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and most of the world knows that the US does not pay it's UN dues (at least not on time).

IANAL, but as far as I know you would be fine if the company does not have a patent in your country, or does not have an application pending in your country which covers the same thing.

There currently aren't any laws which recognize patents from other countries as being valid in any other country (at least to my knowledge). However, there is such a thing as a world patent filing through WIPO that files patents under the Patent Cooperation Treaty. The WIPO does not grant any rights to a filer of the patent other than the right to re-file the patent as a national stage application in each of the countries that are selected during the filing of the PCT application while retaining the original filing date of the PCT application as a priority date. Basically this just allows for an easier way to file a patent application in multiple countries at the same time.

The fact is that these laws (now enacted by the US, EU and other countries) are the result of the WIPO Internet Copyright Treaties

No, the laws go much further than the treaty demands. The relevant article is art. 11:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures [...] which are not authorized by the authors concerned or permitted by law.
(My emphasis)

These last four words are crucial. They mean that the anti-circumvention rules need only apply where you circumvent in order to do something already illegal. In that way the treaty is toothless. The problem is that US/EU and now Australia has been lobbied into outlawing circumvention under much broader circumstances, and even outlawing "circumvention tools" as well.

Caveat: IANAL
Yep, the fact that the domain name contains his own name should be a significant defence against bad faith (it's the same defence used by family businesses called McDonalds, for example). In fact, as long as he does not attempt to pass himself off as having any association to M$ on his site, he should be free to continue as is. Offering to sell the domain could be used as a reasonable defence to discourage Microsoft's approach - effectively telling the company the domain is not for sale by putting a silly price on it.

I think he'd have a fair chance of victory if he pushed this up to an international level (WIPO domain dispute resolution) for resolution.

Looky here and search for mikerowesoft

Cutting and pasting:

The World Intellectual Property Organization (WIPO) is an international organization dedicated to promoting the use and protection of works of the human spirit. These works -- intellectual property -- are expanding the bounds of science and technology and enriching the world of the arts. Through its work, WIPO plays an important role in enhancing the quality and enjoyment of life, as well as creating real wealth for nations.

With headquarters in Geneva, Switzerland, WIPO is one of the 16 specialized agencies of the United Nations system of organizations. It administers 23 international treaties dealing with different aspects of intellectual property protection.

The copyright directive does not harmonize the basics of copyright. I cannot find anything like that there. There is no need for harmonizng this,all member countries of the EU are parties to the Berne Convention for the Protection of Literary and Artistic Works. The personal (as opposed to public) use of a copyright protected work is something that falls outside of what I would call "copyright basics".

The directive therefore does not say anything about copyright basics and therefore cannot be read as banning acts falling outside the scope of copyright.

The European Council's Common Position on the harmonisation of certain aspects of copyright and related rights in the information society states that

43. In its amendment 47, the European Parliament [page 171] had suggested that it be stipulated in Article 5(4) (current Article 5(5)) that the legal protection of technological measures prevailed over the exceptions listed in Article 5. The Commission had addressed this issue under Article 6(3) of its amended proposal, providing that only technological measures preventing or inhibiting the infringement of copyright were protected under Article 6. This meant that technological measures designed to prevent or inhibit acts allowed by law (e.g. by virtue of an exception) were not protectable under Article 6. In other words, under the Commissions amended proposal, the exceptions provided for in Article 5 prevailed over the legal protection of technological measures provided for in Article 6.

The Council has taken a different approach, which it considers strikes a reasonable balance between the interests of rightholders and those of beneficiaries of exceptions. It has adopted in Article 6(3) first sentence of its Common Position a definition of the protectable technological measures which is broader than the one provided for in the Commissions amended proposal or the one set out in Parliaments amendment 54. The terms ... designed to prevent or restrict acts, in respect of works or other subject matter, which are not authorised by the rightholder of any copyright ... in the Councils definition make it clear that Article 6(1) protects against circumvention of all technological measures designed to prevent or restrict acts not authorised by the rightholder, regardless of whether the person performing the circumvention is a beneficiary of one of the exceptions provided for in Article 5.

Note the reference in the last paragraph. It is to article 5.

art 5 numbers 1 and 2 deal with exceptions from article 2. Article 2 deals with the "Reproduction right". This is a part of the "copyright basics".

art 5 number 3 deals with art 2 and 3. Article 3 is the "Right of communication to the PUBLIC of works and right of making available to the PUBLIC other subject-matter".

I cannot find anything in the directive dealing with a purely private use falling outside the scope of copyright.

For the process behind the passing of the directive, see PreLex

If you complain to ICANN, be sure to note that this is a breach of the WhoIs policy:

"76. It is noted that ICANN's Statement of Registrar Accreditation Policy requires accredited registrars to provide public access on a real-time basis (such as by way of a Whois service) to the contact details which it is recommended, above, be required to be provided by a domain name registrant 54."

-- The Availability Of Contact Details, The Management Of InterNet Names And Addresses: Intellectual Property Issues, World Intellectual Property Organisation, http://wipo2.wipo.int/process1/report/finalreport. html

For those who may have forgotten...this Tata Consultancy Services is a subsidiary of the very same Tata that took over the website www.bodacious-tatas.com in the landmark cybersquatting case.

That is one big bad Tata!

I guess in the rest of the world outside of USA (is Canada included?) we can be live just fine...

That is where WIPO comes in. WIPO itself does not issue patents.
It is the however, a vehicle by which patent laws can be used and abused internationally.

If Israel has the desire (or has the desire forced upon them) to enforce compliance with their treaty obligations, these guys could have set up themselves the bomb (literally).

I was under the impression that the patent treaties granted an automatic "reservation" for a patent, but no patent itself. This allows one to get "patent pending" type status in many countries at once without too much trouble. But before you can enforce any rights, you have to file all the paperwork (and pay the fees!) of each coutry in which you want to get a "real" patent.

I looked into this a few years ago, and there's a very good chance that I'm flat out wrong. Someone please correct me if I am.

I've got a direct link to the Patent Cooperation Treaty that someone else mentioned here. Unfortunately, it's in legalese and there's no FAQ. =)

Correct: the patent treaty was signed in Geneva (but not named after Geneva, for obvious reasons!)

And patent laws are national laws, IMHO there no international rules.

The delegates who met in Geneva on June 1, 2000 to sign the Patent Law Treaty would be surprised to learn that. (There are various other, prior treaties referred to by that treaty, but this seems to be the most recent.)

So: patent law is indeed provided for by international treaties, as with copyright.

I don't quite follow your comment, but the "Walmartsucks guy" won one domain name arbitration against Wal-mart.

IIRC, he later incorporated the 'walmartcanadasucks' name, and then filed a claim against Wal-Mart, who had preemptively registered some sucks domain names, and claimed they were cybersquatting on his corporate domains.

see WIPO

As to Unix:

Nothing like facts to really mess up your argument.

http://www.telegen.com/

WIPO Decsion

5.4 In reference to paragraph 4(a)(iii) of the policy, the Complainant asserts that the domain name has been registered and used in bad faith because:

(a) Incorrect contact details were provided to the whois database. Neither telephone or facsimile contact information was given.

The WIPO changes are detailed here (PDF).

So is there a mechanism for us to challenging the USPTO concerning patents like this? What would happen if 100's of Slashdotters contacted the USPTO armed with all of this prior art.

hy,

AFAIK the big problem is, that the germans MUST make such laws because the European Union.

There were some basic EU rules they had to implement, and some from the WIPO.

But nevertheless the new law cound be better :-(
In Germany it's called "Lex Bertelsmann": Bertelsman owns hundrets of radio stations, magazines, book publishers, music labels (like BMG), TV stations and so on. Compare it to Fox ;-)


Yutsok

• You have to expect similar laws in all major industry nations (and some nations you haven't even heard of, especially if you're American)
• Political action agains national laws does not help much: You can only reach the least bad solution possible within the scope of International Law.
  To really change something, you have to address the WCT (and the EUCD).

• You have to expect similar laws in all major industry nations (and some nations you haven't even heard of, especially if you're American)
• Political action agains national laws does not help much: You can only reach the least bad solution possible within the scope of International Law.
  To really change something, you have to address the WCT (and the EUCD).

Because[sic] the US really, really respects the opinion of the rest of the World.

Because[sic] the US really, really respects the opinion of the rest of the World.

The Practice Guidelines under the SPLT are available at http://www.wipo.int/scp/en/documents/session_9/pdf /scp9_4.pdf. The relevant section is 76 d on pages 19/20.

This information is useful not only for defending against patent claims like this, but where OpenSource developers have been discussing concepts and ideas on mailing lists open to the public. The document above is also a good read (really!) on the subject of prior art.

It appears that WIPO are taking a stand against Intellectual Piracy.

Phil

Not really ironic.

The page you saw actually belonged to Ultimate Search -- a rather infamous squatter company.

Its no suprise that ultsearch put links to spam filters on there.

this guy also owned madonna.com and fought her for quite a while on it, she finally won though.

http://arbiter.wipo.int/domains/decisions/html/200 0/d2000-0847.html

Kind of like the suck-ass The Open Group, how ironic isn't it when a group is completely closed and is named that way.
Not to mention that the fags stole a BSD-gurus domain, see this for the real bizarreness.
The world would be better without lawyer, buy a shotgun today and make this world a better place to live.

Good question! Answer: I have no idea. I know very little about private international law, that is, private entities suing each other.

It appears to be a question in flux -- this symposium looks specifically at jurisdiction (the ability to bring cases) and enforcement (the ability to get another country to help you collect).

Here is WIPO commentary on digital rights issues, mentioning 2 recent "Internet treaties." In April WIPO will have a Summit on Intellectual Property and the Knowledge Economy in Beijing.

As for best/worst case scenarios, the US is the 800-lb. gorilla here, and has a ton of intellectual property. The US will have to decide what it thinks the rules should be, then twist arms to get others to sign or or else go it alone. The flip side is that countries like China have not cared much about enforcing IP rights; piracy is a regular business there. This will be a hot issue between the world's have and have-nots, as well as between those on each side of the intellectual property debate.

Good question! Answer: I have no idea. I know very little about private international law, that is, private entities suing each other.

It appears to be a question in flux -- this symposium looks specifically at jurisdiction (the ability to bring cases) and enforcement (the ability to get another country to help you collect).

Here is WIPO commentary on digital rights issues, mentioning 2 recent "Internet treaties." In April WIPO will have a Summit on Intellectual Property and the Knowledge Economy in Beijing.

As for best/worst case scenarios, the US is the 800-lb. gorilla here, and has a ton of intellectual property. The US will have to decide what it thinks the rules should be, then twist arms to get others to sign or or else go it alone. The flip side is that countries like China have not cared much about enforcing IP rights; piracy is a regular business there. This will be a hot issue between the world's have and have-nots, as well as between those on each side of the intellectual property debate.

Would a case like this be covered under the WIPO Copyright Treaty, and if so what are the worst case and best case scenarios?

Except, that Norway is a member of WIPO which says that its members must respect the copyright laws of other nations.

If I remember right, one of the requirements of a recent set of World Intellectual Property Organization accords is that signatory members must pass laws expanding their intellectual property enforcement overseas. The US's compliance with this was the DMCA. So, for once, we choose to go along with international accords (unlike, say, the Kyoto Accords, the UN Conference on Racism, etc) and pass the DMCA. Lovely.

To be on-topic: Multani-Mitti is a safe, cool(literally) & great way to get rid of those pesky pimples. Heres one such treatment.

> My problem with this sort of analysis is it assumes that trademarks are some evil pro-corporation conspiracy.

You are most wrong - and you misrepresent me. I am pro-trademark - not wanting anybody to be conned by some fraudster passing themselves off as trademark holders. In their communications, nobody in USPTO or US DoC has ever accused me of this.

You would know you are wrong if you looked at WIPO.org.uk - Quote: "Trademarks are for the good of the people, as well as business. Attorneys would say, "The basic tenet of trademark law is to protect consumers and trademark owners from confusion in the marketplace"."

Then look at Comments on WIPO Interim Report

Quote: "Though the authorities SAY they have good ideals - to protect trademarks on the Internet..."

> I think a little more review of "confusingly similar" and the apple analogy would help UDRP decisions seem much more reasonable.

UDRP is unlawful and fatally flawed. It violates Trademark and Competition Law - and pisses on First Amendment.

> Co-existence of similar marks in the real world is dependent on a low likelihood of confusion of source, ...etc.

The only way to avoid confusion is to supply more information - yes or no?

> Obviously, I shouldn't expect this opinion to be very popular here, but I'd rather get Microsoft on my first try at microsoft.com, .biz, .whatever than preserve some random small-time third party's right to the name.

You would prevent the use of the word 'microsoft' to be used to complain about their monopoly or business practices?

Domain names are not trademarks, ask creator Paul Mockapetris. He designed DNS for the function of naming resources - not as unlawful fatally flawed trademark system. He was asked, what do you wish you had invented? He replied, "A directory system for the Internet that wouldn't be controlled by the politicians, lawyers and bureaucrats."

Professor Milton Mueller (Associate Professor, Syracuse University School of Information Studies) recent study: "Conclusion: Domain Names are not Trademarks". To be trademarks he states, "If this is true then the exclusivities associated with business and product names should be applied systematically to them."

The exclusivity's are obvious:

1. That it is a registered trademark - given that ALL words are trademarks and so can be confused with other domains.
2. The country of the trademark - given that ANY word may be (is) used by different business in DIFFERENT country.
3. The type of business (classification) - given that ANY word may be (is) used by different business in SAME country.

So, as domain names are not trademarks - you would prevent the use of the word 'microsoft' to be used by authorized agents e.g. microsoftshop.com - or an individual offering training of microsoft office - e.g microsofttrainer.com?

> And in the end, it you take it from the perspective of the average guy (that is, the person trademark law is most trying to protect) doesn't it make sense that Nissan.com would be the car maker's site? After all, that's what they'll type into their browser when looking for it.

Nissan motors are unlawfully overreaching their trademark - Mr Nissan is not even in the same trademark classification - ask any trademark lawyer.

> Moreover, that's another reason .reg would be foolish: with the sophistication of the average user, it'd be about as worthwhile, popular, and well-known as .aero.

You completely miss the point (deliberately?) - it will be issued to all registered trademark holders.

Given every word is trademarked - most many times - why should big business be allowed prevent small business and the public from using every dictionary word?

People will associate .reg as the trademark symbol on the Internet.

If they are redirected to it - they will accept it as certificate of authentication.

Anybody that would abridge peoples use of words is obviously anti-First Amendment and likely in corporate pocket.

I don't think the company is in any worse a situation than releasing the executables. They still hold copyright on the source and (presumably) patents on any innovative steps in the process. It's only slightly harder to copy an executable (allowing for access codes) than to compile the source. They can still sue for copyright infringements (via international agreements, Berne Convention, through the World IP Organisation) and this includes unauthorised amendment of a work. There are 149 signatories to the Berne convention. Also the points about excluding certain key features is a good idea. One that I would say was equivalent (in modern autos) to excluding exact engine management data. Even if source code was given for only 50% of a program it would reveal issues to do with quality of source. I think that in fact we should have some new intellectual property right specifically for computer programs that would require certain disclosures which would enable quality to be assessed. It would also require information to be given to other software producers on compatibility issues ... and I'm sure we could all add a few other features. Just a thought as yet ... not a fully formed international treaty!

I don't think the company is in any worse a situation than releasing the executables. They still hold copyright on the source and (presumably) patents on any innovative steps in the process. It's only slightly harder to copy an executable (allowing for access codes) than to compile the source. They can still sue for copyright infringements (via international agreements, Berne Convention, through the World IP Organisation) and this includes unauthorised amendment of a work. There are 149 signatories to the Berne convention. Also the points about excluding certain key features is a good idea. One that I would say was equivalent (in modern autos) to excluding exact engine management data. Even if source code was given for only 50% of a program it would reveal issues to do with quality of source. I think that in fact we should have some new intellectual property right specifically for computer programs that would require certain disclosures which would enable quality to be assessed. It would also require information to be given to other software producers on compatibility issues ... and I'm sure we could all add a few other features. Just a thought as yet ... not a fully formed international treaty!

by Adam C. Engst <ace@tidbits.com>

Much has been written about what's wrong with the Digital Millennium Copyright Act (DMCA). After all, it's been used to jail programmers, threaten professors, and censor publications, and because of it, foreign scientists have avoided traveling to the U.S. and prominent researchers have withheld their work. In a white paper about the unintended consequences of the DMCA, the Electronic Frontier Foundation argues that the DMCA chills free expression and scientific research, jeopardizes fair use, and impedes competition and innovation. In short, this is a law that only the companies who paid for it could love.

<http://www.eff.org/IP/DMCA/20020503_dmca_conseq uences.html >
<http://www.educause.edu/issues/dmca.html>
<http://anti-dmca.org/>

Just who are we talking about here? Primarily the large movie studios and record labels, who own the copyrights on vast quantities of content and who have been working with one another and via their industry associations, the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA), to control how we are allowed to interact with that content. Their unity of purpose and storm-trooper tactics have led some to dub them the Content Cartel.

<http://www.riaa.org/>
<http://www.mpaa.org/>

However, the DMCA is merely one link in a chain that's being used by the Content Cartel and many others to restrict access to the shared cultural heritage of the world, and in the process, extract money from our pockets, stifle innovation and competition, and protect entrenched interests.

DMCA and Trusted Systems -- I recently attended a talk by Professor Tarleton Gillespie <tlg28@cornell.edu> of Cornell University in which he made a compelling argument for how the Content Cartel is using the legal force of the DMCA to direct us down a path where content cannot exist outside of a trusted system, which is a set of hardware, software, and file formats that all agree on what the user is allowed to do with a piece of content. (The trust here is between the pieces of the system, because the content owners don't trust their customers at all.) The trusted system's goals are simple - to eliminate all unauthorized uses and create a situation where we pay more for the content we consume.

A trusted system could prevent you not only from copying a CD or DVD, but also from listening to the CD more than a certain number of times in a day or skipping commercials on a DVD or on broadcast television. Along with requiring us to buy new hardware to play such content and buy new protected versions of the content we already own, a trusted system could have another ill effect. That's because it could prevent us from working with content we would create, using tools such as those Apple kindly provides in iMovie, iDVD, iTunes, and iPhoto. In the worst case scenario, Apple could lose not just the Mac's current digital media advantage in the marketplace, but the ability to work with digital media at all. See Cory Doctorow's article on the broadcast flag in TidBITS-642 for more on this disturbing possibility.

< http://db.tidbits.com/getbits.acgi?tbart=06901>

Professor Gillespie illustrated how this could happen with a discussion of the awkwardly named Content Scramble System (CSS), used to prevent people from copying DVDs, and the DeCSS software created by a Norwegian teenager with help from others on the Internet to build a Linux DVD player.

(A brief aside: DeCSS violates the DMCA's anti-circumvention provisions, which ban devices or services that are designed primarily to circumvent copy prevention technologies, that have only limited commercially significant purpose other than circumvention, or that are marketed for circumvention. The DMCA was signed into law in large part to bring the U.S. into compliance with a pair of World Intellectual Property Organization (WIPO) treaties that require anti-circumvention protections in the copyright law of signatory nations. You might think Norway would be included among the nations signing these WIPO treaties, but in fact, only 37 countries have signed on, including the U.S. and Japan, along with the likes of Kyrgyzstan, Gabon, and Paraguay. We're not talking about full international support here, especially in contrast to the 149 signatories to the more general and long-standing Berne Convention for the Protection of Literary and Artistic Works.)

<http://www.wipo.int/treaties/ip/wct/>
<http://www.wipo.int/treaties/ip/berne/>

In particular, Professor Gillespie focused on three defenses used in the court case filed against Eric Corley, publisher of the hacker magazine 2600, by eight movie studios to prevent 2600 from publishing the DeCSS software. Although Eric Corley didn't create DeCSS, he made it available on the 2600 Web site. His lawyers' defenses focused on ways DeCSS might escape the anti-circumvention provisions in the DMCA, which was the law under which the case was being tried.

Let's look at these defenses, all of which the court eventually dismissed in ruling for the movie studios and enjoining 2600 magazine from posting the DeCSS code. A subsequent appeal also failed, and the defendants chose not to appeal again to the Supreme Court (probably a wise move - this particular case struck me as fairly weak).

<http://www.eff.org/IP/Video/MPAA_DVD_cases/2000 0830_ny_amended_opinion.pdf>
<http://www.eff.org/IP/Video/MPAA_DVD_cases/200111 28_ny_appeal_decision.html>

Create a Linux Player -- The primary defense that Eric Corley's legal team, funded by the Electronic Frontier Foundation (EFF), advanced was that CSS was reverse engineered and DeCSS written to further the development of a DVD player for Linux, which allegedly had no way of playing DVDs at the time (four players are available now; see the Linux Journal review linked below for details). Unfortunately, the judge deemed the defense utterly irrelevant because the DMCA offers no relief based on motivation. In short, if a technology violates the DMCA's anti-circumvention provisions, the purpose for which that technology was created simply doesn't matter. The judge also wasn't impressed with the fact that DeCSS is actually a Windows program, so although it could be argued that it was a necessary step in the creation of a Linux DVD player, it's a weak argument.

<http://www.linuxjournal.com/article.php?sid=564 4>

The obstacle that actually lies in the way of creating a DVD player is the lack of a key to decrypt the CSS encryption used on DVDs. The only way to come by such a key is to sign a contract licensing CSS from the DVD Copy Control Association (DVD CCA), a group made up of companies representing the movie studios, consumer electronics companies, and the computer industry. At $15,500, the licensing cost is not usurious, but the contract effectively prevents individuals and small organizations from licensing CSS. For instance, in the event of a material breach of contract, the licensee is liable for $1 million, and damages can grow to a maximum of $8 million. In addition, the contract prevents licensees from reverse engineering CSS or working in any way counter to the goal of CSS's protection of DVDs.

Put simply, the CSS license is the sort of thing only large companies can reasonably sign, so it's clear that the effect of the DVD CCA contract is to keep newcomers out of the cozy little club. Perhaps that wasn't a likely concern before the age of the Internet, but the rise of Linux and the open source movement shows that small, informal groups organized over the Internet can produce software that threatens the largest of companies.

The end result here is that innovation is stifled. Companies that license CSS cannot, even if they wanted to, produce products that consumers might like to buy, such as DVD recorders that could copy a DVD. That keeps new companies, niche players, or even independent programmers from competing with the consumer electronics giants with innovative features that in any way run afoul of CSS. So although the consumer electronics companies might not have minded consumers copying DVDs, since they would sell the equipment to make that happen, it's worthwhile for them to abide by CSS to eliminates potential competition.

Equally as problematic is that the CSS license's numerous requirements force the consumer electronics firms to be technologically responsible for regulating our movie viewing and copying behaviors for the studios. Signing this draconian contract is an all-or-nothing deal, so the movie studios have cleverly managed to pass off the dirty work of technological regulation on everyone else (they just produce the content; the DVD and player manufacturers must implement CSS). It's a big step toward a trusted system in which all the parties are bound by the CSS contract.

(As an aside, another effect of the CSS contracts is also to move the entire issue from the world of copyright law, where there is at least some presumption of needing to benefit the public, into the world of contract law, which doesn't give a damn about the public good. If this continues to the logical extreme, the concept of copyright, and unauthorized access to any content, could be locked up forever in simple contracts that lie underneath a trusted system's technologies, all backed up by the DMCA's anti-circumvention provisions.)

Perform Encryption Research -- Another defense that Eric Corley's lawyers put forth was that DeCSS was created as research into the CSS encryption method, since the DMCA does allow copy-prevention technologies to be circumvented for encryption research. However, the DMCA specifically requires that the encrypted copy be obtained lawfully and that the person performing the research make a good faith effort to obtain authorization in advance. In addition, the decryption tools from such research may be shared only with collaborators for good faith research purposes - in other words, distributing these tools publicly isn't kosher.

Note the words good faith above. In determining whether encryption research is good faith, the judge said the court must determine whether the results are disseminated in a way that advances the state of knowledge of encryption technology, whether the person is engaged in legitimate study of work in encryption, and whether the results are communicated to the copyright owner in a timely fashion. Deciding that none of these tests were true of Eric Corley, the judge dismissed out of hand the claims that DeCSS had protection under the encryption research exception to the DMCA.

Looking past the specifics of this case, consider the ways in which encryption research is considered to be in good faith. You must be a legitimate researcher, have a goal of advancing the state of knowledge, and have at least made an effort to get authorization from the copyright owner. Now think about how these requirements completely disenfranchise the interested individuals and the Internet technical geek community. What does it take to be considered a legitimate researcher - a white coat, thick glasses, and a job with a university, corporation, or government body?

What we're seeing here is how the DMCA in essence props up the status quo, denying that legitimate research could be done outside the halls of academia or a company's R&D department. Left on the outside are the crazy ones, the misfits, the rebels, the troublemakers... oh hell, go read the rest of Here's to the crazy ones from Apple's Think Different ad campaign for yourself. Whether we're talking about Apple's target audience or the open source community that has had Microsoft running scared is immaterial. The point is that the DMCA, supported by this court ruling, prevents that sort of person from doing anything that's not sanctioned.

<http://www.apple.com/thinkdifferent/>

Report as a Journalist -- A third defense that Eric Corley's lawyers offered was that posting DeCSS was protected by the First Amendment's protection of the press, and by the First Amendment in general. It took the judge significantly longer to dispose of this defense, since free speech issues are notoriously tricky, but in the end, he concluded that the speech in this case is content-neutral due to the functional nature of the DeCSS code. He then went on to note that regulation of content-neutral speech is acceptable if it advances the government's interests and that preventing the copying of digital works is a government interest due to the existence of the Copyright Clause in the U.S. Constitution and the importance to the U.S. economy of exporting copyrighted materials.

If you haven't looked at the Constitution recently, the Copyright Clause reads, 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. Personally, I come down on the side of copyright existing to benefit society through the progress of science and the useful arts, and only secondarily to give authors and inventors exclusive rights. By my reading, the government interest thus lies in promoting the progress of science and the useful arts, and there's no question that the DMCA eliminates progress.

<http://www.law.cornell.edu/constitution/constit ution.articlei.html>

But I digress. The final result of the case was that Eric Corley and 2600 may not post DeCSS on their Web site or knowingly link their Web site to any other site on which DeCSS is posted. The decision was worded carefully so that linking in general would not be affected by the DMCA, but only in cases where those responsible for the link (a) know at the relevant time that the offending material is on the linked-to site, (b) know that it is circumvention technology that may not lawfully be offered, and (c) create or maintain the link for the purpose of disseminating that technology.

In other words, it's acceptable to link to DeCSS if your intent is not to disseminate DeCSS, but merely to report on its availability, a fact I proved to my satisfaction with a trivial Google search on download DeCSS that provided over 17,000 hits, many of them still functional. You can verify this for yourself; just remember that DeCSS is only for Windows.

<http://www.google.com/search?q=download+DeCSS>

Here's where Professor Gillespie's argument becomes a bit more speculative. Although the court went no further in this case, he suggested that in any future cases in which the legitimacy of linking was called into question, he felt that the court would include in its deliberation the nature of the publication in question. For example, if the New York Times chose to link to DeCSS or some other technology that violated the DMCA (as in fact the San Jose Mercury News and Wired News have, in making the point that a ban on linking is seriously problematic), he felt that the court would have little trouble accepting the journalistic intent of the link. On the other hand, if some silly little electronic newsletter aimed at Macintosh and Internet users were to perform the same action, he was concerned that it would be more difficult to make the same defense. And if TidBITS wouldn't match up to the journalistic level of the New York Times in the eyes of a theoretical court, what about a blogger?

The end result would be that this court's interpretation of the DMCA could have the same effect of stabilizing the large news organizations in favor of the small newsletters and bloggers who are redefining what journalism means in today's Internet-enabled world. Speaking as someone who has done some of that redefining over the last 12 years, that worries me.

Regime of Arrangement -- In the end, Professor Gillespie argues that the true power of the DMCA is not so much related to its effect on copyright but these ways it weaves established organizations like large manufacturing corporations, research universities, and media conglomerates into what Professor Gillespie calls a regime of arrangement.

Don't assume that these established institutions are necessarily being co-opted against their will. Apple's Think Different campaign reads like a manifesto for the very people who are disenfranchised under this regime of arrangement, and yet Apple is a member of the DVD CCA, and, obviously, a licensee of CSS for the DVD hardware and software that comes with the Mac. The open source community has proved the power of teams of independent programmers as an alternative to the traditional software development model, not to mention the ivory towers of research institutions. Distance education hints at the decline of the traditional university, and entrenched media organizations have struggled for years with the way the Internet lets anyone be a publisher.

If there's one theme we take into the 21st century, it's decentralization, and you can see it everywhere. The PC overtaking the mainframe, Napster changing the face of music distribution despite the recording industry's best efforts, DeCSS causing the movie studios conniptions, Linux successfully challenging the mighty Microsoft's server operating systems, even the terrorist attacks on the World Trade Center and the Pentagon - all are examples of the power of decentralization and the ever-increasing clash between these forces of decentralization and the centralized power structures that control everything about our world. I have no answers here, but I'd note that despite the awesome power of both systems, I'm seeing the forces of decentralization making significant inroads.

What Can We Do? I've been attending a number of talks on copyright and intellectual property issues at Cornell over the last year. Almost without exception, the talks are warnings of dark times ahead (obviously, most are slanted toward the academic and library worlds), but at the same time, none have offered any suggestions for how we can work to reverse the efforts on the part of the Content Cartel to lock up our cultural heritage and stifle innovation for the future.

At a recent talk by Alan Davidson of the Center for Democracy and Technology (CDT), I chatted with Alan afterwards about this problem, and he agreed it was a concern, but had no silver bullet to prevent the hordes of well-funded Content Cartel lobbyists from having their way with our elected representatives. I, too, have trouble knowing what will be effective, but I offer these possibilities.

<http://www.cdt.org/>

• Spread the word to everyone you know. In most cases, the best argument is probably that the entire situation is a move on the part of big business to make everyone buy new consumer electronics and new copies of all of their content. If the Content Cartel gets their way, it will cost you. In some situations, making the intellectual commons argument - that our culture needs access to its cultural heritage to grow - can be effective, though it's generally too abstract. Try to avoid sounding like a zealot (I know it's hard: every time I hear of the latest attempt on the part of these companies to criminalize their customers, it makes me want to spit.)

• Support civil liberties organizations like the Electronic Frontier Foundation (EFF) and CDT that are working to protect our rights. As you'll see in the PayBITS block at the end of this article, I plan to donate all the proceeds from this article to the EFF to help do my part.

<http://www.eff.org/>

• Between 19-Nov-02 and 18-Dec-02, write to the Library of Congress with any evidence you can provide on whether non-infringing uses of certain types of copyrighted materials are likely to be adversely affected by the DMCA's anti-circumvention mechanisms. To get an idea of what they're looking for, I highly recommend reading Dan Bricklin's Copy Protection Robs the Future essay, in which he talks about his efforts to post an original copy of VisiCalc, the ground-breaking spreadsheet program he created.

<http://www.copyright.gov/1201/comment_forms/>
<http://www.bricklin.com/robfuture.htm>

• Express your concerns to your elected representatives whenever appropriate. EFF maintains an action center that makes it extremely easy to write your appropriate representatives. While you're at it, you might ask how it is that an entire industry is allowed to create a restrictive technology like CSS, require highly limiting contracts, and influence legislation (the DMCA). One of the industry witnesses in the Corley case testified that this three-pronged approach was exactly what the movie studios aimed at creating. Ironically, given that the end goal is a trusted system, this sounds a whole lot like the legal definition of a trust, which is a combination of corporations for the purpose of reducing competition and controlling prices throughout an industry.

<http://action.eff.org/>

I have to admit, I'm worried that none of this will be enough. The Content Cartel has the aura of celebrity on their side - they're protecting the rock stars and movie stars who sit at the pinnacle of today's society. They're the cool kids, whereas the people who campaign for civil liberties are often considered dull and overly earnest. My main ray of hope is that the reason most of the software industry voluntarily gave up copy protection technologies - primarily that consumers hated copy protection - will rise again, but unless we speak out now, all of our content may be locked up in a trusted system protected by the DMCA.

by Adam C. Engst <ace@tidbits.com>

Much has been written about what's wrong with the Digital Millennium Copyright Act (DMCA). After all, it's been used to jail programmers, threaten professors, and censor publications, and because of it, foreign scientists have avoided traveling to the U.S. and prominent researchers have withheld their work. In a white paper about the unintended consequences of the DMCA, the Electronic Frontier Foundation argues that the DMCA chills free expression and scientific research, jeopardizes fair use, and impedes competition and innovation. In short, this is a law that only the companies who paid for it could love.

<http://www.eff.org/IP/DMCA/20020503_dmca_conseq uences.html >
<http://www.educause.edu/issues/dmca.html>
<http://anti-dmca.org/>

Just who are we talking about here? Primarily the large movie studios and record labels, who own the copyrights on vast quantities of content and who have been working with one another and via their industry associations, the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA), to control how we are allowed to interact with that content. Their unity of purpose and storm-trooper tactics have led some to dub them the Content Cartel.

<http://www.riaa.org/>
<http://www.mpaa.org/>

However, the DMCA is merely one link in a chain that's being used by the Content Cartel and many others to restrict access to the shared cultural heritage of the world, and in the process, extract money from our pockets, stifle innovation and competition, and protect entrenched interests.

DMCA and Trusted Systems -- I recently attended a talk by Professor Tarleton Gillespie <tlg28@cornell.edu> of Cornell University in which he made a compelling argument for how the Content Cartel is using the legal force of the DMCA to direct us down a path where content cannot exist outside of a trusted system, which is a set of hardware, software, and file formats that all agree on what the user is allowed to do with a piece of content. (The trust here is between the pieces of the system, because the content owners don't trust their customers at all.) The trusted system's goals are simple - to eliminate all unauthorized uses and create a situation where we pay more for the content we consume.

A trusted system could prevent you not only from copying a CD or DVD, but also from listening to the CD more than a certain number of times in a day or skipping commercials on a DVD or on broadcast television. Along with requiring us to buy new hardware to play such content and buy new protected versions of the content we already own, a trusted system could have another ill effect. That's because it could prevent us from working with content we would create, using tools such as those Apple kindly provides in iMovie, iDVD, iTunes, and iPhoto. In the worst case scenario, Apple could lose not just the Mac's current digital media advantage in the marketplace, but the ability to work with digital media at all. See Cory Doctorow's article on the broadcast flag in TidBITS-642 for more on this disturbing possibility.

< http://db.tidbits.com/getbits.acgi?tbart=06901>

Professor Gillespie illustrated how this could happen with a discussion of the awkwardly named Content Scramble System (CSS), used to prevent people from copying DVDs, and the DeCSS software created by a Norwegian teenager with help from others on the Internet to build a Linux DVD player.

(A brief aside: DeCSS violates the DMCA's anti-circumvention provisions, which ban devices or services that are designed primarily to circumvent copy prevention technologies, that have only limited commercially significant purpose other than circumvention, or that are marketed for circumvention. The DMCA was signed into law in large part to bring the U.S. into compliance with a pair of World Intellectual Property Organization (WIPO) treaties that require anti-circumvention protections in the copyright law of signatory nations. You might think Norway would be included among the nations signing these WIPO treaties, but in fact, only 37 countries have signed on, including the U.S. and Japan, along with the likes of Kyrgyzstan, Gabon, and Paraguay. We're not talking about full international support here, especially in contrast to the 149 signatories to the more general and long-standing Berne Convention for the Protection of Literary and Artistic Works.)

<http://www.wipo.int/treaties/ip/wct/>
<http://www.wipo.int/treaties/ip/berne/>

In particular, Professor Gillespie focused on three defenses used in the court case filed against Eric Corley, publisher of the hacker magazine 2600, by eight movie studios to prevent 2600 from publishing the DeCSS software. Although Eric Corley didn't create DeCSS, he made it available on the 2600 Web site. His lawyers' defenses focused on ways DeCSS might escape the anti-circumvention provisions in the DMCA, which was the law under which the case was being tried.

Let's look at these defenses, all of which the court eventually dismissed in ruling for the movie studios and enjoining 2600 magazine from posting the DeCSS code. A subsequent appeal also failed, and the defendants chose not to appeal again to the Supreme Court (probably a wise move - this particular case struck me as fairly weak).

<http://www.eff.org/IP/Video/MPAA_DVD_cases/2000 0830_ny_amended_opinion.pdf>
<http://www.eff.org/IP/Video/MPAA_DVD_cases/200111 28_ny_appeal_decision.html>

Create a Linux Player -- The primary defense that Eric Corley's legal team, funded by the Electronic Frontier Foundation (EFF), advanced was that CSS was reverse engineered and DeCSS written to further the development of a DVD player for Linux, which allegedly had no way of playing DVDs at the time (four players are available now; see the Linux Journal review linked below for details). Unfortunately, the judge deemed the defense utterly irrelevant because the DMCA offers no relief based on motivation. In short, if a technology violates the DMCA's anti-circumvention provisions, the purpose for which that technology was created simply doesn't matter. The judge also wasn't impressed with the fact that DeCSS is actually a Windows program, so although it could be argued that it was a necessary step in the creation of a Linux DVD player, it's a weak argument.

<http://www.linuxjournal.com/article.php?sid=564 4>

The obstacle that actually lies in the way of creating a DVD player is the lack of a key to decrypt the CSS encryption used on DVDs. The only way to come by such a key is to sign a contract licensing CSS from the DVD Copy Control Association (DVD CCA), a group made up of companies representing the movie studios, consumer electronics companies, and the computer industry. At $15,500, the licensing cost is not usurious, but the contract effectively prevents individuals and small organizations from licensing CSS. For instance, in the event of a material breach of contract, the licensee is liable for $1 million, and damages can grow to a maximum of $8 million. In addition, the contract prevents licensees from reverse engineering CSS or working in any way counter to the goal of CSS's protection of DVDs.

Put simply, the CSS license is the sort of thing only large companies can reasonably sign, so it's clear that the effect of the DVD CCA contract is to keep newcomers out of the cozy little club. Perhaps that wasn't a likely concern before the age of the Internet, but the rise of Linux and the open source movement shows that small, informal groups organized over the Internet can produce software that threatens the largest of companies.

The end result here is that innovation is stifled. Companies that license CSS cannot, even if they wanted to, produce products that consumers might like to buy, such as DVD recorders that could copy a DVD. That keeps new companies, niche players, or even independent programmers from competing with the consumer electronics giants with innovative features that in any way run afoul of CSS. So although the consumer electronics companies might not have minded consumers copying DVDs, since they would sell the equipment to make that happen, it's worthwhile for them to abide by CSS to eliminates potential competition.

Equally as problematic is that the CSS license's numerous requirements force the consumer electronics firms to be technologically responsible for regulating our movie viewing and copying behaviors for the studios. Signing this draconian contract is an all-or-nothing deal, so the movie studios have cleverly managed to pass off the dirty work of technological regulation on everyone else (they just produce the content; the DVD and player manufacturers must implement CSS). It's a big step toward a trusted system in which all the parties are bound by the CSS contract.

(As an aside, another effect of the CSS contracts is also to move the entire issue from the world of copyright law, where there is at least some presumption of needing to benefit the public, into the world of contract law, which doesn't give a damn about the public good. If this continues to the logical extreme, the concept of copyright, and unauthorized access to any content, could be locked up forever in simple contracts that lie underneath a trusted system's technologies, all backed up by the DMCA's anti-circumvention provisions.)

Perform Encryption Research -- Another defense that Eric Corley's lawyers put forth was that DeCSS was created as research into the CSS encryption method, since the DMCA does allow copy-prevention technologies to be circumvented for encryption research. However, the DMCA specifically requires that the encrypted copy be obtained lawfully and that the person performing the research make a good faith effort to obtain authorization in advance. In addition, the decryption tools from such research may be shared only with collaborators for good faith research purposes - in other words, distributing these tools publicly isn't kosher.

Note the words good faith above. In determining whether encryption research is good faith, the judge said the court must determine whether the results are disseminated in a way that advances the state of knowledge of encryption technology, whether the person is engaged in legitimate study of work in encryption, and whether the results are communicated to the copyright owner in a timely fashion. Deciding that none of these tests were true of Eric Corley, the judge dismissed out of hand the claims that DeCSS had protection under the encryption research exception to the DMCA.

Looking past the specifics of this case, consider the ways in which encryption research is considered to be in good faith. You must be a legitimate researcher, have a goal of advancing the state of knowledge, and have at least made an effort to get authorization from the copyright owner. Now think about how these requirements completely disenfranchise the interested individuals and the Internet technical geek community. What does it take to be considered a legitimate researcher - a white coat, thick glasses, and a job with a university, corporation, or government body?

What we're seeing here is how the DMCA in essence props up the status quo, denying that legitimate research could be done outside the halls of academia or a company's R&D department. Left on the outside are the crazy ones, the misfits, the rebels, the troublemakers... oh hell, go read the rest of Here's to the crazy ones from Apple's Think Different ad campaign for yourself. Whether we're talking about Apple's target audience or the open source community that has had Microsoft running scared is immaterial. The point is that the DMCA, supported by this court ruling, prevents that sort of person from doing anything that's not sanctioned.

<http://www.apple.com/thinkdifferent/>

Report as a Journalist -- A third defense that Eric Corley's lawyers offered was that posting DeCSS was protected by the First Amendment's protection of the press, and by the First Amendment in general. It took the judge significantly longer to dispose of this defense, since free speech issues are notoriously tricky, but in the end, he concluded that the speech in this case is content-neutral due to the functional nature of the DeCSS code. He then went on to note that regulation of content-neutral speech is acceptable if it advances the government's interests and that preventing the copying of digital works is a government interest due to the existence of the Copyright Clause in the U.S. Constitution and the importance to the U.S. economy of exporting copyrighted materials.

If you haven't looked at the Constitution recently, the Copyright Clause reads, 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. Personally, I come down on the side of copyright existing to benefit society through the progress of science and the useful arts, and only secondarily to give authors and inventors exclusive rights. By my reading, the government interest thus lies in promoting the progress of science and the useful arts, and there's no question that the DMCA eliminates progress.

<http://www.law.cornell.edu/constitution/constit ution.articlei.html>

But I digress. The final result of the case was that Eric Corley and 2600 may not post DeCSS on their Web site or knowingly link their Web site to any other site on which DeCSS is posted. The decision was worded carefully so that linking in general would not be affected by the DMCA, but only in cases where those responsible for the link (a) know at the relevant time that the offending material is on the linked-to site, (b) know that it is circumvention technology that may not lawfully be offered, and (c) create or maintain the link for the purpose of disseminating that technology.

In other words, it's acceptable to link to DeCSS if your intent is not to disseminate DeCSS, but merely to report on its availability, a fact I proved to my satisfaction with a trivial Google search on download DeCSS that provided over 17,000 hits, many of them still functional. You can verify this for yourself; just remember that DeCSS is only for Windows.

<http://www.google.com/search?q=download+DeCSS>

Here's where Professor Gillespie's argument becomes a bit more speculative. Although the court went no further in this case, he suggested that in any future cases in which the legitimacy of linking was called into question, he felt that the court would include in its deliberation the nature of the publication in question. For example, if the New York Times chose to link to DeCSS or some other technology that violated the DMCA (as in fact the San Jose Mercury News and Wired News have, in making the point that a ban on linking is seriously problematic), he felt that the court would have little trouble accepting the journalistic intent of the link. On the other hand, if some silly little electronic newsletter aimed at Macintosh and Internet users were to perform the same action, he was concerned that it would be more difficult to make the same defense. And if TidBITS wouldn't match up to the journalistic level of the New York Times in the eyes of a theoretical court, what about a blogger?

The end result would be that this court's interpretation of the DMCA could have the same effect of stabilizing the large news organizations in favor of the small newsletters and bloggers who are redefining what journalism means in today's Internet-enabled world. Speaking as someone who has done some of that redefining over the last 12 years, that worries me.

Regime of Arrangement -- In the end, Professor Gillespie argues that the true power of the DMCA is not so much related to its effect on copyright but these ways it weaves established organizations like large manufacturing corporations, research universities, and media conglomerates into what Professor Gillespie calls a regime of arrangement.

Don't assume that these established institutions are necessarily being co-opted against their will. Apple's Think Different campaign reads like a manifesto for the very people who are disenfranchised under this regime of arrangement, and yet Apple is a member of the DVD CCA, and, obviously, a licensee of CSS for the DVD hardware and software that comes with the Mac. The open source community has proved the power of teams of independent programmers as an alternative to the traditional software development model, not to mention the ivory towers of research institutions. Distance education hints at the decline of the traditional university, and entrenched media organizations have struggled for years with the way the Internet lets anyone be a publisher.

If there's one theme we take into the 21st century, it's decentralization, and you can see it everywhere. The PC overtaking the mainframe, Napster changing the face of music distribution despite the recording industry's best efforts, DeCSS causing the movie studios conniptions, Linux successfully challenging the mighty Microsoft's server operating systems, even the terrorist attacks on the World Trade Center and the Pentagon - all are examples of the power of decentralization and the ever-increasing clash between these forces of decentralization and the centralized power structures that control everything about our world. I have no answers here, but I'd note that despite the awesome power of both systems, I'm seeing the forces of decentralization making significant inroads.

What Can We Do? I've been attending a number of talks on copyright and intellectual property issues at Cornell over the last year. Almost without exception, the talks are warnings of dark times ahead (obviously, most are slanted toward the academic and library worlds), but at the same time, none have offered any suggestions for how we can work to reverse the efforts on the part of the Content Cartel to lock up our cultural heritage and stifle innovation for the future.

At a recent talk by Alan Davidson of the Center for Democracy and Technology (CDT), I chatted with Alan afterwards about this problem, and he agreed it was a concern, but had no silver bullet to prevent the hordes of well-funded Content Cartel lobbyists from having their way with our elected representatives. I, too, have trouble knowing what will be effective, but I offer these possibilities.

<http://www.cdt.org/>

• Spread the word to everyone you know. In most cases, the best argument is probably that the entire situation is a move on the part of big business to make everyone buy new consumer electronics and new copies of all of their content. If the Content Cartel gets their way, it will cost you. In some situations, making the intellectual commons argument - that our culture needs access to its cultural heritage to grow - can be effective, though it's generally too abstract. Try to avoid sounding like a zealot (I know it's hard: every time I hear of the latest attempt on the part of these companies to criminalize their customers, it makes me want to spit.)

• Support civil liberties organizations like the Electronic Frontier Foundation (EFF) and CDT that are working to protect our rights. As you'll see in the PayBITS block at the end of this article, I plan to donate all the proceeds from this article to the EFF to help do my part.

<http://www.eff.org/>

• Between 19-Nov-02 and 18-Dec-02, write to the Library of Congress with any evidence you can provide on whether non-infringing uses of certain types of copyrighted materials are likely to be adversely affected by the DMCA's anti-circumvention mechanisms. To get an idea of what they're looking for, I highly recommend reading Dan Bricklin's Copy Protection Robs the Future essay, in which he talks about his efforts to post an original copy of VisiCalc, the ground-breaking spreadsheet program he created.

<http://www.copyright.gov/1201/comment_forms/>
<http://www.bricklin.com/robfuture.htm>

• Express your concerns to your elected representatives whenever appropriate. EFF maintains an action center that makes it extremely easy to write your appropriate representatives. While you're at it, you might ask how it is that an entire industry is allowed to create a restrictive technology like CSS, require highly limiting contracts, and influence legislation (the DMCA). One of the industry witnesses in the Corley case testified that this three-pronged approach was exactly what the movie studios aimed at creating. Ironically, given that the end goal is a trusted system, this sounds a whole lot like the legal definition of a trust, which is a combination of corporations for the purpose of reducing competition and controlling prices throughout an industry.

<http://action.eff.org/>

I have to admit, I'm worried that none of this will be enough. The Content Cartel has the aura of celebrity on their side - they're protecting the rock stars and movie stars who sit at the pinnacle of today's society. They're the cool kids, whereas the people who campaign for civil liberties are often considered dull and overly earnest. My main ray of hope is that the reason most of the software industry voluntarily gave up copy protection technologies - primarily that consumers hated copy protection - will rise again, but unless we speak out now, all of our content may be locked up in a trusted system protected by the DMCA.

This is nothing new. AOL has been doing this to virtually any domain name that has the letters "A" "O" and "L" in sequential form for as long as I can remember.

I also had an a-o-l domain name. "EnhanceAOL.com" was my site before I got a cease and desist from Arent Fox claiming that I was diluting their trademark. My site was an aol add-on site - software that actually improved upon their client software (hence the term 'enhance aol'. They don't look at the "content" of your site. They don't care if your trying to save the poor starving children of the world. If you have "aol" somewhere in your domain, they're going to take it.

Don't believe me? I found this site: search.wipo.int which lists at least some of the AOL domains that have been repo-ed by AOL -- If anyone knows of a better source please post because I know there's been more.

Here, read the

Berne Convention.

Username: guest Password:guest

It doesn't have much, but there is a pretty picture!

-jbn

I read through the decisions for the unix.com and unix.org cases, and can see some parts of the answer to kyler's question If the domain unix.com doesn't violate the UNIX trademark, what gives them the right to take unix.net away from me and unix.org away from Michael?

The unix.com domain had been in use for some time for a discussion forum where the main topic was unix, they kept their domain registration despite it including the trademark. The unix.org domain had not been actively used for anything, and the information provided about what it had been intended to be used for was seen by the arbitrators as indicating an intent to make money as a result of attracting visitors, with the unix trademark being part of what attracted visitors.

The argument about 'unix' having become generic failed in both cases.

The arbitrators seem to be deciding on the basis of whether or not the domain is actually being used for some legitimate purpose. Mere ownership of the trademark does not seem to be enough for victory. It is good that the holders of unix.com won, but if the report of the unix.org case is accurate as to the facts, then I think that was a reasonable decision.

I also tracked down the decision for the unix.net case http://arbiter.wipo.int/domains/decisions/html/200 2/d2002-0296.html, and among the things it says is The Respondent failed to file any evidence that might lead the Panel to the inference that the Respondent has rights or a legitimate interest in the domain name. Not having seen the site in its original form I can't tell for myself whether or not the arbitrators are right to judge that there was no legitimate interest. They seem to have formed the opinion that the site was really a web designer advertising their services, and using someone else's trademark to attract visitors. Perhaps someone who visited the site in its old form can comment.

Corrupt

Whats better? Apparently more people like domain-name rapists than they like fæces-obsessed crapflooders. Could this be possible?

On a related note, no one likes Trollaxor. Poor troll...

Whats better? Apparently more people like domain-name rapists than they like fæces-obsessed crapflooders. Could this be possible?

On a related note, no one likes Trollaxor. Poor troll...

Oh, almost forgot:

____________________

Change Log:

• Subtle changes to most verses. It sounded really gay before.
• Removed all references to Tacos pud. May have been high at time. Will investigate further.
• Finally think I have
• goat sex written correctly in German. I think. Arschficken?

© 2002 Serial Troller. Permission to reproduce this document is granted provided that you send all the bukkake porn you can find to serialtroller@hotmail.com.

Whats better? Apparently more people like domain-name rapists than they like fæces-obsessed crapflooders. Could this be possible?

On a related note, no one likes Trollaxor. Poor troll...

Whats better? Apparently more people like domain-name rapists than they like fæces-obsessed crapflooders. Could this be possible?

On a related note, no one likes Trollaxor. Poor troll...

We have sensible Internet legislation, as opposed to the U.S. -- after all it's the U.S. who started with the DMCA and the like.

Not completely true. WIPO (the World Intellectual Property Organization) first came up with a DMCA like treaty which countries (like the US) ratified, and then wrote legislation (in the US, the DMCA) to enforce.

The DMCA has an international origin.

Disconnect yourself.

Senator Hollings is going to do that for us.

After CBDTPA passes there will be no Internet in the US, just a TCP/IP based conduit for pay-per-view content from the media conglomerates to the consumers.

I just find the precedent that someone gets fined $1.8M for having domains that are kind of similar to the domains that some big companies have scary. A figure that large seems to come out of thin air. I mean, who got harmed? The advertisers got their money's worth, and no kid is going to confuse the product of "cartoonnetwork.com" with a bunch of big breasted women.

Particularly chilling is that WIPO considered registration of "guinesssucks.com" a trademark violation in his case (trademarks are only intended to identify a specific product; they are not intended to let trademark owners control what people say about the product).

I think this is a dangerous threat to free speech. Sure, this particular guy isn't particularly nice. But what if you or I want to create a web site "sony-service-sucks.com", where we exchange grievances about Sony service and perhaps organize a class action lawsuit? What if your domain name happens to be confusingly similar to someone's trademark and they don't consider your business legitimate and have the legal dollars to "prove" it?

Trademark holders are trying to expand their right from being able to merely control that a trademark refers without confusion to their product to a right of complete control of who uses the trademark under what circumstances in any domain, and to prohibit any kind of negative speech about their product. And they are succeeding. That should worry us all.

Though I don't agree with some of the statements in the opinion, I found it completely persuasive on the relevant points:

• The first registrant's real name was "Lyle Frampton" and not "Peter Frampton" (the court seems to accept that the registrant's full name is "Lyle Peter Frampton" but notes that no proof was actually given)

• The web site showed logos copied from the web site of the music artist Peter Frampton

• The web site contains commercial links to resellers of music and music equipment associated with the "famous music artist" and not the original registrant

• Although the web site does not offer the domain for sale, the web site's text (as quoted in the opinion) reads like a classic "join with me to exploit this famous domain" instead of being a page about the registrant (Mr. Frampton):

  Frampton Enterprises, Inc.
  Entertainment!/Income Opportunities!/Shopping!
  @ WWW.PETERFRAMPTON.COM
  A Monster Business Development Opportunity!
  Unlimited Income Potential!
  "A New Life" You Must See This!
  FRAMPTON4U@AOL.COM
  Please! Send: Your Full Name/Address/ Phone #/ Your Resume in Text Only!
  Then Call (ASAP)
  Mr. Frampton
  (727)584-0395
  For Your Lifetime Career Opportunity Interview!
  Now Hiring for Key Corporate Regional / Filed Manager Positions in USA.
  

This doesn't sound like a close case to me, unless you hide or distort some of the facts as stated in the published opinion.