Turns out the MPAA plaintiffs don't like this "open" idea so much. They've requested that Kaplan seal many of the documents and depositions to prevent posting on the Internet and review by the news media.
According to an order Kaplan signed today, the parties and interested members of the press will be in court on June 6 to argue this one.
Garbus: The other thing this case is about, which is very interesting to me, is that it's kind of going to be an Internet legal trial in the sense that some of the people on the Internet and some people who deal with the Internet are very interested in this particular trial -- and every document, witness's word, judge's ruling, and lawyer's call will be on the Internet within a day.
He's serious about getting all the documents online. Cryptome has been posting them nearly as soon as they are filed. In addition, we're using the Openlaw/DVD forum to develop arguments online.
In the next few days, we'll be filing an amicus brief arguing against the MPAA's proposed injunction on hyperlinking.
Jackson was apparently impressed by the amicus brief filed last week by Computer & Communications Industry Association and the Software and Information Industry Association. They proposed the three-way split, but say, in the alternative
the Court could limit the potential for anticompetitive use of the browser monopoly by ordering that the Applications Company disclose the source code of the Internet Explorer product and license the use of that code (and the code of any successor products) on a full, "open source" basis.
They make a strong case for structural remedy based on Microsoft's previous experience with conduct limitations in the 1995 consent decree (where "integrated products" became a loophole big enough to fit IE through).
Probono.net is a clearinghouse and resource collection for lawyers doing public interest work. I hope this means they will be adding "defense of fair use and free software" alongside their more traditional pro bono categories.
-- Fight copyright predators and the DMCA: visit Openlaw! --
P3P is flexible -- it could allow you to customize your every interaction with websites to give data only when the privacy policies met your particular criteria or it could facilitate the transfer of that information in bulk on a very loose set of criteria.
For the users who go through and customize their filters meticulously, P3P is a good thing. It allows them to tailor privacy preferences once and leave the machine to implement them. For the users who can't even find the edit -> preferences -> advanced -> what-the-hell-are-all-these-options? -> turn off the cookies! however, who will probably accept the default settings provided by unscrupulous merchants, I'd say P3P is a bad thing. P3P would make it easier for these users to fill out a form once and unthinkingly transfer massive amounts of data on every transaction.
To be fair, P3P's authors envision a "market for defaults," where you might get your base privacy filters from EPIC rather than from the DMA, but I'd guess it will still be the DMA's preferences that are on by default in the P3P implementation that launches with a new install of IE/Netscape. Maybe Mozilla will choose more wisely:-)
-- Fight copyright predators and the DMCA: visit Openlaw! --
The Expediting Act, 15 U.S.C. s 29 allows the judge to order a case of "general public importance" to be appealed directly to the Supreme Court (which can still refuse to hear it).
Now, has anyone seen a copy of the government brief online yet?
Background materials, documents, and transcripts collected on the OpenlawMicrosoft Case page.
The pinkscreen proxies too -- photons from the TV screen pass through it before reaching the viewer. The argument is that the dialectizer or any other proxy never makes a fixed copy, but only modifies the web content in transit from provider to viewer. Thus it has never created a separate copy to infringe the original.
-- visit Openlaw to help fight copyright overreaching --
The dialectizer sounds a lot like the "Game Genie" device used to alter the play of video games. Inserted between a copyrighted work and the viewer, it causes the work to appear differently to the viewer. It does not modify the underlying work, and its display is only temporary, never (or not by the dialiectizer's doing) stored as a fixed copy. The 9th Circuit found that modification, if there was copying involved, to be fair use in Lewis Galoob Toys v. Nintendo of America.
*fn4 A low-tech example might aid understanding. Imagine a product called the Pink Screener, which consists of a big piece of pink cellophane stretched over a frame. When put in front of a television, it makes everything on the screen look pinker. Someone who manages to record the programs with this pink cast (maybe by filming the screen) would have created an infringing derivative work. But the audiovisual display observed by a person watching television through the Pink Screener is not a derivative work because it does not incorporate the modified image in any permanent or concrete form. The Game Genie might be described as a fancy Pink Screener for video games, changing a value of the game as perceived by the current player, but never incorporating the new audiovisual display into a permanent or concrete form.
As the site argues, the dialectizer only offers another means of viewing publicly accessible web documents. It uses its own rules to redisplay a public copy. What's next, an argument that all web browsers infringe because they don't follow HTML specs and so display the pages differently from the page authors' intent?
(I had these cites handy because I've been waiting to see the same misguided challenge raised against ThirdVoice or my poky annotation engine for offering web page annotation.)
Copyright is a restriction on speech that we tolerate because we (or congress) believe that the limited monopoly to authors is a necessary incentive for creative work. When copyright no longer appears to be serving that function, because it's no longer limited in laws like the DMCA (or the Sonny Bono term extension), then we should be challenging it on First Amendment grounds.
The objection to posting the entire spec is likely legitimate, but the objection to excerpts and Winxip instructions should be fought. The DMCA forbids us from reading an ostensibly published work if we don't comply with copyright-holder imposed "access control devices." It directly prevents us from speaking about those works.
We should be fighting Microsoft's absurd attempt to claim trade secret status in a publicly available document. Like the DMCA, it completely contradicts the nature of "publication."
Garbus and his team filed this brief (or here) with Judge Kaplan yesterday, opposing the studios' motion to enjoin hyperlinking.
The brief argues both that DeCSS itself is expressive speech and that links (to it or other sites) are communicative and should not be subject to the prior restraint of an injunction. It frequently emphasizes that even though non-traditional, 2600 is news media and is entitled to the same constitutional protections as the New York Times.
It strongly disputes plaintiffs' claim of "irreparable injury" -- necessary to maintain a preliminary injunction -- on the grounds that the studios have been crying wolf for months over "piracy" but have yet to demonstrate that DeCSS is used to copy DVDs. Further, it argues that DeCSS must be allowed to facilitate fair use of DVD movies and that DeCSS is exempt from the DMCA as part of a reverse engineering effort.
The brief is supported by a set of declarations from Harold Abelson, Andrew Appel, Chris DiBona, Bruce Fries, John Gilmore, Robin Gross, Lewis Kurlantzick, Eben Moglen, Matt Pavlovich, Bruce Schneier, Barbara Simons, Frank Stevenson, Dave Touretsky, David Wagner, and John Young.
For more on the case, see Openlaw/DVD/. Openlaw participants will be drafting an amicus brief.
Openlaw tries to take these discussions to the next level, generating arguments for the defendants in the DeCSS cases or the plaintiffs in Eldred v. Reno, challenging the recent copyright term extension.
We try to combine the work of lawyers and techies looking at the problems from different angles.
There's no submissions queue yet, but we're working to figure out how to extend the model to other depredations of the public good (of which we're lately seeing too many in the IP arena).
Have any of the articles mentioned whether Verisign will acquire both the registry and registrar functions of NSI, or just one? One of the ICANN-NSI agreements last November required NSI to separate the registry (database) and registrar (signing up new domains) functions at some point in the future. I can't find the details on the ICANN site now.
That's one of the challenges to this model. The hope is that the number of collaborators in the open process will allow it to develop so many more and better arguments that the gains outweigh the loss of secrecy and surprise.
I saw many people commenting that the defendants didn't present the strongest evidence of non-infringing uses at the preliminary injunction hearings. As the cases move toward full-blown trials, there will be plenty of opportunity to find and present that evidence.
Non-lawyers can help to flesh out these points. Why is DeCSS more like the VCR (used for copying movies but also legitimate "time shifting" of TV programs) than an illegal weapon? Show us the "substantial non-infringing uses."
This is a great distinction among otherwise muddy concepts. We need to stress the legitimate uses of circumvention technologies or the overextension of copy-protection systems as access prevention.
Copyright is a bundle of rights granted exclusively to the author. The right to make copies is just one of those. (Others are distribution, performance, and preparation of derivative works, see sec. 106.)
Typically, once the author has exercised his right to copy and distribute a copy to someone else, call him the reader, the reader gets rights under the "first sale" doctrine to use his copy as he wants (read it, read it backwards, place it on a bookshelf, burn it...) or to give or sell his copy to someone else. The reader still cannot make further copies of the work or perform the whole work publicly, but fair use gives him the legal right to use excerpts from the work, or to copy for limited purposes.
The licensing and access controls we're now seeing change that picture. Under a license, the reader doesn't own a copy of the work free and clear, but is granted a more limited set of rights. His license may not permit activities that copyright law would otherwise allow.
If everybody who has access to a work is bound by a more restrictive license, there is no one who can exercise the fair use rights. The author can sue anyone who violates his license agreement for breach of contract, though not for violation of copyright. (Then we face issues of the validity of the contract; on a click-wrap license, the reader can raise arguments that there was no real acceptance on his part, so he should not be bound by the boilerplate...)
The Digital Millennium Copyright Act in effect imposes a mass license condition, prohibiting readers from accessing works except through the methods approved by their authors. (The legislation has imposed its consent to these terms on us.) Fair use is again limited to what readers can do within the bounds of restricted access. Yet the legislative purpose was not to restrict use or access, but to prevent copyright-violative copying. The statute arguably goes beyond its legislative findings.
I'm still trying to figure out where this leads. For one, we can argue that the DMCA unconstitutionally tips the balance of "promot[ing] the progress of science and the useful arts" by granting too many rights to copyright holders, against readers. A narrower argument suggests that for the statute to be constitutional, circumvention of access controls must be permitted, even if those controls are also copy controls. This is only a slight extension of the Sony holding that devices with "substantial noninfringing uses" must be permitted even if the devices (there VCRs) may also be used to infringe copyright.
If the DVD Assoc. hasn't filed the documents under seal, the NY docs become part of the public record in the case -- not a good way to preserve a trade secret. It would seem pretty effectively to moot the California claims.
I guess that's what they get for having too many lawyers in the kitchen. (Different firms handling the NY and Calif. actions.)
Fair use is rooted in copyright (though even there it's under attack by laws such as the Digital Millennium Copyright Act that enforce technological bars to fair use), but it has applications in trademark as well.
Although trademark law does not have the explicit fair use exception of copyright law, First Amendment concerns have carved out a narrower privilege: you can use a trademarked term to discuss or criticize the product or company to which it refers. Consumer Reports can't be sued for trademark infringement when it bashes a product in a review, and a URL aimed not at confusing readers/consumers but showing them a different angle on a trademarked product should be privileged by fair use.
(American law only, and not a long-established doctrine, at that)
Since patents can be invalidated based on the existence of prior art -- someone has already described what you claimed -- another way to preserve software openness is the simple publication of the code, along with perhaps a broader description of what it does and how. Making these references easily available would help stop the patent office from granting patents for non-novel claims and help challengers in fighting overbroad/invalid patents.
You suggest that open source models work best where there is a group of "technically talented users" -- and it seems to me the legal community could put its shared technical skill to work jointly on a case that attracted its collective attention.
In challenging the copyright term extension, the openlaw strategy works against the collective action problem of this type of suit. While it would be difficult for any of the individuals harmed by the Act to fight against the mega media interests, we open a forum where they can combine smaller-scale contributions. Here, readers of the Eldritch Press and singers in the church choir can fight against the Disneys.
At times, the lawyers on the brief have to take authorial/editorial control, but we imagine they will have a richer stew from which to draw. We'll see where it takes us!
Slashdot Mirror
According to an order Kaplan signed today, the parties and interested members of the press will be in court on June 6 to argue this one.
Openlaw will have as much detail as we can get.
In the next few days, we'll be filing an amicus brief arguing against the MPAA's proposed injunction on hyperlinking.
Join the fight!
The Openlaw Microsoft Case page has more of the filings.
-- Fight copyright predators and the DMCA: visit Openlaw! --
For the users who go through and customize their filters meticulously, P3P is a good thing. It allows them to tailor privacy preferences once and leave the machine to implement them. For the users who can't even find the edit -> preferences -> advanced -> what-the-hell-are-all-these-options? -> turn off the cookies! however, who will probably accept the default settings provided by unscrupulous merchants, I'd say P3P is a bad thing. P3P would make it easier for these users to fill out a form once and unthinkingly transfer massive amounts of data on every transaction.
To be fair, P3P's authors envision a "market for defaults," where you might get your base privacy filters from EPIC rather than from the DMA, but I'd guess it will still be the DMA's preferences that are on by default in the P3P implementation that launches with a new install of IE/Netscape. Maybe Mozilla will choose more wisely :-)
-- Fight copyright predators and the DMCA: visit Openlaw! --
Now, has anyone seen a copy of the government brief online yet?
Background materials, documents, and transcripts collected on the Openlaw Microsoft Case page.
-- visit Openlaw to help fight copyright overreaching --
Here's a description from Micro Star v. Formgen Inc.:
As the site argues, the dialectizer only offers another means of viewing publicly accessible web documents. It uses its own rules to redisplay a public copy. What's next, an argument that all web browsers infringe because they don't follow HTML specs and so display the pages differently from the page authors' intent?(I had these cites handy because I've been waiting to see the same misguided challenge raised against ThirdVoice or my poky annotation engine for offering web page annotation.)
The objection to posting the entire spec is likely legitimate, but the objection to excerpts and Winxip instructions should be fought. The DMCA forbids us from reading an ostensibly published work if we don't comply with copyright-holder imposed "access control devices." It directly prevents us from speaking about those works.
We should be fighting Microsoft's absurd attempt to claim trade secret status in a publicly available document. Like the DMCA, it completely contradicts the nature of "publication."
-- visit Openlaw for more --
The brief argues both that DeCSS itself is expressive speech and that links (to it or other sites) are communicative and should not be subject to the prior restraint of an injunction. It frequently emphasizes that even though non-traditional, 2600 is news media and is entitled to the same constitutional protections as the New York Times.
It strongly disputes plaintiffs' claim of "irreparable injury" -- necessary to maintain a preliminary injunction -- on the grounds that the studios have been crying wolf for months over "piracy" but have yet to demonstrate that DeCSS is used to copy DVDs. Further, it argues that DeCSS must be allowed to facilitate fair use of DVD movies and that DeCSS is exempt from the DMCA as part of a reverse engineering effort.
The brief is supported by a set of declarations from Harold Abelson, Andrew Appel, Chris DiBona, Bruce Fries, John Gilmore, Robin Gross, Lewis Kurlantzick, Eben Moglen, Matt Pavlovich, Bruce Schneier, Barbara Simons, Frank Stevenson, Dave Touretsky, David Wagner, and John Young.
For more on the case, see Openlaw/DVD/. Openlaw participants will be drafting an amicus brief.
We try to combine the work of lawyers and techies looking at the problems from different angles.
There's no submissions queue yet, but we're working to figure out how to extend the model to other depredations of the public good (of which we're lately seeing too many in the IP arena).
Come join us! http://eon.law.harvard.edu/openlaw/
Have any of the articles mentioned whether Verisign will acquire both the registry and registrar functions of NSI, or just one? One of the ICANN-NSI agreements last November required NSI to separate the registry (database) and registrar (signing up new domains) functions at some point in the future. I can't find the details on the ICANN site now.
That's one of the challenges to this model. The hope is that the number of collaborators in the open process will allow it to develop so many more and better arguments that the gains outweigh the loss of secrecy and surprise.
I saw many people commenting that the defendants didn't present the strongest evidence of non-infringing uses at the preliminary injunction hearings. As the cases move toward full-blown trials, there will be plenty of opportunity to find and present that evidence.
Non-lawyers can help to flesh out these points. Why is DeCSS more like the VCR (used for copying movies but also legitimate "time shifting" of TV programs) than an illegal weapon? Show us the "substantial non-infringing uses."
...please join the (majordomo) mailing list dvd-discuss@eon.law.harvard.edu and add your ideas to the mix.
>2. Copy Protection
>3. Access Protection
This is a great distinction among otherwise muddy concepts. We need to stress the legitimate uses of circumvention technologies or the overextension of copy-protection systems as access prevention.
Copyright is a bundle of rights granted exclusively to the author. The right to make copies is just one of those. (Others are distribution, performance, and preparation of derivative works, see sec. 106.)
Typically, once the author has exercised his right to copy and distribute a copy to someone else, call him the reader, the reader gets rights under the "first sale" doctrine to use his copy as he wants (read it, read it backwards, place it on a bookshelf, burn it...) or to give or sell his copy to someone else. The reader still cannot make further copies of the work or perform the whole work publicly, but fair use gives him the legal right to use excerpts from the work, or to copy for limited purposes.
The licensing and access controls we're now seeing change that picture. Under a license, the reader doesn't own a copy of the work free and clear, but is granted a more limited set of rights. His license may not permit activities that copyright law would otherwise allow.
If everybody who has access to a work is bound by a more restrictive license, there is no one who can exercise the fair use rights. The author can sue anyone who violates his license agreement for breach of contract, though not for violation of copyright. (Then we face issues of the validity of the contract; on a click-wrap license, the reader can raise arguments that there was no real acceptance on his part, so he should not be bound by the boilerplate...)
The Digital Millennium Copyright Act in effect imposes a mass license condition, prohibiting readers from accessing works except through the methods approved by their authors. (The legislation has imposed its consent to these terms on us.) Fair use is again limited to what readers can do within the bounds of restricted access. Yet the legislative purpose was not to restrict use or access, but to prevent copyright-violative copying. The statute arguably goes beyond its legislative findings.
I'm still trying to figure out where this leads. For one, we can argue that the DMCA unconstitutionally tips the balance of "promot[ing] the progress of science and the useful arts" by granting too many rights to copyright holders, against readers. A narrower argument suggests that for the statute to be constitutional, circumvention of access controls must be permitted, even if those controls are also copy controls. This is only a slight extension of the Sony holding that devices with "substantial noninfringing uses" must be permitted even if the devices (there VCRs) may also be used to infringe copyright.
--Wendy
If the DVD Assoc. hasn't filed the documents under seal, the NY docs become part of the public record in the case -- not a good way to preserve a trade secret. It would seem pretty effectively to moot the California claims.
I guess that's what they get for having too many lawyers in the kitchen. (Different firms handling the NY and Calif. actions.)
Fair use is rooted in copyright (though even there it's under attack by laws such as the Digital Millennium Copyright Act that enforce technological bars to fair use), but it has applications in trademark as well.
Although trademark law does not have the explicit fair use exception of copyright law, First Amendment concerns have carved out a narrower privilege: you can use a trademarked term to discuss or criticize the product or company to which it refers. Consumer Reports can't be sued for trademark infringement when it bashes a product in a review, and a URL aimed not at confusing readers/consumers but showing them a different angle on a trademarked product should be privileged by fair use.
(American law only, and not a long-established doctrine, at that)
No, it's perfect: "www.kleinbottle.com: The document contained no data."
Since patents can be invalidated based on the existence of prior art -- someone has already described what you claimed -- another way to preserve software openness is the simple publication of the code, along with perhaps a broader description of what it does and how. Making these references easily available would help stop the patent office from granting patents for non-novel claims and help challengers in fighting overbroad/invalid patents.
In fact, the class was 6.805. Here's the current homepage, while last year's material is online here. (A division of labor between MIT and the Law School's Berkman Center.)
You suggest that open source models work best where there is a group of "technically talented users" -- and it seems to me the legal community could put its shared technical skill to work jointly on a case that attracted its collective attention.
In challenging the copyright term extension, the openlaw strategy works against the collective action problem of this type of suit. While it would be difficult for any of the individuals harmed by the Act to fight against the mega media interests, we open a forum where they can combine smaller-scale contributions. Here, readers of the Eldritch Press and singers in the church choir can fight against the Disneys.
At times, the lawyers on the brief have to take authorial/editorial control, but we imagine they will have a richer stew from which to draw. We'll see where it takes us!
--Wendy
http://www.openlaw.org/