MythTV and any existing HD-capture cards will remain legal.
As proposed (and earlier implemented and struck down), the broadcast flag rule regulates only hardware manufactured after it takes effect. The flag rule would require the hardware that demodulates broadcast TV to implement DRM in response to "flagged" broadcasts. Existing hardware can lawfully ignore the flag, but new hardware would have to be "robust against user modification" -- incompatible with open-source PVR software.
Get your HD-capable cards now, and tell your representatives to reject broadcast flags.
To clarify EFF's position, we're not involved in the case at this point. We do strongly support Farechase's right to access a publicly available website and repost uncopyrightable facts gathered from it.
We may get involved with the case as it proceeds, but for the moment, we've just posted a copy of the injunction for reference.
The Fifth Circuit recently overruled that panel opinion, holding that people could not be barred by copyright from reading or copying "the law". See here for more.
Eldred's arguments are focused on the retroactive extension, but the petitioners also argue that the provisions are "inseverable" -- if the Court strikes down the extension of existing copyrights, it should strike the whole law, including the extension of future copyrights.
(The arguments against severability are that Congress wouldn't have passed just the future extension, all the lobbying was for the extension of existing works, and the Court shouldn't be in the business of rewriting flawed legislation.)
There's also an index of the Government's papers analyzing and responding to the comments at http://cyber.law.harvard.edu/msdoj/
(along with the revised proposed final judgment and most of the other filings in the case)
The plaintiffs are a diverse group who use public domain works in different ways -- some commercial and some not. Eric Eldred's Eldritch Press is a free online archive; a church choir director wants to perform works of Charles Ives and Ralph Vaughan Williams; a not-for-profit history press wants to publish geneaologies; a music publisher wants to sell scores; Dover wants to sell paperbacks.
The point of including such a range is to show that expanding the public domain isn't anti-commercial. Limiting copyright terms "promote[s] progress" for the public and commercial users better than locking works under copyright control for another 20 years. (In addition, to get to court at all, plaintiffs had to demonstrate standing, meaning they had to show concretely how they are harmed by the law they are challenging.)
They're choosing to take advantage of the "safe harbor" provision for ISPs (DMCA section 512, not the anticircumvention rules). 512(c) immunizes ISPs from liability for postings of their users, provide they follow "notice and takedown" procedures including the listing of a designated agent.
Even if they list an agent, service providers still have the option of refusing to remove material if they get a notice of claimed copyright infringement, and of taking their chances in court. The subscriber receiving a claim of infringement can also file a counter-notification asserting that the material is legally posted.
After the Sonny Bono Copyright Term Extension Act, corporate copyrights last 95 years from the work's creation. "Effectively forever" when it comes to software, but not based on the lifetime of the corporation.
See this app for a demonstration how little present value Sonny's extra 20 years adds.
But see Nat'l Basketball Assoc. v. Motorola (2d Cir. 1997), for a narrower reading of when a misappropriation claim will stand. The Second Circuit dismissed the NBA's claim against Motorola's basketball-scores-by-pager service (holding that the state law misappropriation claim was preempted by federal copyright law, which in turn did not protect the factual reporting of game scores). I believe the PGA Tour court distinguished Motorola by saying the real-time data PGA reported wouldn't be collected if there were no protection for the PGA Tour's effort, as opposed to basketball scores which would be generated in any event and Motorola picked up from publicly available TV broadcasts .
OTOH, if database protection passes, preemption won't offer even the weak shield it currently does...
So if you're a member of the affected class, go object!
Someone has to tell the judge that these settlements are worthless to all but the "class" attorneys (who like to raise the paper value of the coupons so it looks as though their fees are a reasonable percentage of the "settlement value," but are perfectly willing to remind the defendants in negotiations how few class members are likely to cash in their coupons).
Since you will be teaching creators of multimedia, I hope you'll take a moment to explain why the recording industry's hyper-protectionism and copy control is harmful to creators who want to learn from or build on the work of their predecessors.
DVD may be a wonderful format for storage of multimedia works, but if it is burdened with CSS locks, it is far less useful for playback -- another artist cannot use excerpts from the work in his own creation or juxtapose them for comment or criticism, even when those are clearly fair uses. He is technologically (and possibly legally, if those fighting to uphold the DMCA are successful) barred from sampling, creating montages, or adapting earlier works. Further, the locks burden audiences for the work, who may be unable to watch them on a given machine, in a chosen sequence, or to view DVDs imported from another region. In fact, you yourself may experience these difficulties if you wish to prepare several DVD movies for classroom comparison. (If you do, please let us know.)
I hope you will encourage the artists, whose work these controls are supposedly protecting, to reject locks that prevent their audiences from making use of the works they create.
More information on the DVD case, Universal v. Reimerdes, is available at Openlaw DVD.
One possible bright spot for Napster -- in a decision that otherwise says it may be held liable for the transfer of copyrighted works if it is given notice of the files -- is the court's acknowledgment that "Napster's system does not currently appear to allow Napster access to users' MP3 files."
Napster may be required to use the architecture of its service to block access to files whose names match those of infringing works, but it's not forced to change the system to prevent those works from being listed under alternate names, for example. "Napster... bears the burden of policing the system within the limits of the system." Filesharing can go on.
The 9th Cir. gives a bit more credence than the district court to the Sony defense. The problem is that Napster actually knew about and promoted the service's unauthorized copying, not merely that the service was capable of such uses.
There are plenty of other troubling aspects, including the Court's dismissal in a few lines of Napster's First Amendment defenses; its finding that most of Napster's uses were not fair, in part because record companies might begin to exploit a market for digital distribution; and its willingness to find "commercial" activity.
The plaintiffs can probably bog the service down pretty well with numerous notices of infringing files, but they can't make Napster do all the work for them.
It's also a crude form of price discrimination. Even if they didn't care about the marketing info, they'd give you a long form to fill out just to make it more difficult to claim the rebate.
By adding nuisance effort to getting a discount (whether filling rebate forms or clipping coupons), retailers can effectively sell at a higher price to those put off by the nuisance and a lower (but still profitable) price to more who might otherwise pass up the product.
The studios' response brief is due Feb. 19, and their amici must file by Feb. 26. Then 2600/EFF gets a reply, as appellant. No doubt the MPAA will trumpet any amicus briefs filed on the studios' behalf, but they haven't been so open in the preparation.
If Digital Convergence has any "intellectual property" claim, it is most probably patent -- and without seeing specifics, I'd be dubious about even that. (Query how a process for Web information retrieval triggered by the scanning of a bar code is any innovation over a library's retreival of remote database records when it scans a book at checkout.)
The obvious answer is that the DMCA changes the picture. Pre-DMCA, Connectix was sued for copyright infringement -- copying the Sony BIOS before clean-room designing an emulator. Post-DMCA, 2600 is sued for trafficking in a circumvention device, in violation of 1201(a)(2).
Connectix was found to have engaged in infringing copying but won on the defense of fair use. Its temporary copies were necessary to gain access to the unprotectable functional elements of the Playstation BIOS, and its resulting emulator was a transformative use of the copy. Judge Kaplan told the defendants in the DeCSS case that fair use was not a defense to circumvention of access control devices. That's still a major point of contention, of course.
But, it's not over yet.
We need to draw a closer parallel between the cases, to argue that the DMCA did not so change the landscape and thus that the reverse engineering and interoperability endorsed by the 9th Circuit must still be permitted. There's lots of great language in the Connectix opinion that claims of copyright infringement can't be used to cut off access to unprotected ideas and functional elements. Can we extend that logic to say that even "access controls" endorsed by the DMCA can't be used to cut off that same unprotected information or fair use of the underlying content? Putting a ROT13 on a work shouldn't cut off fair use.
Then we fight ProCD again, arguing that copyright law and its necessary limitations on copyright holders' rights preempts contract. (ProCD was a distressing 7th Circuit case upholding a shrink-wrap license on a CD telephone database.)
A win here would (ideally) say that First Amendment requires that copyright be limited by fair use. Then, the same limitations should apply whether that copyright was protected by code or by contract.
Re:Why doesn't Warner Brothers sue the MPAA?
on
NYT On DeCSS Case
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· Score: 4
If I could advise her, I'd tell that those copyright holder then just should refrain from producing digital material.
You can advise the Copyright Office: submit a comment in the upcoming discussion of first sale and archival copying and the DMCA. The EFF has a copy of the Request for Comments. Comments are due this Friday at 5 p.m.
The first sale doctrine (17 U.S.C. s 109) states that a copyright owner cannot prohibit resale of a copy of a work he has sold, and has traditionally been read to imply that copyright owners cannot control the uses of those sold copies. Does the Digital Millennium Copyright Act give publishers persistent, after-sale control of their works, or should first sale still limit that power?
FWIW, I argue that the loss of control on first sale is an integral part of the constitutional copyright balance that that DMCA cannot abrogate. In exchange for copyright protection on published works, the copyright holder must give public access. (And yes, if they're not willing to give us that access in digital media, studios should keep publishing in analog.)
Join us at Openlaw/DVD for more discussion of the DeCSS cases and these broader copyright issues.
Thanks to John Young, archivist of Cryptome, for sending the trial summary linked above to the Openlaw/DVD discussion. More news articles from the trial and transcripts from the first two days are now posted to or linked off the Openlaw/DVD homepage. (Please send additional links to openlaw@eon.law.harvard.edu and I'll add those too.)
Incidentally, we're still proceeding with the "Openlaw" experiment -- discussing legal arguments for the defense in a public forum in full view of the opposing side. At least one of the MPAA witnesses has said he used the Openlaw site as a starting point for his search for DeCSS information online. Yet I think the mix of participants -- and thus the range of insights and analyses we've gotten -- is far broader than a more traditional set of calls to experts might have produced. Thanks to everyone who's been involved!
In the amicus brief Openlaw participants filed in the DeCSS case, we argued that links to DeCSS were both speech and association protected by the First Amendment.
There, the links were to an alleged "circumvention" tool, not directly to allegedly copyright-infringing materials. We argued against finding of contributory violation of the DMCA in part because of how far removed the linkers were from any potential copyright infringement.
Here, I would still argue that the link is protected speech and merely a location indicator that the individual broswer can choose whether or not to follow, but it's a closer case.
Let me take this opportunity to thank all of the Openlaw participants who contributed to the brief, and to acknowledge in particular Bryan Taylor's work in writing the first draft from which the brief developed.
I've been really impressed by the legal and non-legal input in the forum -- people helping to poke both technical and legal holes in the MPAA arguments and in the Digital Millennium Copyright Act itself. I'm working on a letter to the judge to emphasize how much of that would be lost if the public were denied access to the proceedings.
Slashdot Mirror
MythTV and any existing HD-capture cards will remain legal.
As proposed (and earlier implemented and struck down), the broadcast flag rule regulates only hardware manufactured after it takes effect. The flag rule would require the hardware that demodulates broadcast TV to implement DRM in response to "flagged" broadcasts. Existing hardware can lawfully ignore the flag, but new hardware would have to be "robust against user modification" -- incompatible with open-source PVR software.
Get your HD-capable cards now, and tell your representatives to reject broadcast flags.
To clarify EFF's position, we're not involved in the case at this point. We do strongly support Farechase's right to access a publicly available website and repost uncopyrightable facts gathered from it.
We may get involved with the case as it proceeds, but for the moment, we've just posted a copy of the injunction for reference.
See also the Chilling Effects Weather Report: Bargain Shoppers Chilled by Retailers' DMCA Threats, where we dissect the DMCA safe harbor provision and potential legal claims and responses.
The Fifth Circuit recently overruled that panel opinion, holding that people could not be barred by copyright from reading or copying "the law". See here for more.
(The arguments against severability are that Congress wouldn't have passed just the future extension, all the lobbying was for the extension of existing works, and the Court shouldn't be in the business of rewriting flawed legislation.)
There's also an index of the Government's papers analyzing and responding to the comments at http://cyber.law.harvard.edu/msdoj/ (along with the revised proposed final judgment and most of the other filings in the case)
The point of including such a range is to show that expanding the public domain isn't anti-commercial. Limiting copyright terms "promote[s] progress" for the public and commercial users better than locking works under copyright control for another 20 years. (In addition, to get to court at all, plaintiffs had to demonstrate standing, meaning they had to show concretely how they are harmed by the law they are challenging.)
They're choosing to take advantage of the "safe harbor" provision for ISPs (DMCA section 512, not the anticircumvention rules). 512(c) immunizes ISPs from liability for postings of their users, provide they follow "notice and takedown" procedures including the listing of a designated agent.
Even if they list an agent, service providers still have the option of refusing to remove material if they get a notice of claimed copyright infringement, and of taking their chances in court. The subscriber receiving a claim of infringement can also file a counter-notification asserting that the material is legally posted.
See this app for a demonstration how little present value Sonny's extra 20 years adds.
OTOH, if database protection passes, preemption won't offer even the weak shield it currently does...
Someone has to tell the judge that these settlements are worthless to all but the "class" attorneys (who like to raise the paper value of the coupons so it looks as though their fees are a reasonable percentage of the "settlement value," but are perfectly willing to remind the defendants in negotiations how few class members are likely to cash in their coupons).
DVD may be a wonderful format for storage of multimedia works, but if it is burdened with CSS locks, it is far less useful for playback -- another artist cannot use excerpts from the work in his own creation or juxtapose them for comment or criticism, even when those are clearly fair uses. He is technologically (and possibly legally, if those fighting to uphold the DMCA are successful) barred from sampling, creating montages, or adapting earlier works. Further, the locks burden audiences for the work, who may be unable to watch them on a given machine, in a chosen sequence, or to view DVDs imported from another region. In fact, you yourself may experience these difficulties if you wish to prepare several DVD movies for classroom comparison. (If you do, please let us know.)
I hope you will encourage the artists, whose work these controls are supposedly protecting, to reject locks that prevent their audiences from making use of the works they create.
More information on the DVD case, Universal v. Reimerdes, is available at Openlaw DVD.
Thanks!
I like Gandi.net. 12 Euros (around $11 US) and the registrant owns the domain name.
Napster may be required to use the architecture of its service to block access to files whose names match those of infringing works, but it's not forced to change the system to prevent those works from being listed under alternate names, for example. "Napster ... bears the burden of policing the system within the limits of the system." Filesharing can go on.
The 9th Cir. gives a bit more credence than the district court to the Sony defense. The problem is that Napster actually knew about and promoted the service's unauthorized copying, not merely that the service was capable of such uses.
There are plenty of other troubling aspects, including the Court's dismissal in a few lines of Napster's First Amendment defenses; its finding that most of Napster's uses were not fair, in part because record companies might begin to exploit a market for digital distribution; and its willingness to find "commercial" activity.
The plaintiffs can probably bog the service down pretty well with numerous notices of infringing files, but they can't make Napster do all the work for them.
By adding nuisance effort to getting a discount (whether filling rebate forms or clipping coupons), retailers can effectively sell at a higher price to those put off by the nuisance and a lower (but still profitable) price to more who might otherwise pass up the product.
The studios' response brief is due Feb. 19, and their amici must file by Feb. 26. Then 2600/EFF gets a reply, as appellant. No doubt the MPAA will trumpet any amicus briefs filed on the studios' behalf, but they haven't been so open in the preparation.
argh. the preview screen ate my closing tag...
If Digital Convergence has any "intellectual property" claim, it is most probably patent -- and without seeing specifics, I'd be dubious about even that. (Query how a process for Web information retrieval triggered by the scanning of a bar code is any innovation over a library's retreival of remote database records when it scans a book at checkout.)
Connectix was found to have engaged in infringing copying but won on the defense of fair use. Its temporary copies were necessary to gain access to the unprotectable functional elements of the Playstation BIOS, and its resulting emulator was a transformative use of the copy. Judge Kaplan told the defendants in the DeCSS case that fair use was not a defense to circumvention of access control devices. That's still a major point of contention, of course.
But, it's not over yet.
We need to draw a closer parallel between the cases, to argue that the DMCA did not so change the landscape and thus that the reverse engineering and interoperability endorsed by the 9th Circuit must still be permitted. There's lots of great language in the Connectix opinion that claims of copyright infringement can't be used to cut off access to unprotected ideas and functional elements. Can we extend that logic to say that even "access controls" endorsed by the DMCA can't be used to cut off that same unprotected information or fair use of the underlying content? Putting a ROT13 on a work shouldn't cut off fair use.
Join the fight at Openlaw!
A win here would (ideally) say that First Amendment requires that copyright be limited by fair use. Then, the same limitations should apply whether that copyright was protected by code or by contract.
You can advise the Copyright Office: submit a comment in the upcoming discussion of first sale and archival copying and the DMCA. The EFF has a copy of the Request for Comments. Comments are due this Friday at 5 p.m.
The first sale doctrine (17 U.S.C. s 109) states that a copyright owner cannot prohibit resale of a copy of a work he has sold, and has traditionally been read to imply that copyright owners cannot control the uses of those sold copies. Does the Digital Millennium Copyright Act give publishers persistent, after-sale control of their works, or should first sale still limit that power?
FWIW, I argue that the loss of control on first sale is an integral part of the constitutional copyright balance that that DMCA cannot abrogate. In exchange for copyright protection on published works, the copyright holder must give public access. (And yes, if they're not willing to give us that access in digital media, studios should keep publishing in analog.)
Join us at Openlaw/DVD for more discussion of the DeCSS cases and these broader copyright issues.
You're welcome to send other relevant materials or links to openlaw@eon.law.harvard.edu (and browse the archive for more).
Incidentally, we're still proceeding with the "Openlaw" experiment -- discussing legal arguments for the defense in a public forum in full view of the opposing side. At least one of the MPAA witnesses has said he used the Openlaw site as a starting point for his search for DeCSS information online. Yet I think the mix of participants -- and thus the range of insights and analyses we've gotten -- is far broader than a more traditional set of calls to experts might have produced. Thanks to everyone who's been involved!
Join the discussion at http://eon.law.harvard.edu/openlaw/DVD/
There, the links were to an alleged "circumvention" tool, not directly to allegedly copyright-infringing materials. We argued against finding of contributory violation of the DMCA in part because of how far removed the linkers were from any potential copyright infringement.
Here, I would still argue that the link is protected speech and merely a location indicator that the individual broswer can choose whether or not to follow, but it's a closer case.
I've been really impressed by the legal and non-legal input in the forum -- people helping to poke both technical and legal holes in the MPAA arguments and in the Digital Millennium Copyright Act itself. I'm working on a letter to the judge to emphasize how much of that would be lost if the public were denied access to the proceedings.
Thanks for all the help!