Digital Convergence says that it wants to protect its IP. However, it has yet to make clear what IP it wants to protect and under what legal theory. Come on Digital Convergence... say something more intelligent than just "we don't like what you are doing, so stop it".
Althought I generally agree with Jon Katz's writings, I have to disagree here. Yes, in an intelligent world, corporations would change their business models to remain competitive. But that is not the world we live in. Corporations would rather change the law than change the way they do business. That is why movie studios fought videotape and why they are fighting OpenDVD. True, they may not be able to stop reverse engineering completely, but they can create (if the courts and congress let them) a very strong chilling effect. It may not be perfect censorship, but it is effective censorship nonetheless.
Every seems to note that Time Warner blew moving onto the Internet and now has been bought out by AOL. However, what seems lost is that AOL needed Time Warner. Without lots of content, AOL is just another commodity ISP, or would be in a few years. AOL's growth would ultimately falter and their problems with customers would come back and haunt them as Internet connections become a commmodity industry. By buying Time Warner, AOL is moving away from being a commodity pipe and becoming content provider...high bandwidth content provider, most importantly.
First, with regard to NSI above. NSI did not remove etoy.com from their DNS based upon opinion. They removed etoy.com based upon a valid U.S. court order. I do not fault them for obeying a judge's order.
Second, I think they are also courting public opinion in order to garner favorable attention for their lobbying efforts in Washington. Even if they lose the case, they will try to get the law changed so that they don't lose the next case. Favorable publicity will help them.
Too Close to a Horizontal Monopoly
on
AOL Nation
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· Score: 1
Time Warner owns a significant cable market share. Broadband is the future and AOL wants to control the pipe. Right now, of course, AOL is trying to act nice...but given half the chance they will force people who want broadband to take AOL or accept second rate service from a disfavored ISP. Content + Delivery is a bad combination in these days of merger madness.
Copy protection is another major sticking point. Consumers will not purchase high-priced digital TV sets if there is not high-quality digital programming available. Just look at the explosion of DVD sales now that Hollywood is making product available for that market.
I appreciate the need for content owners to protect their product in the digital world. But this problem has to be solved. And it can be solved.
Here too, the Commission has encouraged negotiations between content providers and distributors and CE manufacturers. 5C appears to be the most promising copy protection technology. But there remain significant licensing and implementation issues.
Then there are the naysayers. Parties who say there can be no viable copy protection solution . . . that if programming is made available, there will be theft, and that therefore the options are either theft or no programming at all.
But I reject this all-or-nothing approach. Through the creative use of the technology, we can both get good programming to the public and protect the rights of its creators.
Consumers can have choice without theft. The technology can be used, for example, to limit use of the programming to one copy, or one viewing, or multiple copies and viewings for a price. This was the concept behind Divix, [sic] even though that particular solution was not accepted by the marketplace. But the technology that presents the problem also offers the promise of a solution. We must not let the naysayers stop progress toward a solution.
FCC Chairman Kennard
The FCC simply does not get it. They want strong copy protection. If DVD hadn't already been a viable medium, the FCC would have tried to make DIVX the way to the future. Certainly Chairman Kennard seems to think that it was a good idea. Chairman Kennard probably would have tried to kill the VCR, given half a chance. Now we will have TVs that don't permit us to timeshift content, or have multiple viewings.
Cable operators, however, are hesitant to transfer too much of their network intelligence to the viewer's television. They worry about losing control of the viewer, because, for example, the viewer might use someone else's program guide.
You [the television/cable industries] also differ on how program tuning and scheduling information will be made available to consumer electronics devices, an issue that bears directly on the range of choice consumers will have in electronic programming guides
FCC Chairman Kennard
This is ridiculous. Just because I subscribe to a specific cable company (like I have a choice, since they are virtually monopolies), I must use my cable company's scheduling channel. This is ridiculous!
FCC Chairman Kennard should tell the cable companies to forget it...they have no right to control how the customer gets scheduling information. The FCC is supposed to be on the customer's side. What part of this doesn't the FCC get?
The Supreme Court itself declared timeshifting to be a perfectly legitimate use of the VCR, back when the TV and Movie people were trying to destroy the entire industry. I certainly hope that the FCC will not permit a copy-protection system that prevents timeshifting of high quality digital content. Copyright provides only a limited set of rights -- not absolute control over content.
Why should the government or corporations decide the zoning requirements? Shouldn't parents be somewhat responsible? If you don't want your children to see such materials, buy a commercial filtering program. I am sure that many, if not most, filter out etoy. If they don't, you can manually set it yourself, or ask them to add it to their black lists or whatever.
Don't make etoy do the work that you should be doing.
Hmmm...I own an avant garde theatre for a couple of years. You move in next door, open a toy store and then ask me to stop producing radical plays because it frightens some of the toystore customers.
If eToys didn't want to be associated with etoy, they should have thought of that before spending millions marketing their asinine name.
Luckily, the plaintiffs in this lawsuit brought it where the defendants and their supporters (such as EFF) could easily attend and make their voices heard. Future plaintiffs will probably not be as nice (although nice is a relative term here). Unlike eToys which sued a group of international artists mainly based in Switzerland in Los Angeles.
Next time they will probably sue in Nebraska or something.
"Our Intent Was Never to Silence Free Artistic Expression" said Etoys spokesperson Jonathan Cutler.
Wrong!
In their legal papers, Etoys frequently refers to pornographic images on etoy. In particular, they refer to a picture of a woman's naked breasts pierced by dozens of needles. What they fail to mention in their legal documents is that the picture is depicted beneath the caption "es ist der selde wind. Der die blumen bestaeubt und die haeuser zerstoert". This translates to: "it is the same wind that inseminates the flowers and destroys houses". Only a lawyer (in the worse sense of the term) would miss the point that this is obviously cultural commentary. One simple interpretation being that the same wind (sexual desire), can be both a positive force (loving union between two human beings) and a destructive force (degradation, etc.). This is art! To call it pornography is to claim that there is no artistic expression.
Moreover, eToys claimed unfair competion by etoy because of the sale of etoy.shares. Etoy.shares are obviously a parody of both the art market and the real market. It was blatantly tongue-in-cheek, and numerous disclosures of the artistic nature of the stock were made. However, eToys tried to silence this form of artistic expression by claiming that this constituted securities fraud. Only lawyers with no sense of honor or decency could fail to see the art. If this is not attempted suppression of free artistic expression, I don't know what is.
Finally, eToys referred to more art as "terrorism". Both the famous "digital hijacks" (where etoy manipulated search engines) and a photo of the Oklahoma bombing under the caption "such work needs a lot of training", were implicated as supporting terrorism. Totalitarian states are famous for branding artists as terrorists. Now corporations are getting into the act.
The suit cannot be dropped until both parties agree, since etoy has filed a countersuit against eToys. In addition, etoy should not permit the suit to be dropped without a proper settlement, including a legal recognition by eToys that etoy has complete rights to the etoy.com name. Etoy should ensure that eToys can never sue them again. Cash for reasonable legal fees should also be part of the settlement.
Some courts have made linking to certain materials illegal. But what, precisely, is the illegality? For example might this be illegal?: an example link.
However, would the same "link" be illegal if the HTML was omitted, for example: http://www.slashdot.org/ .
Clearly, there are serious First Amendment issues in the first case. However, the issues are even clearer in the second case. For example, if the second case were true, then it should also be illegal to print lists of such URLs in a print publication.
This Swedish ruling contrasts sharply with what is happening in the U.S. For example, a couple posting information from copyrighted "secret" teachings of the Church of Latter Day Saints ("Mormons") were enjoined from posting the information. They were also enjoined by a clueless judge from posting links to the copyrighted material that were published on another web site.
Just yesterday an article was published about the posting of so-called trade secrets with regard to DVD encryption. Among the many defendants, a large group of them are merely defendants because they posted links to places where you could get the encryption information.
I suppose that we are just going to have to get rid of the First Amendment in the U.S. After all, if I tell you that you can get bootleg or illegal information by flying to Hong Kong and frequenting the back alleys of the computer sections, I am protected by the First Amendment. However, if I link to the webpages of those Hong Kong pirates...I'm not permitted to do so.
Algorithms should not be patentable by themselves. After all, an algorithm is merely a formula or set of steps for solving a particular problem. As Turing proved, any logical algorithm can be made to run on a Turing Universal Machine, or computer. The problem with current patent law is that the courts and USPTO are permitting the patenting of the most general algorithms, simply because they can be implemented on a computer.
I am referring to AT&Ts recent announcement about sharing access to their high-speed cable system. Previously, AT&T had an exclusive deal with @home, but now will permit Mindspring and other ISPs to negotiate for access beginning in 2002 (when the contract with @home expires). Now, this isn't the best of all worlds...I would prefer goverment designation of AT&T's cable network as a "common carrier", but it is a step in the right direction. Of course, only time will tell. This may simply be a cynical move to forstall government intervention.
The issue may seem simple, but it is not. While libertarianism may seem an attractive solution, it ignores the economic realities of the IM market. Like telephone services, network effects play a big role. The more people use a single IM service, the more valuable that IM service becomes. IM is a classic example of a protocol that will, of practical necessity, coalesce around a single standard. It is economically inefficient for there to be multiple standards, and the lsoing standards will not last long (or if they do, will be only marginal players). That being the case, it is not clear at all that a proper legal regime should permit a single corporation to monopolize the resulting stndard. Nor is it clear that AOL can keep the standard proprietary, having made it freely available on the Internet for anyone to use (and not just AOL subscribers).
It is too soon to tell, but perhaps AT&T has wised up and realizes that the ISP market is a commodity business, and as such not terribly profitable. Profit margins for ISPs are razor thin and not likely to get any bigger. By opening their high bandwidth channel to multiple vendors (which is what AT&T seems to be doing), they are helping to assure this.
AOL is basically just a fancy ISP; without proprietary standards, there is very little ability for AOL to differentiate themselves from the rest of the ISP market (although more ISPs should follow AOL's model and make installation easier for non-techs). This is why what AT&T is doing is brilliant.
The fundemental principle underlying instant messaging schemes is identical to that underlying office productivity software. The software is *inherently* worthless and becomes worthwhile if and only if there is a critical mass of people who use it.
You can say the same thing about the telephone.
The real issue is not whether standards are neccesary (they aren't at this point and won't be beneficial until the technology matures) but whether companies have the right to use the networks of other companies.
Standards are beneficial, and if we waited until the technology matures we would never get anywhere. Heck, the Internet wouldn't exist because the standards are still immature and need serious improvement. Creating a standard does not mean there will be lock in. Standards, particularly well-developed ones that are inherently extensible, can evolve and develop (HTML 1.0 --> 4.0 --> XHTML).
On your second point, it is not clear what the limits should be on one company "using" the networks of other companies. What does "using" mean anyway? When I make a long distance call with AT&T from home I am "using" SNET's local switching equipment. SNET has no right to prevent that even though SNET "owns" the network. AOL (and other ISPs) are in a similar position. AOL and ISPs in general should have very strict limitations on what traffic they can be permitted to restrict. I favor a common carrier model, of course.
It is not clear that AOL has a right to decide who should and should not have access to their servers for purposes of sending messages to their clients. For legal purposes, AOL should be treated as if it is a "common carrier" of telecommunications services. In many ways AOL is the modern equivalent of a local telephone service provider and should have the same duties and responsibilites. Many other posters have analogized this dispute as one where one phone system cannot talk to another. They are more right than they may know. Your local Bell may "own" the circuit switching equipment, but that doesn't mean they can deny access to the that equipment by AT&T or MCI/Sprint.
Slashdot Mirror
The only answer to this problem is common carrier regulation of all mass distribution networks (dsl, cable, broadcast, satellite).
Digital Convergence says that it wants to protect its IP. However, it has yet to make clear what IP it wants to protect and under what legal theory. Come on Digital Convergence ... say something more intelligent than just "we don't like what you are doing, so stop it".
Althought I generally agree with Jon Katz's writings, I have to disagree here. Yes, in an intelligent world, corporations would change their business models to remain competitive. But that is not the world we live in. Corporations would rather change the law than change the way they do business. That is why movie studios fought videotape and why they are fighting OpenDVD. True, they may not be able to stop reverse engineering completely, but they can create (if the courts and congress let them) a very strong chilling effect. It may not be perfect censorship, but it is effective censorship nonetheless.
Every seems to note that Time Warner blew moving onto the Internet and now has been bought out by AOL. However, what seems lost is that AOL needed Time Warner. Without lots of content, AOL is just another commodity ISP, or would be in a few years. AOL's growth would ultimately falter and their problems with customers would come back and haunt them as Internet connections become a commmodity industry. By buying Time Warner, AOL is moving away from being a commodity pipe and becoming content provider...high bandwidth content provider, most importantly.
Second, I think they are also courting public opinion in order to garner favorable attention for their lobbying efforts in Washington. Even if they lose the case, they will try to get the law changed so that they don't lose the next case. Favorable publicity will help them.
Time Warner owns a significant cable market share. Broadband is the future and AOL wants to control the pipe. Right now, of course, AOL is trying to act nice...but given half the chance they will force people who want broadband to take AOL or accept second rate service from a disfavored ISP. Content + Delivery is a bad combination in these days of merger madness.
The FCC simply does not get it. They want strong copy protection. If DVD hadn't already been a viable medium, the FCC would have tried to make DIVX the way to the future. Certainly Chairman Kennard seems to think that it was a good idea. Chairman Kennard probably would have tried to kill the VCR, given half a chance. Now we will have TVs that don't permit us to timeshift content, or have multiple viewings.
This is ridiculous. Just because I subscribe to a specific cable company (like I have a choice, since they are virtually monopolies), I must use my cable company's scheduling channel. This is ridiculous!
FCC Chairman Kennard should tell the cable companies to forget it...they have no right to control how the customer gets scheduling information. The FCC is supposed to be on the customer's side. What part of this doesn't the FCC get?
The Supreme Court itself declared timeshifting to be a perfectly legitimate use of the VCR, back when the TV and Movie people were trying to destroy the entire industry. I certainly hope that the FCC will not permit a copy-protection system that prevents timeshifting of high quality digital content. Copyright provides only a limited set of rights -- not absolute control over content.
IRELL & MANELLA, LLP
1800 Avenue of the Stars, Suite 900
Los Angeles, CA 90067-4276
(310) 277-1010
Bruce A. Wessel (116734)
phone (310) 203-7045
fax (310) 203-7199
email bwessel@irell.com
Don't make etoy do the work that you should be doing.
Hmmm...I own an avant garde theatre for a couple of years. You move in next door, open a toy store and then ask me to stop producing radical plays because it frightens some of the toystore customers.
If eToys didn't want to be associated with etoy, they should have thought of that before spending millions marketing their asinine name.
Next time they will probably sue in Nebraska or something.
What is going to happen on the 14th?
"Our Intent Was Never to Silence Free Artistic Expression" said Etoys spokesperson Jonathan Cutler.
Wrong!
In their legal papers, Etoys frequently refers to pornographic images on etoy. In particular, they refer to a picture of a woman's naked breasts pierced by dozens of needles. What they fail to mention in their legal documents is that the picture is depicted beneath the caption "es ist der selde wind. Der die blumen bestaeubt und die haeuser zerstoert". This translates to: "it is the same wind that inseminates the flowers and destroys houses". Only a lawyer (in the worse sense of the term) would miss the point that this is obviously cultural commentary. One simple interpretation being that the same wind (sexual desire), can be both a positive force (loving union between two human beings) and a destructive force (degradation, etc.). This is art! To call it pornography is to claim that there is no artistic expression.
Moreover, eToys claimed unfair competion by etoy because of the sale of etoy.shares. Etoy.shares are obviously a parody of both the art market and the real market. It was blatantly tongue-in-cheek, and numerous disclosures of the artistic nature of the stock were made. However, eToys tried to silence this form of artistic expression by claiming that this constituted securities fraud. Only lawyers with no sense of honor or decency could fail to see the art. If this is not attempted suppression of free artistic expression, I don't know what is.
Finally, eToys referred to more art as "terrorism". Both the famous "digital hijacks" (where etoy manipulated search engines) and a photo of the Oklahoma bombing under the caption "such work needs a lot of training", were implicated as supporting terrorism. Totalitarian states are famous for branding artists as terrorists. Now corporations are getting into the act.
Etoys LIES!
The suit cannot be dropped until both parties agree, since etoy has filed a countersuit against eToys. In addition, etoy should not permit the suit to be dropped without a proper settlement, including a legal recognition by eToys that etoy has complete rights to the etoy.com name. Etoy should ensure that eToys can never sue them again. Cash for reasonable legal fees should also be part of the settlement.
Some courts have made linking to certain materials illegal. But what, precisely, is the illegality? For example might this be illegal?: an example link.
However, would the same "link" be illegal if the HTML was omitted, for example: http://www.slashdot.org/ .
Clearly, there are serious First Amendment issues in the first case. However, the issues are even clearer in the second case. For example, if the second case were true, then it should also be illegal to print lists of such URLs in a print publication.
This Swedish ruling contrasts sharply with what is happening in the U.S. For example, a couple posting information from copyrighted "secret" teachings of the Church of Latter Day Saints ("Mormons") were enjoined from posting the information. They were also enjoined by a clueless judge from posting links to the copyrighted material that were published on another web site.
Just yesterday an article was published about the posting of so-called trade secrets with regard to DVD encryption. Among the many defendants, a large group of them are merely defendants because they posted links to places where you could get the encryption information.
I suppose that we are just going to have to get rid of the First Amendment in the U.S. After all, if I tell you that you can get bootleg or illegal information by flying to Hong Kong and frequenting the back alleys of the computer sections, I am protected by the First Amendment. However, if I link to the webpages of those Hong Kong pirates...I'm not permitted to do so.
Algorithms should not be patentable by themselves. After all, an algorithm is merely a formula or set of steps for solving a particular problem. As Turing proved, any logical algorithm can be made to run on a Turing Universal Machine, or computer. The problem with current patent law is that the courts and USPTO are permitting the patenting of the most general algorithms, simply because they can be implemented on a computer.
I am referring to AT&Ts recent announcement about sharing access to their high-speed cable system. Previously, AT&T had an exclusive deal with @home, but now will permit Mindspring and other ISPs to negotiate for access beginning in 2002 (when the contract with @home expires). Now, this isn't the best of all worlds...I would prefer goverment designation of AT&T's cable network as a "common carrier", but it is a step in the right direction. Of course, only time will tell. This may simply be a cynical move to forstall government intervention.
The issue may seem simple, but it is not. While libertarianism may seem an attractive solution, it ignores the economic realities of the IM market. Like telephone services, network effects play a big role. The more people use a single IM service, the more valuable that IM service becomes. IM is a classic example of a protocol that will, of practical necessity, coalesce around a single standard. It is economically inefficient for there to be multiple standards, and the lsoing standards will not last long (or if they do, will be only marginal players). That being the case, it is not clear at all that a proper legal regime should permit a single corporation to monopolize the resulting stndard. Nor is it clear that AOL can keep the standard proprietary, having made it freely available on the Internet for anyone to use (and not just AOL subscribers).
It is too soon to tell, but perhaps AT&T has wised up and realizes that the ISP market is a commodity business, and as such not terribly profitable. Profit margins for ISPs are razor thin and not likely to get any bigger. By opening their high bandwidth channel to multiple vendors (which is what AT&T seems to be doing), they are helping to assure this.
AOL is basically just a fancy ISP; without proprietary standards, there is very little ability for AOL to differentiate themselves from the rest of the ISP market (although more ISPs should follow AOL's model and make installation easier for non-techs). This is why what AT&T is doing is brilliant.
The fundemental principle underlying instant messaging schemes is identical to that underlying office productivity software. The software is *inherently* worthless and becomes worthwhile if and only if there is a critical mass of people who use it.
You can say the same thing about the telephone.
The real issue is not whether standards are neccesary (they aren't at this point and won't be beneficial until the technology matures) but whether companies have the right to use the networks of other companies.
Standards are beneficial, and if we waited until the technology matures we would never get anywhere. Heck, the Internet wouldn't exist because the standards are still immature and need serious improvement. Creating a standard does not mean there will be lock in. Standards, particularly well-developed ones that are inherently extensible, can evolve and develop (HTML 1.0 --> 4.0 --> XHTML).
On your second point, it is not clear what the limits should be on one company "using" the networks of other companies. What does "using" mean anyway? When I make a long distance call with AT&T from home I am "using" SNET's local switching equipment. SNET has no right to prevent that even though SNET "owns" the network. AOL (and other ISPs) are in a similar position. AOL and ISPs in general should have very strict limitations on what traffic they can be permitted to restrict. I favor a common carrier model, of course.
It is not clear that AOL has a right to decide who should and should not have access to their servers for purposes of sending messages to their clients. For legal purposes, AOL should be treated as if it is a "common carrier" of telecommunications services. In many ways AOL is the modern equivalent of a local telephone service provider and should have the same duties and responsibilites. Many other posters have analogized this dispute as one where one phone system cannot talk to another. They are more right than they may know. Your local Bell may "own" the circuit switching equipment, but that doesn't mean they can deny access to the that equipment by AT&T or MCI/Sprint.