlyattempts a worldwide intellectual property power grab with two distinct targets. Think of it: a coup and a lock on all published content in the same year, amazing isnt it?

Target number 1 is the average customer: anyone who purchases software, an audio CD, an electronic book, or a movie on DVD. The entertainment industry sees customers as pirates, plain and simple. In their collective minds eye, we all have a wooden leg, eye patch, and a filthy talking parrot on our shoulder. While the Constitution grants customers certain rights with regard to copyrighted material, the entertainment industry very much wants to separate us from those rights.

Target number 2 in the sights of the entertainment industry are technology behemoths like Microsoft, Intel, IBM, and Apple. These companies, in the perverse worldview of the entertainment industry, make the toolscomputers mostlythat allow customers to practice their piracy.

Let me point out that I am a copyright owner, as is everyone else who has ever created a work in tangible form. Thats all authors, for short. Authors are almost never members of the entertainment industry club. The entertainment industry hates authors almost as much as they hate customers. Sometimes, especially when authors get uppity, the entertainment industry hates authors much more than customers. Until recently, authors have always been seen to be at least a marginal threat while customers were seen as merely necessary annoyances.

To complicate matters by at least an order of magnitude, the consumer electronics manufacturersthe companies that make stereos, VCRs, and DVD playershave aligned with the entertainment industry. At least some of them, and at least to some extent.

Unfortunately for usboth authors and customerswere likely to get squished as these elephants dance. The intent of the entertainment industry, believe it or not, is to outlaw personal computers. As security and cryptography expert Bruce Schneier explains it to Mike Godwin: If you think about it, the entertainment industry does not want people to have computers; theyre too powerful, too flexible, and too extensible. They want people to have Internet Entertainment Platforms: televisions, VCRs, game consoles, etc.

Copy-protected CDs

The recording industry is selling shiny plastic discs that contain music that cant be copied to or even played on some customers equipment. Philips, the owner of the CD format says these discs cannot be called CDs because they do not meet the standard of what a CD is. Sony, one of those weird hybrid companies that, as a member in good standing of both the technology and entertainment industries, finds itself on both sides of this issue says it cant guarantee the audio quality of these discs. The technology used to protect these discs sometimes prevents the discs from playing on computer CD-ROM drives, DVD players, and other devices specifically designed to play standard audio CDs.

Sales of recorded music are down 10% in the United States over the last year. The recording industry blames this downturn not on the economic recession, not on the crappy music that theyve released in the past few years, but on Internet piracy.

And its only going to get worse. Hilary B. Rosen, president of the Recording Industry Association of America (RIAA) told Congress on 28 February 2001 that the practice of copy-protecting audio CDs would expand in the United States. If technology can be used to pirate copyrighted content, Rosen wrote in her response to a Congressional query, shouldnt technology likewise be used to protect copyrighted content? Surely, no one can expect copyright owners to ignore what is happening in the marketplace and fail to protect their creative works because some people engage in copying just for their personal use. Her pal, Michael Eisner, head of Disney, said he was tired of being finessed by the technology industry, whatever that means.

Unfortunately for Eisner, Rosen, Disney, and the RIAA, personal useand more importantly the rights associated with that use of copyrighted materialis exactly why copying of copyrighted material is not just allowed, but mandated by the Constitution. That some individuals illegally sell copied CDs or distribute copies of the music on the Internet is immaterial. In fact, fairly casual observation indicates that if customers are treated like criminals they will indeed begin to behave like criminals.

It has become common practice for music-loving computer owners to legally transfer audio CDs they purchase to .mp3 format files on their computers. The copy protection technology employed by the recording industry prevents such transfers by adding distortions to the music of the recordings. The industry insists that these distortions are inaudible when the disc is played on a standard CD player but result in pops when the music is transferred to a computer. In any case, its usually impossible to tell whether or not a disc includes the copy protection technology; in general, the copy-protected discs are not labeled.

Ironically, or probably not, .mp3 player manufacturers could easily defeat the copy protection technology, but they fear doing so would risk prosecution under the Digital Millennium Copyright Act (DMCA) which prohibits the bypassing of copy protection systems. In 1999, the Ninth Circuit Court of Appeals ruled that .mp3 players did not violate copyright law because customers have the right to space shift music they have purchased.

Moral rights

Interestingly, the act of using the copy protection technology is much more prevalent in Europe. Most European countries, unlike the United States, recognize an artists moral rights in the work they create.

Moral rights are a package of intellectual property rights granted to the original creator of a work, and include:

• The right of integrity;
• The right of attribution;
• The right of disclosure;
• The right to withdraw or retract; and
• The right to reply to criticism.

These moral rights are separate from the economic copyright that these days generally transfers from an author to a publisher and they can survive the author. The idea originated with the French, who believe that any creative work, by definition, includes the personality and character of the author. Where copyright is a property right that can be transferred, moral rights are part of the authors personality and character and non-transferable.

The first two moral rightsthe right of integrity and the right of attributionare especially important because they are codified as international law in the Berne Convention. The United States claims its intellectual property law complies with the Berne Convention, but this is just two instances where it doesnt.

The most important of these rights is the first, the right of integrity. Basically it prohibits an authors work from being distorted in any way that would harm the authors reputation and dates to the 1957 French law of droit au respect de l'oeuvre. Its a safe bet that a cross-reference over which the author had no control would be seen as a distortion of the work.

Seemingly, in Europe at least, an artist could make an argument against the production of a copy-protected version of her work on the sole basis of moral rights. Especially in the case of an audio CD to which distortion is intentionally added by the publisher.

In the United States, Representative Rick Boucher (D-Virginia) appears to be taking the point position in questioning the behavior of the entertainment industry. He believes that instead of using copyright to obtain fair compensation for the works theyve licensed, the copyright owner industryincluding the recording industryis attempting to exercise complete dominance and total control of the copyrighted work.

And just how much money does an artist receive in the form of royalties? Use Moses Avalons royalty calculator to figure it out.

A DMCA rewrite?

Representative Rick Boucher (D-Virginia) plans to introduce legislation that would regulateand maybe outright bancopy-protected compact discs. Boucher reportedly has concerns about customers buying copy-protected discs without knowing it and the compatibility problems inherent with the copy protection mechanism. In an interview with Wired News, Boucher said, The big problem initially is that consumers have no information that is complete and reliable about the disabilities which attend copy-protected CDs. These CDs will not play in DVD players, not play on personal computers (and) not even play on all CD players.

Boucher isnt talking about what kind of legislation he might introduce to accomplish his goal of protecting audio CD customers, and the possibilities are intriguing. At the simplest level, legislation may require copy-protected CDs to carry a warning label. At a more interesting level, Boucher may try to rewrite the DMCA. In fact, Boucher announced that he would introduce such legislation last July and reiterated his commitment to that approach in early March of this year.

Internet radio

Under the U.S. Copyright Offices interpretation of the DMCA, Internet radio may be a thing of the past. KFJC, KPIG, and RadioParadise may all be goners. Why is this tragic? Because any of these stations are orders of magnitude better than the sorry excuse for radio available on the traditional dial.

Internet radio is routing around an obsolete and unaccountable industrys safely padded environs and making a difference. Corporate radio sounds exactly the same from coast to coast because it is exactly the same. Sit and watch that website for a few minutes; if it doesnt nauseate you, itll damn sure hypnotize you.

Adding to the arsenal of tools deployed by big media is the Copyright Arbitration and Royalty Panel (CARP). CARP met secretly for the past several months and issued the CARP Report in late February. The keystone of this report is steep licensing fees for webcast music. Lets be clear: compulsory licensing is a good idea, consistent with the intent of copyright law. Usury licensing fees for small webcasters is not.

KPIG responded almost immediately with a plea to save the Pig from the digital slaughterhouse:

Independent webcasters such as KPIG are facing a grave threat to our existence. It may be an evil conspiracy on the part of the big record companies and corporate webcasters, ormore likelyits just a dumb mistake. In either case, KPIG could soon be liable for huge music usage fees ($5,000 - $10,000 per month) that would make it impossible for us to stay online. For background on the issue, see The Death of Web Radio? below and the SaveInternetRadio.org website.

Doc Searls, in his article Bizarre vs. Bazaar, eloquently sums up the combination of DMCA and CARP as the destruction of the Net as a commons and its replacement with a plumbing system for the distribution of content (a word hardly used in a shipping context before Big Media got all drooly over The Promise of The Net).

A brief history of copyright

Copyright, until this recent entertainment industry power-grab, has always been a delicatemaybe even precariousbalance between the rights of the author to benefit from his or her work for a short period of time and the rights of the rest of us to innovate and benefit from those works when they fall into the public domain.

The Constitution granted Congress the power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. Originally, the Copyright Act of 1790 established the limited times of copyright protection of 14 years with an option for the author to renew the copyright for an additional 14 years if he or she were still alive. That copyright term was good enough for the first 100 years of intellectual property in the United States. During the next 100 years, Congress extended the copyright term 11 times.

Certain uses of a protected work that would ordinarily be seen as infringing are specifically allowed for education, criticism, etc. These uses are allowed under the fair use provision. The core concept of fair use is that, in general, any use that does not exploit the commercial value of the original is permissible.

The fair use statute recognizes four criteria by which a use can be determined to be fair or unfair:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted wok as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.

William S. Strong, in The Copyright Book: A Practical Guide , provides an interpretation for working writers:

As a general rule a critic or reporter should not quote at any one point more than two or three paragraphs of a book or journal article, a stanza of a poem, or a solitary chart or graph from a technical treatise.

The Net allows ordinary citizens to exercise their fair use rights in ways never imagined by the entertainment industry. Subsequently, the reaction is to pressure innovation by extending the copyright term for any given work. In October, the U.S. Supreme Court will hear a case that will likely determine the legitimacy of the most recent copyright term extension, the Copyright Term Extension Act of 1998. This law extends the copyright term to the life of the author plus 70 years. In the case of works made for hire in which a corporation owns the copyright, the copyright term is now 95 years.

While one side of the entertainment industry was pushing, an activity that eventually became the Copyright Term Extension Act of 1998, the other side was pulling. That activity eventually resulted in the DMCA. Designed specifically to control the uses that can be made of published works, the DMCA makes it illegal to circumvent copyright-protection technology. The result: the entertainment industry controls not only what you see and hear but the methods and devices with which you see and hear it. Even if the copy-protection is circumvented to enable the fair use of a published work, it is prohibited and deemed to be a criminal act.

Digital TV

According to Mike Godwin, digital television is the tipping point in the war between the entertainment and technology industries. Never mind that every time the entertainment industry shoots itself in the foot, the technology industry comes to its rescue. Remember in the 1970s when the movie industry was in a deep funk and that vampire Jack Valenti said that VCRs would kill it for good? As it turns out, the VCR revived the film industry. The film industry was failing not because of customer VCR usage but because they were putting out epically craptacular films. Just like the recording industry todaywhen in doubt blame those dang customers.

Anyway, Godwin says digital television is the flashpoint because its quality (technical, not artistic) is way too good and unlike DVDs, its unencrypted and has to stay unencrypted to be useful. Oh, and the pesky FCC regulations say that broadcast television signals must be sent unencrypted.

The purveyors of digital television think they have the answer: digital watermarks. They think thats the answer for the online distribution of music, and any other digital content as well. Unfortunately for them, in order for a watermark to be used to restrict copying of digital content, consumer devices used to play the content will have to have technology included thats capable of receiving those watermarks. That would require the cooperation of the technology industry, and that cooperation has not been forthcoming.

Godwin cites the theory of Edward Felten, a computer scientist at Princeton, holding that any sort of tagging system that is undetectable by the user will likely be easy to remove.

Digital rights management

Perhaps the weirdest part of all of this is that the technology industry is just as enamored of protecting intellectual property. Theyre just going about it in a minimally different way. Digital rights management (DRM) is the battle cry of the techheads. And where they differ from their entertainment industry brethren is the question of government mandates. The technology industry wants to lock up published content just as badly as the entertainment industry; they just dont want the government (or anyone else) telling them that they have to. Remember that the entertainment and technology industries both lobbied heavily in favor of the DMCA.

And then there are the schizoids, the companieslike AOL Time Warner and Sonythat are so large that they find themselves on both sides of the fence depending which way the wind blows.

SSSCA > CBDTPA

The Security Systems Standards and Certification Act (SSSCA), kept on a leash but regularly trotted out by Senator Fritz Hollings (D-South Carolina), chair of the Senate Commerce Committee, can best be thought of as a sort of appendix to the DCMA. It is clearly designed to further extend legal protections for digital content owned or licensed by enormous media conglomerates.

According to the draft language of the bill, it would be illegal to create or distribute any interactive digital device that does not include and utilize certified security technologies approved by the Commerce Department. Even though MIT professor and RSA Data Security co-founder Ron Rivest has referred to the proposed legislation as the Digital Rectal Thermometer Security Act its really just mandatory corporate welfare for media conglomerates subsidized by the actual creators and consumers of intellectual property.

Felony penalties for distributing copyrighted material without the certified security technologies fully enabled or using a computer that circumvents those technologies are up to five years in prison and fines up to US$500,000.

Even worse, the proposed legislation calls for manufacturers of digital devices and the media conglomerates to collaboratively develop a copy protection system. If, after two years, they cant come up with a mechanism both industries can live with, the federal government will specify a standard. Hollings bill fails to include the actual creators or users of content in any of the machinations.

Should we be surprised that four of Hollings top campaign donors are media conglomerates?

Predictably, the politicians split along party lines over the SSSCA. Or, more accurately, the split is along the lines of entertainment industry campaign contributions. Democrats, who received US$24.2 million in contributions from the entertainment industry tend to support the idea of legislating the protection of copyrighted material in digital form. Republicans, who received a relatively paltry US$13.3 million in entertainment industry contributions usually oppose the SSSCA, claiming it is too interventionist.

In mid-March 2002, the other shoe dropped. Senator Hollings, better known as the Senator from Disney, transformed the SSSCA into the Consumer Broadband and Digital Television Promotion Act (CBDTPA) and ceased his tip-toeing around. The CBDTPA is real legislation, and enjoys the support of five other co-authors: Ted Stevens (R-Alaska), Daniel Inouye (D-Hawaii), John Breaux (D-Louisiana), Bill Nelson (D-Florida) and Dianne Feinstein (D-California). Just think, one more author and they could have been the seven dwarves. The CBDTPA would require all digital deviceseverything from fax machines to MP3 players and computers (as well as the software that runs on them)to be equipped with embedded copy protection schemes, approved by the federal government.

Whats most disturbing about this is relatively paltry sum it took to buy this legislation. During the 2002 election cycle, only two of the dirty half-dozen were in the top 20 recipients of soft money from the entertainment industry. So far in the 2002 election cycle, Hollings has received only US$19,000 and Stevens has taken only US$39,621. To get the real story, we have to look back several election cycles:

Senator

2002

2000

1998

1996

Total

Fritz Hollings (D-South Carolina)

$19,000

$32,750

$215,284

$43,300

$310,334

Ted Stevens (R-Alaska)

$39,621

$69,900

$109,521

Daniel Inouye (D-Hawaii)

$49,852

$49,852

John Breaux (D-Louisiana)

$120,920

$120,920

Bill Nelson (D-Florida)

$47,550

N/A

N/A

$47,550

Dianne Feinstein (D-California)

$211,638

$211,638

$849,815

Theres no question why Fritz Hollings carried the water for this puppy, is there? But check those senatorial links in the table carefully because they tell the even bigger story of who the top contributing industries were for each politician. In every case, the entertainment industry scored big in the top 20 contributors for every Senator. And remember the 2002 campaign cycle isnt over yet. Not hardly.

So, how much does it cost to get your bill through the Senate? Looks to me like itll come in right around US$1 million.

Enter DigitalConsumer.org

The technology industry was quick to respond to the CBDTPA threat by launching DigitalConsumer.org and its attendant Consumer Technology Bill of Rights. Launched by two of the co-founders of Excite, DigitalConsumer.org is basically trying to protect the fair use rights of customers in digital media. The groups principles, outlined in the Bill of Rights are deceptively simple:

1. Users have the right to time-shift content that they have legally acquired.
2. Users have the right to space-shift content that they have legally acquired.
3. Users have the right to make backup copies of their content.
4. Users have the right to use legally acquired content on the platform of their choice.
5. Users have the right to translate legally acquired content into comparable formats.
6. Users have the right to use technology in order to achieve the rights previously mentioned.

The depth and breadth of support this lobbying group will receive remains to be seen. Some of the precepts are in direct conflict with the interests of some of the largest technology industry members. Microsoft, for example, almost certainly wants to be the digital rights management company of record and is none too keen on, say, items 2, 3, 4, and 5.

A solution

The solution is actually quite simple and requires only three steps:

1. Revert the term of copyright to 14 years, immediately and retroactive to all existing works.
2. Recognize moral rights in the works authors create, like every other civilized country on the planet. Make it immediate and retroactive to all existing works.
3. Prohibit any corporation from owning a copyright. Corporations create nothing; theyre consensual hallucinations and exist at our pleasure. I dont know about you, but Im not much pleased any more.

The basis of the problem is found in a single court ruling: Santa Clara County v. Southern Pacific Railroad. In this 1886 dispute, the U.S. Supreme Court found that a private corporation was a natural person under the Constitution and enjoyed the same protections as a citizen under the Bill of Rights. Corporations from that point forward were granted all of the rights and freedoms of a private citizen, yet none of the responsibilities. We made a mistake; hey, shit happens. Its not too late to fix it.

Posted by Michael Fraase, 3/23/02 at 9:54:46 PM.

When elephants dance, its best to get out of the way. Thats exactly whats happening now as the entertainment industrythe recording, publishing, and motion picture industries, mainlyattempts a worldwide intellectual property power grab with two distinct targets. Think of it: a coup and a lock on all published content in the same year, amazing isnt it?

Target number 1 is the average customer: anyone who purchases software, an audio CD, an electronic book, or a movie on DVD. The entertainment industry sees customers as pirates, plain and simple. In their collective minds eye, we all have a wooden leg, eye patch, and a filthy talking parrot on our shoulder. While the Constitution grants customers certain rights with regard to copyrighted material, the entertainment industry very much wants to separate us from those rights.

Target number 2 in the sights of the entertainment industry are technology behemoths like Microsoft, Intel, IBM, and Apple. These companies, in the perverse worldview of the entertainment industry, make the toolscomputers mostlythat allow customers to practice their piracy.

Let me point out that I am a copyright owner, as is everyone else who has ever created a work in tangible form. Thats all authors, for short. Authors are almost never members of the entertainment industry club. The entertainment industry hates authors almost as much as they hate customers. Sometimes, especially when authors get uppity, the entertainment industry hates authors much more than customers. Until recently, authors have always been seen to be at least a marginal threat while customers were seen as merely necessary annoyances.

To complicate matters by at least an order of magnitude, the consumer electronics manufacturersthe companies that make stereos, VCRs, and DVD playershave aligned with the entertainment industry. At least some of them, and at least to some extent.

Unfortunately for usboth authors and customerswere likely to get squished as these elephants dance. The intent of the entertainment industry, believe it or not, is to outlaw personal computers. As security and cryptography expert Bruce Schneier explains it to Mike Godwin: If you think about it, the entertainment industry does not want people to have computers; theyre too powerful, too flexible, and too extensible. They want people to have Internet Entertainment Platforms: televisions, VCRs, game consoles, etc.

Copy-protected CDs

The recording industry is selling shiny plastic discs that contain music that cant be copied to or even played on some customers equipment. Philips, the owner of the CD format says these discs cannot be called CDs because they do not meet the standard of what a CD is. Sony, one of those weird hybrid companies that, as a member in good standing of both the technology and entertainment industries, finds itself on both sides of this issue says it cant guarantee the audio quality of these discs. The technology used to protect these discs sometimes prevents the discs from playing on computer CD-ROM drives, DVD players, and other devices specifically designed to play standard audio CDs.

Sales of recorded music are down 10% in the United States over the last year. The recording industry blames this downturn not on the economic recession, not on the crappy music that theyve released in the past few years, but on Internet piracy.

And its only going to get worse. Hilary B. Rosen, president of the Recording Industry Association of America (RIAA) told Congress on 28 February 2001 that the practice of copy-protecting audio CDs would expand in the United States. If technology can be used to pirate copyrighted content, Rosen wrote in her response to a Congressional query, shouldnt technology likewise be used to protect copyrighted content? Surely, no one can expect copyright owners to ignore what is happening in the marketplace and fail to protect their creative works because some people engage in copying just for their personal use. Her pal, Michael Eisner, head of Disney, said he was tired of being finessed by the technology industry, whatever that means.

Unfortunately for Eisner, Rosen, Disney, and the RIAA, personal useand more importantly the rights associated with that use of copyrighted materialis exactly why copying of copyrighted material is not just allowed, but mandated by the Constitution. That some individuals illegally sell copied CDs or distribute copies of the music on the Internet is immaterial. In fact, fairly casual observation indicates that if customers are treated like criminals they will indeed begin to behave like criminals.

It has become common practice for music-loving computer owners to legally transfer audio CDs they purchase to .mp3 format files on their computers. The copy protection technology employed by the recording industry prevents such transfers by adding distortions to the music of the recordings. The industry insists that these distortions are inaudible when the disc is played on a standard CD player but result in pops when the music is transferred to a computer. In any case, its usually impossible to tell whether or not a disc includes the copy protection technology; in general, the copy-protected discs are not labeled.

Ironically, or probably not, .mp3 player manufacturers could easily defeat the copy protection technology, but they fear doing so would risk prosecution under the Digital Millennium Copyright Act (DMCA) which prohibits the bypassing of copy protection systems. In 1999, the Ninth Circuit Court of Appeals ruled that .mp3 players did not violate copyright law because customers have the right to space shift music they have purchased.

Moral rights

Interestingly, the act of using the copy protection technology is much more prevalent in Europe. Most European countries, unlike the United States, recognize an artists moral rights in the work they create.

Moral rights are a package of intellectual property rights granted to the original creator of a work, and include:

• The right of integrity;
• The right of attribution;
• The right of disclosure;
• The right to withdraw or retract; and
• The right to reply to criticism.

These moral rights are separate from the economic copyright that these days generally transfers from an author to a publisher and they can survive the author. The idea originated with the French, who believe that any creative work, by definition, includes the personality and character of the author. Where copyright is a property right that can be transferred, moral rights are part of the authors personality and character and non-transferable.

The first two moral rightsthe right of integrity and the right of attributionare especially important because they are codified as international law in the Berne Convention. The United States claims its intellectual property law complies with the Berne Convention, but this is just two instances where it doesnt.

The most important of these rights is the first, the right of integrity. Basically it prohibits an authors work from being distorted in any way that would harm the authors reputation and dates to the 1957 French law of droit au respect de l'oeuvre. Its a safe bet that a cross-reference over which the author had no control would be seen as a distortion of the work.

Seemingly, in Europe at least, an artist could make an argument against the production of a copy-protected version of her work on the sole basis of moral rights. Especially in the case of an audio CD to which distortion is intentionally added by the publisher.

In the United States, Representative Rick Boucher (D-Virginia) appears to be taking the point position in questioning the behavior of the entertainment industry. He believes that instead of using copyright to obtain fair compensation for the works theyve licensed, the copyright owner industryincluding the recording industryis attempting to exercise complete dominance and total control of the copyrighted work.

And just how much money does an artist receive in the form of royalties? Use Moses Avalons royalty calculator to figure it out.

A DMCA rewrite?

Representative Rick Boucher (D-Virginia) plans to introduce legislation that would regulateand maybe outright bancopy-protected compact discs. Boucher reportedly has concerns about customers buying copy-protected discs without knowing it and the compatibility problems inherent with the copy protection mechanism. In an interview with Wired News, Boucher said, The big problem initially is that consumers have no information that is complete and reliable about the disabilities which attend copy-protected CDs. These CDs will not play in DVD players, not play on personal computers (and) not even play on all CD players.

Boucher isnt talking about what kind of legislation he might introduce to accomplish his goal of protecting audio CD customers, and the possibilities are intriguing. At the simplest level, legislation may require copy-protected CDs to carry a warning label. At a more interesting level, Boucher may try to rewrite the DMCA. In fact, Boucher announced that he would introduce such legislation last July and reiterated his commitment to that approach in early March of this year.

Internet radio

Under the U.S. Copyright Offices interpretation of the DMCA, Internet radio may be a thing of the past. KFJC, KPIG, and RadioParadise may all be goners. Why is this tragic? Because any of these stations are orders of magnitude better than the sorry excuse for radio available on the traditional dial.

Internet radio is routing around an obsolete and unaccountable industrys safely padded environs and making a difference. Corporate radio sounds exactly the same from coast to coast because it is exactly the same. Sit and watch that website for a few minutes; if it doesnt nauseate you, itll damn sure hypnotize you.

Adding to the arsenal of tools deployed by big media is the Copyright Arbitration and Royalty Panel (CARP). CARP met secretly for the past several months and issued the CARP Report in late February. The keystone of this report is steep licensing fees for webcast music. Lets be clear: compulsory licensing is a good idea, consistent with the intent of copyright law. Usury licensing fees for small webcasters is not.

KPIG responded almost immediately with a plea to save the Pig from the digital slaughterhouse:

Independent webcasters such as KPIG are facing a grave threat to our existence. It may be an evil conspiracy on the part of the big record companies and corporate webcasters, ormore likelyits just a dumb mistake. In either case, KPIG could soon be liable for huge music usage fees ($5,000 - $10,000 per month) that would make it impossible for us to stay online. For background on the issue, see The Death of Web Radio? below and the SaveInternetRadio.org website.

Doc Searls, in his article Bizarre vs. Bazaar, eloquently sums up the combination of DMCA and CARP as the destruction of the Net as a commons and its replacement with a plumbing system for the distribution of content (a word hardly used in a shipping context before Big Media got all drooly over The Promise of The Net).

A brief history of copyright

Copyright, until this recent entertainment industry power-grab, has always been a delicatemaybe even precariousbalance between the rights of the author to benefit from his or her work for a short period of time and the rights of the rest of us to innovate and benefit from those works when they fall into the public domain.

The Constitution granted Congress the power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. Originally, the Copyright Act of 1790 established the limited times of copyright protection of 14 years with an option for the author to renew the copyright for an additional 14 years if he or she were still alive. That copyright term was good enough for the first 100 years of intellectual property in the United States. During the next 100 years, Congress extended the copyright term 11 times.

Certain uses of a protected work that would ordinarily be seen as infringing are specifically allowed for education, criticism, etc. These uses are allowed under the fair use provision. The core concept of fair use is that, in general, any use that does not exploit the commercial value of the original is permissible.

The fair use statute recognizes four criteria by which a use can be determined to be fair or unfair:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted wok as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.

William S. Strong, in The Copyright Book: A Practical Guide , provides an interpretation for working writers:

As a general rule a critic or reporter should not quote at any one point more than two or three paragraphs of a book or journal article, a stanza of a poem, or a solitary chart or graph from a technical treatise.

The Net allows ordinary citizens to exercise their fair use rights in ways never imagined by the entertainment industry. Subsequently, the reaction is to pressure innovation by extending the copyright term for any given work. In October, the U.S. Supreme Court will hear a case that will likely determine the legitimacy of the most recent copyright term extension, the Copyright Term Extension Act of 1998. This law extends the copyright term to the life of the author plus 70 years. In the case of works made for hire in which a corporation owns the copyright, the copyright term is now 95 years.

While one side of the entertainment industry was pushing, an activity that eventually became the Copyright Term Extension Act of 1998, the other side was pulling. That activity eventually resulted in the DMCA. Designed specifically to control the uses that can be made of published works, the DMCA makes it illegal to circumvent copyright-protection technology. The result: the entertainment industry controls not only what you see and hear but the methods and devices with which you see and hear it. Even if the copy-protection is circumvented to enable the fair use of a published work, it is prohibited and deemed to be a criminal act.

Digital TV

According to Mike Godwin, digital television is the tipping point in the war between the entertainment and technology industries. Never mind that every time the entertainment industry shoots itself in the foot, the technology industry comes to its rescue. Remember in the 1970s when the movie industry was in a deep funk and that vampire Jack Valenti said that VCRs would kill it for good? As it turns out, the VCR revived the film industry. The film industry was failing not because of customer VCR usage but because they were putting out epically craptacular films. Just like the recording industry todaywhen in doubt blame those dang customers.

Anyway, Godwin says digital television is the flashpoint because its quality (technical, not artistic) is way too good and unlike DVDs, its unencrypted and has to stay unencrypted to be useful. Oh, and the pesky FCC regulations say that broadcast television signals must be sent unencrypted.

The purveyors of digital television think they have the answer: digital watermarks. They think thats the answer for the online distribution of music, and any other digital content as well. Unfortunately for them, in order for a watermark to be used to restrict copying of digital content, consumer devices used to play the content will have to have technology included thats capable of receiving those watermarks. That would require the cooperation of the technology industry, and that cooperation has not been forthcoming.

Godwin cites the theory of Edward Felten, a computer scientist at Princeton, holding that any sort of tagging system that is undetectable by the user will likely be easy to remove.

Digital rights management

Perhaps the weirdest part of all of this is that the technology industry is just as enamored of protecting intellectual property. Theyre just going about it in a minimally different way. Digital rights management (DRM) is the battle cry of the techheads. And where they differ from their entertainment industry brethren is the question of government mandates. The technology industry wants to lock up published content just as badly as the entertainment industry; they just dont want the government (or anyone else) telling them that they have to. Remember that the entertainment and technology industries both lobbied heavily in favor of the DMCA.

And then there are the schizoids, the companieslike AOL Time Warner and Sonythat are so large that they find themselves on both sides of the fence depending which way the wind blows.

SSSCA > CBDTPA

The Security Systems Standards and Certification Act (SSSCA), kept on a leash but regularly trotted out by Senator Fritz Hollings (D-South Carolina), chair of the Senate Commerce Committee, can best be thought of as a sort of appendix to the DCMA. It is clearly designed to further extend legal protections for digital content owned or licensed by enormous media conglomerates.

According to the draft language of the bill, it would be illegal to create or distribute any interactive digital device that does not include and utilize certified security technologies approved by the Commerce Department. Even though MIT professor and RSA Data Security co-founder Ron Rivest has referred to the proposed legislation as the Digital Rectal Thermometer Security Act its really just mandatory corporate welfare for media conglomerates subsidized by the actual creators and consumers of intellectual property.

Felony penalties for distributing copyrighted material without the certified security technologies fully enabled or using a computer that circumvents those technologies are up to five years in prison and fines up to US$500,000.

Even worse, the proposed legislation calls for manufacturers of digital devices and the media conglomerates to collaboratively develop a copy protection system. If, after two years, they cant come up with a mechanism both industries can live with, the federal government will specify a standard. Hollings bill fails to include the actual creators or users of content in any of the machinations.

Should we be surprised that four of Hollings top campaign donors are media conglomerates?

Predictably, the politicians split along party lines over the SSSCA. Or, more accurately, the split is along the lines of entertainment industry campaign contributions. Democrats, who received US$24.2 million in contributions from the entertainment industry tend to support the idea of legislating the protection of copyrighted material in digital form. Republicans, who received a relatively paltry US$13.3 million in entertainment industry contributions usually oppose the SSSCA, claiming it is too interventionist.

In mid-March 2002, the other shoe dropped. Senator Hollings, better known as the Senator from Disney, transformed the SSSCA into the Consumer Broadband and Digital Television Promotion Act (CBDTPA) and ceased his tip-toeing around. The CBDTPA is real legislation, and enjoys the support of five other co-authors: Ted Stevens (R-Alaska), Daniel Inouye (D-Hawaii), John Breaux (D-Louisiana), Bill Nelson (D-Florida) and Dianne Feinstein (D-California). Just think, one more author and they could have been the seven dwarves. The CBDTPA would require all digital deviceseverything from fax machines to MP3 players and computers (as well as the software that runs on them)to be equipped with embedded copy protection schemes, approved by the federal government.

Whats most disturbing about this is relatively paltry sum it took to buy this legislation. During the 2002 election cycle, only two of the dirty half-dozen were in the top 20 recipients of soft money from the entertainment industry. So far in the 2002 election cycle, Hollings has received only US$19,000 and Stevens has taken only US$39,621. To get the real story, we have to look back several election cycles:

Senator

2002

2000

1998

1996

Total

Fritz Hollings (D-South Carolina)

$19,000

$32,750

$215,284

$43,300

$310,334

Ted Stevens (R-Alaska)

$39,621

$69,900

$109,521

Daniel Inouye (D-Hawaii)

$49,852

$49,852

John Breaux (D-Louisiana)

$120,920

$120,920

Bill Nelson (D-Florida)

$47,550

N/A

N/A

$47,550

Dianne Feinstein (D-California)

$211,638

$211,638

$849,815

Theres no question why Fritz Hollings carried the water for this puppy, is there? But check those senatorial links in the table carefully because they tell the even bigger story of who the top contributing industries were for each politician. In every case, the entertainment industry scored big in the top 20 contributors for every Senator. And remember the 2002 campaign cycle isnt over yet. Not hardly.

So, how much does it cost to get your bill through the Senate? Looks to me like itll come in right around US$1 million.

Enter DigitalConsumer.org

The technology industry was quick to respond to the CBDTPA threat by launching DigitalConsumer.org and its attendant Consumer Technology Bill of Rights. Launched by two of the co-founders of Excite, DigitalConsumer.org is basically trying to protect the fair use rights of customers in digital media. The groups principles, outlined in the Bill of Rights are deceptively simple:

1. Users have the right to time-shift content that they have legally acquired.
2. Users have the right to space-shift content that they have legally acquired.
3. Users have the right to make backup copies of their content.
4. Users have the right to use legally acquired content on the platform of their choice.
5. Users have the right to translate legally acquired content into comparable formats.
6. Users have the right to use technology in order to achieve the rights previously mentioned.

The depth and breadth of support this lobbying group will receive remains to be seen. Some of the precepts are in direct conflict with the interests of some of the largest technology industry members. Microsoft, for example, almost certainly wants to be the digital rights management company of record and is none too keen on, say, items 2, 3, 4, and 5.

A solution

The solution is actually quite simple and requires only three steps:

1. Revert the term of copyright to 14 years, immediately and retroactive to all existing works.
2. Recognize moral rights in the works authors create, like every other civilized country on the planet. Make it immediate and retroactive to all existing works.
3. Prohibit any corporation from owning a copyright. Corporations create nothing; theyre consensual hallucinations and exist at our pleasure. I dont know about you, but Im not much pleased any more.

The basis of the problem is found in a single court ruling: Santa Clara County v. Southern Pacific Railroad. In this 1886 dispute, the U.S. Supreme Court found that a private corporation was a natural person under the Constitution and enjoyed the same protections as a citizen under the Bill of Rights. Corporations from that point forward were granted all of the rights and freedoms of a private citizen, yet none of the responsibilities. We made a mistake; hey, shit happens. Its not too late to fix it.

Posted by Michael Fraase, 3/23/02 at 9:54:46 PM.

When elephants dance, its best to get out of the way. Thats exactly whats happening now as the entertainment industrythe recording, publishing, and motion picture industries, mainlyattempts a worldwide intellectual property power grab with two distinct targets. Think of it: a coup and a lock on all published content in the same year, amazing isnt it?

Target number 1 is the average customer: anyone who purchases software, an audio CD, an electronic book, or a movie on DVD. The entertainment industry sees customers as pirates, plain and simple. In their collective minds eye, we all have a wooden leg, eye patch, and a filthy talking parrot on our shoulder. While the Constitution grants customers certain rights with regard to copyrighted material, the entertainment industry very much wants to separate us from those rights.

Target number 2 in the sights of the entertainment industry are technology behemoths like Microsoft, Intel, IBM, and Apple. These companies, in the perverse worldview of the entertainment industry, make the toolscomputers mostlythat allow customers to practice their piracy.

Let me point out that I am a copyright owner, as is everyone else who has ever created a work in tangible form. Thats all authors, for short. Authors are almost never members of the entertainment industry club. The entertainment industry hates authors almost as much as they hate customers. Sometimes, especially when authors get uppity, the entertainment industry hates authors much more than customers. Until recently, authors have always been seen to be at least a marginal threat while customers were seen as merely necessary annoyances.

To complicate matters by at least an order of magnitude, the consumer electronics manufacturersthe companies that make stereos, VCRs, and DVD playershave aligned with the entertainment industry. At least some of them, and at least to some extent.

Unfortunately for usboth authors and customerswere likely to get squished as these elephants dance. The intent of the entertainment industry, believe it or not, is to outlaw personal computers. As security and cryptography expert Bruce Schneier explains it to Mike Godwin: If you think about it, the entertainment industry does not want people to have computers; theyre too powerful, too flexible, and too extensible. They want people to have Internet Entertainment Platforms: televisions, VCRs, game consoles, etc.

Copy-protected CDs

The recording industry is selling shiny plastic discs that contain music that cant be copied to or even played on some customers equipment. Philips, the owner of the CD format says these discs cannot be called CDs because they do not meet the standard of what a CD is. Sony, one of those weird hybrid companies that, as a member in good standing of both the technology and entertainment industries, finds itself on both sides of this issue says it cant guarantee the audio quality of these discs. The technology used to protect these discs sometimes prevents the discs from playing on computer CD-ROM drives, DVD players, and other devices specifically designed to play standard audio CDs.

Sales of recorded music are down 10% in the United States over the last year. The recording industry blames this downturn not on the economic recession, not on the crappy music that theyve released in the past few years, but on Internet piracy.

And its only going to get worse. Hilary B. Rosen, president of the Recording Industry Association of America (RIAA) told Congress on 28 February 2001 that the practice of copy-protecting audio CDs would expand in the United States. If technology can be used to pirate copyrighted content, Rosen wrote in her response to a Congressional query, shouldnt technology likewise be used to protect copyrighted content? Surely, no one can expect copyright owners to ignore what is happening in the marketplace and fail to protect their creative works because some people engage in copying just for their personal use. Her pal, Michael Eisner, head of Disney, said he was tired of being finessed by the technology industry, whatever that means.

Unfortunately for Eisner, Rosen, Disney, and the RIAA, personal useand more importantly the rights associated with that use of copyrighted materialis exactly why copying of copyrighted material is not just allowed, but mandated by the Constitution. That some individuals illegally sell copied CDs or distribute copies of the music on the Internet is immaterial. In fact, fairly casual observation indicates that if customers are treated like criminals they will indeed begin to behave like criminals.

It has become common practice for music-loving computer owners to legally transfer audio CDs they purchase to .mp3 format files on their computers. The copy protection technology employed by the recording industry prevents such transfers by adding distortions to the music of the recordings. The industry insists that these distortions are inaudible when the disc is played on a standard CD player but result in pops when the music is transferred to a computer. In any case, its usually impossible to tell whether or not a disc includes the copy protection technology; in general, the copy-protected discs are not labeled.

Ironically, or probably not, .mp3 player manufacturers could easily defeat the copy protection technology, but they fear doing so would risk prosecution under the Digital Millennium Copyright Act (DMCA) which prohibits the bypassing of copy protection systems. In 1999, the Ninth Circuit Court of Appeals ruled that .mp3 players did not violate copyright law because customers have the right to space shift music they have purchased.

Moral rights

Interestingly, the act of using the copy protection technology is much more prevalent in Europe. Most European countries, unlike the United States, recognize an artists moral rights in the work they create.

Moral rights are a package of intellectual property rights granted to the original creator of a work, and include:

• The right of integrity;
• The right of attribution;
• The right of disclosure;
• The right to withdraw or retract; and
• The right to reply to criticism.

These moral rights are separate from the economic copyright that these days generally transfers from an author to a publisher and they can survive the author. The idea originated with the French, who believe that any creative work, by definition, includes the personality and character of the author. Where copyright is a property right that can be transferred, moral rights are part of the authors personality and character and non-transferable.

The first two moral rightsthe right of integrity and the right of attributionare especially important because they are codified as international law in the Berne Convention. The United States claims its intellectual property law complies with the Berne Convention, but this is just two instances where it doesnt.

The most important of these rights is the first, the right of integrity. Basically it prohibits an authors work from being distorted in any way that would harm the authors reputation and dates to the 1957 French law of droit au respect de l'oeuvre. Its a safe bet that a cross-reference over which the author had no control would be seen as a distortion of the work.

Seemingly, in Europe at least, an artist could make an argument against the production of a copy-protected version of her work on the sole basis of moral rights. Especially in the case of an audio CD to which distortion is intentionally added by the publisher.

In the United States, Representative Rick Boucher (D-Virginia) appears to be taking the point position in questioning the behavior of the entertainment industry. He believes that instead of using copyright to obtain fair compensation for the works theyve licensed, the copyright owner industryincluding the recording industryis attempting to exercise complete dominance and total control of the copyrighted work.

And just how much money does an artist receive in the form of royalties? Use Moses Avalons royalty calculator to figure it out.

A DMCA rewrite?

Representative Rick Boucher (D-Virginia) plans to introduce legislation that would regulateand maybe outright bancopy-protected compact discs. Boucher reportedly has concerns about customers buying copy-protected discs without knowing it and the compatibility problems inherent with the copy protection mechanism. In an interview with Wired News, Boucher said, The big problem initially is that consumers have no information that is complete and reliable about the disabilities which attend copy-protected CDs. These CDs will not play in DVD players, not play on personal computers (and) not even play on all CD players.

Boucher isnt talking about what kind of legislation he might introduce to accomplish his goal of protecting audio CD customers, and the possibilities are intriguing. At the simplest level, legislation may require copy-protected CDs to carry a warning label. At a more interesting level, Boucher may try to rewrite the DMCA. In fact, Boucher announced that he would introduce such legislation last July and reiterated his commitment to that approach in early March of this year.

Internet radio

Under the U.S. Copyright Offices interpretation of the DMCA, Internet radio may be a thing of the past. KFJC, KPIG, and RadioParadise may all be goners. Why is this tragic? Because any of these stations are orders of magnitude better than the sorry excuse for radio available on the traditional dial.

Internet radio is routing around an obsolete and unaccountable industrys safely padded environs and making a difference. Corporate radio sounds exactly the same from coast to coast because it is exactly the same. Sit and watch that website for a few minutes; if it doesnt nauseate you, itll damn sure hypnotize you.

Adding to the arsenal of tools deployed by big media is the Copyright Arbitration and Royalty Panel (CARP). CARP met secretly for the past several months and issued the CARP Report in late February. The keystone of this report is steep licensing fees for webcast music. Lets be clear: compulsory licensing is a good idea, consistent with the intent of copyright law. Usury licensing fees for small webcasters is not.

KPIG responded almost immediately with a plea to save the Pig from the digital slaughterhouse:

Independent webcasters such as KPIG are facing a grave threat to our existence. It may be an evil conspiracy on the part of the big record companies and corporate webcasters, ormore likelyits just a dumb mistake. In either case, KPIG could soon be liable for huge music usage fees ($5,000 - $10,000 per month) that would make it impossible for us to stay online. For background on the issue, see The Death of Web Radio? below and the SaveInternetRadio.org website.

Doc Searls, in his article Bizarre vs. Bazaar, eloquently sums up the combination of DMCA and CARP as the destruction of the Net as a commons and its replacement with a plumbing system for the distribution of content (a word hardly used in a shipping context before Big Media got all drooly over The Promise of The Net).

A brief history of copyright

Copyright, until this recent entertainment industry power-grab, has always been a delicatemaybe even precariousbalance between the rights of the author to benefit from his or her work for a short period of time and the rights of the rest of us to innovate and benefit from those works when they fall into the public domain.

The Constitution granted Congress the power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. Originally, the Copyright Act of 1790 established the limited times of copyright protection of 14 years with an option for the author to renew the copyright for an additional 14 years if he or she were still alive. That copyright term was good enough for the first 100 years of intellectual property in the United States. During the next 100 years, Congress extended the copyright term 11 times.

Certain uses of a protected work that would ordinarily be seen as infringing are specifically allowed for education, criticism, etc. These uses are allowed under the fair use provision. The core concept of fair use is that, in general, any use that does not exploit the commercial value of the original is permissible.

The fair use statute recognizes four criteria by which a use can be determined to be fair or unfair:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted wok as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.

William S. Strong, in The Copyright Book: A Practical Guide , provides an interpretation for working writers:

As a general rule a critic or reporter should not quote at any one point more than two or three paragraphs of a book or journal article, a stanza of a poem, or a solitary chart or graph from a technical treatise.

The Net allows ordinary citizens to exercise their fair use rights in ways never imagined by the entertainment industry. Subsequently, the reaction is to pressure innovation by extending the copyright term for any given work. In October, the U.S. Supreme Court will hear a case that will likely determine the legitimacy of the most recent copyright term extension, the Copyright Term Extension Act of 1998. This law extends the copyright term to the life of the author plus 70 years. In the case of works made for hire in which a corporation owns the copyright, the copyright term is now 95 years.

While one side of the entertainment industry was pushing, an activity that eventually became the Copyright Term Extension Act of 1998, the other side was pulling. That activity eventually resulted in the DMCA. Designed specifically to control the uses that can be made of published works, the DMCA makes it illegal to circumvent copyright-protection technology. The result: the entertainment industry controls not only what you see and hear but the methods and devices with which you see and hear it. Even if the copy-protection is circumvented to enable the fair use of a published work, it is prohibited and deemed to be a criminal act.

Digital TV

According to Mike Godwin, digital television is the tipping point in the war between the entertainment and technology industries. Never mind that every time the entertainment industry shoots itself in the foot, the technology industry comes to its rescue. Remember in the 1970s when the movie industry was in a deep funk and that vampire Jack Valenti said that VCRs would kill it for good? As it turns out, the VCR revived the film industry. The film industry was failing not because of customer VCR usage but because they were putting out epically craptacular films. Just like the recording industry todaywhen in doubt blame those dang customers.

Anyway, Godwin says digital television is the flashpoint because its quality (technical, not artistic) is way too good and unlike DVDs, its unencrypted and has to stay unencrypted to be useful. Oh, and the pesky FCC regulations say that broadcast television signals must be sent unencrypted.

The purveyors of digital television think they have the answer: digital watermarks. They think thats the answer for the online distribution of music, and any other digital content as well. Unfortunately for them, in order for a watermark to be used to restrict copying of digital content, consumer devices used to play the content will have to have technology included thats capable of receiving those watermarks. That would require the cooperation of the technology industry, and that cooperation has not been forthcoming.

Godwin cites the theory of Edward Felten, a computer scientist at Princeton, holding that any sort of tagging system that is undetectable by the user will likely be easy to remove.

Digital rights management

Perhaps the weirdest part of all of this is that the technology industry is just as enamored of protecting intellectual property. Theyre just going about it in a minimally different way. Digital rights management (DRM) is the battle cry of the techheads. And where they differ from their entertainment industry brethren is the question of government mandates. The technology industry wants to lock up published content just as badly as the entertainment industry; they just dont want the government (or anyone else) telling them that they have to. Remember that the entertainment and technology industries both lobbied heavily in favor of the DMCA.

And then there are the schizoids, the companieslike AOL Time Warner and Sonythat are so large that they find themselves on both sides of the fence depending which way the wind blows.

SSSCA > CBDTPA

The Security Systems Standards and Certification Act (SSSCA), kept on a leash but regularly trotted out by Senator Fritz Hollings (D-South Carolina), chair of the Senate Commerce Committee, can best be thought of as a sort of appendix to the DCMA. It is clearly designed to further extend legal protections for digital content owned or licensed by enormous media conglomerates.

According to the draft language of the bill, it would be illegal to create or distribute any interactive digital device that does not include and utilize certified security technologies approved by the Commerce Department. Even though MIT professor and RSA Data Security co-founder Ron Rivest has referred to the proposed legislation as the Digital Rectal Thermometer Security Act its really just mandatory corporate welfare for media conglomerates subsidized by the actual creators and consumers of intellectual property.

Felony penalties for distributing copyrighted material without the certified security technologies fully enabled or using a computer that circumvents those technologies are up to five years in prison and fines up to US$500,000.

Even worse, the proposed legislation calls for manufacturers of digital devices and the media conglomerates to collaboratively develop a copy protection system. If, after two years, they cant come up with a mechanism both industries can live with, the federal government will specify a standard. Hollings bill fails to include the actual creators or users of content in any of the machinations.

Should we be surprised that four of Hollings top campaign donors are media conglomerates?

Predictably, the politicians split along party lines over the SSSCA. Or, more accurately, the split is along the lines of entertainment industry campaign contributions. Democrats, who received US$24.2 million in contributions from the entertainment industry tend to support the idea of legislating the protection of copyrighted material in digital form. Republicans, who received a relatively paltry US$13.3 million in entertainment industry contributions usually oppose the SSSCA, claiming it is too interventionist.

In mid-March 2002, the other shoe dropped. Senator Hollings, better known as the Senator from Disney, transformed the SSSCA into the Consumer Broadband and Digital Television Promotion Act (CBDTPA) and ceased his tip-toeing around. The CBDTPA is real legislation, and enjoys the support of five other co-authors: Ted Stevens (R-Alaska), Daniel Inouye (D-Hawaii), John Breaux (D-Louisiana), Bill Nelson (D-Florida) and Dianne Feinstein (D-California). Just think, one more author and they could have been the seven dwarves. The CBDTPA would require all digital deviceseverything from fax machines to MP3 players and computers (as well as the software that runs on them)to be equipped with embedded copy protection schemes, approved by the federal government.

Whats most disturbing about this is relatively paltry sum it took to buy this legislation. During the 2002 election cycle, only two of the dirty half-dozen were in the top 20 recipients of soft money from the entertainment industry. So far in the 2002 election cycle, Hollings has received only US$19,000 and Stevens has taken only US$39,621. To get the real story, we have to look back several election cycles:

Senator

2002

2000

1998

1996

Total

Fritz Hollings (D-South Carolina)

$19,000

$32,750

$215,284

$43,300

$310,334

Ted Stevens (R-Alaska)

$39,621

$69,900

$109,521

Daniel Inouye (D-Hawaii)

$49,852

$49,852

John Breaux (D-Louisiana)

$120,920

$120,920

Bill Nelson (D-Florida)

$47,550

N/A

N/A

$47,550

Dianne Feinstein (D-California)

$211,638

$211,638

$849,815

Theres no question why Fritz Hollings carried the water for this puppy, is there? But check those senatorial links in the table carefully because they tell the even bigger story of who the top contributing industries were for each politician. In every case, the entertainment industry scored big in the top 20 contributors for every Senator. And remember the 2002 campaign cycle isnt over yet. Not hardly.

So, how much does it cost to get your bill through the Senate? Looks to me like itll come in right around US$1 million.

Enter DigitalConsumer.org

The technology industry was quick to respond to the CBDTPA threat by launching DigitalConsumer.org and its attendant Consumer Technology Bill of Rights. Launched by two of the co-founders of Excite, DigitalConsumer.org is basically trying to protect the fair use rights of customers in digital media. The groups principles, outlined in the Bill of Rights are deceptively simple:

1. Users have the right to time-shift content that they have legally acquired.
2. Users have the right to space-shift content that they have legally acquired.
3. Users have the right to make backup copies of their content.
4. Users have the right to use legally acquired content on the platform of their choice.
5. Users have the right to translate legally acquired content into comparable formats.
6. Users have the right to use technology in order to achieve the rights previously mentioned.

The depth and breadth of support this lobbying group will receive remains to be seen. Some of the precepts are in direct conflict with the interests of some of the largest technology industry members. Microsoft, for example, almost certainly wants to be the digital rights management company of record and is none too keen on, say, items 2, 3, 4, and 5.

A solution

The solution is actually quite simple and requires only three steps:

1. Revert the term of copyright to 14 years, immediately and retroactive to all existing works.
2. Recognize moral rights in the works authors create, like every other civilized country on the planet. Make it immediate and retroactive to all existing works.
3. Prohibit any corporation from owning a copyright. Corporations create nothing; theyre consensual hallucinations and exist at our pleasure. I dont know about you, but Im not much pleased any more.

The basis of the problem is found in a single court ruling: Santa Clara County v. Southern Pacific Railroad. In this 1886 dispute, the U.S. Supreme Court found that a private corporation was a natural person under the Constitution and enjoyed the same protections as a citizen under the Bill of Rights. Corporations from that point forward were granted all of the rights and freedoms of a private citizen, yet none of the responsibilities. We made a mistake; hey, shit happens. Its not too late to fix it.

Here you go

http://cryptome.org/broadbandits.htm