January 2003 Archives
Rick Klau is following the news of the winding up of Brobeck, Phleger & Harrison [at 12:20MST, I couldn't get through to their website].
Brobeck kept a small, twelve-lawyer (according to Martindale-Hubbell) office about two miles from where I'm sitting right now. I guess the pool of job hunters here just increased by twelve. I imagine most of them will find jobs rather quickly, though not at the salaries they probably made before.
This sort of thing is a common result of economic change when a law firm serves one client or one economic class of clients, for example, young companies in high-technology markets. This is just happening on a really big scale. (Not that I should speak as an expert here -- I'm new to the business, but this is what people tell me.)
BeSpacific notes that the Colorado legislature is considering a bill that would create a no-spam list strongly resembling the Colorado No-Call List for telephone solicitation.
I'm a huge fan of the Colorado No-Call List. I haven't received a telemarketing call since the end of October, except from a company I already do business with (whom the law exempts from its restrictions), and even then only twice. Yet I suspect that doing the same for e-mail would be much harder to police, because the sources of spam email are much more easily faked. It could have different First Amendment free speech clause implications, too, since junk email is arguably less intrusive than the ringing of a telephone during dinner. Even the constitutionality of the No-Call List law has not yet been fully resolved -- at least, not that I've heard.
This CNET article by Declan McCullagh reports that Verizon will appeal to the Court of Appeals for the D.C. Circuit in the wake of the adverse ruling by the District Court there.
The article points out something that I noted in an entry here two days ago. The dispute is not about whether Verizon will have to identify an alleged infringer ever; it's only about whether the RIAA can use the DMCA's accelerated mechanism. Even if Verizon wins, the RIAA can still file a "John Doe" suit against the infringer and then get a subpoena to require Verizon to provide evidence of the infringer's identity. They'd rather not do that, though, because it would be slower and more expensive.
Update: D'ohh. Howard got to the story last night, so most of y'all probably knew this already.
Something just seems wrong about National Geographic Magazine planning a swimsuit edition. Yeah, they've couched it in historical terms -- "swimsuits: 100 years of pictures" -- but even so, it seems very out of place.
Edward Felten (here and here) and Seth Finkelstein (here and here) have been musing over the efficiency of different enforcement approaches the mass media copyright-holder associations might use to target peer-to-peer file sharers who share copyrighted material. The Recording Industry Association of America (RIAA) has already sued the companies that create, distribute, and operate filesharing software, but recent activities suggest that it intends to expand its attack to target directly file sharers who infringe.
Ed Felten started the conversation here, wondering whether criminal prosecution of infringing file sharers will increase.
In this January 28th post, Seth Finkelstein anticipates that civil copyright enforcement against individual end-users would cost more money than could be obtained in lawsuits against those users, and that suits against users would probably deter few peer-to-peer file sharers. He writes that those users' Internet Service Providers would be the best enforcement mechanisms available to the RIAA. He also doubts that the government would want to allocate much money to criminal copyright infringement prosecution.
The conversation continued here (Ed) and here (Seth).
A Little DMCA Background
Some readers here are less familiar with this part of the Digital Millenium Copyright Act, so I've included this bit to explain the background law a little.
The DMCA governs the relationship between ISPs and copyright holders. RIAA/MPAA generally can't simply sue ISPs for money damages based on users' activities, but they can obtain the help of ISPs to shut down infringers. 17 U.S.C. sect. 512 protects ISPs who do not directly participate in copyright infringement and who follow certain steps to help identify infringers and to prevent their servers from being used to store infringing material for users.
The recently decided RIAA v. Verizon Internet Services (D.D.C., Jan. 21, 2003) [PDF] case provides a good example of one of those section 512 provisions. 17 U.S.C. sect. 512(h) allows copyright holders to obtain subpoenas requiring ISPs to identify alleged infringers. The subpoena must contain enough information to allow the ISP to identify the infringer. So, if a copyright holder has a record indicating that a user at a particular IP address transmitted or received a copyrighted song at 11:33 p.m. on January 29th, the ISP must search its logs to determine what account used that IP address at that time, and it must reveal that customer information to the copyright holder. Judge John D. Bates of the District Court for the District of Columbia decided in the Verizon case that the subpoena provision applies both when the user stores data on ISP servers and when the user only uses the ISP to transmit data directly to or from the user's computer. Verizon, not anxious to respond to a slew of subpoenas for customer information, had argued that 512(h) applied only when the user stored infringing material on ISP servers.
This provision doesn't give copyright holders majestic new powers; instead, it changes the order of events to make it less expensive and burdensome for copyright holders to identify alleged infringers. Without this provision, the copyright holder could still file a civil complaint against a "John Doe" defendant and obtain the very same sort of subpoena. Now, the copyright holder can identify its would-be defendant before filing its complaint instead of afterward.
Other provisions in section 512 require an ISP to remove infringing material when it receives notice from a copyright holder that a user has placed infringing material on the ISP's servers. As long as the ISP didn't already know or have reasons to know that the material was infringing, and the ISP takes down the infringing material quickly, the copyright holder can't sue the ISP claiming infringement.
Back on Topic
Now, back to the topic of Ed Felten's and Seth Finkelstein's discussion. What is the most efficient way for RIAA members to try to clamp down on peer-to-peer file sharers? Legally, they can sue file sharers, but they cannot sue cooperative ISPs for money damages. They can, however, use cooperative ISPs to identify infringing peer-to-peer file sharers, and they can get injunctions forcing ISPs to disconnect users who copy infringing material.
As Seth notes, suing individual file sharers for money damages would probably not be a financial winner of a plan. Although U.S. copyright law allows for many thousands of dollars in statutory damages (see 17 U.S.C. sect. 504(c)) against almost anyone who illegally shares music, it would probably be difficult to obtain that kind of money from most of the potential defendants. Might it still be worthwhile to engage in a flurry of lawsuits against heavy-duty infringers, in order to deter others? I can't pretend to be able to make that economic judgment, but Seth voices some fairly convincing skepticism about how well that would serve RIAA.
I suspect that we will see some RIAA v. John and Jane Filesharer lawsuits, but it would probably take many in order to have any appreciable deterrent effect. We know from the Verizon case that the RIAA is actively seeking the identities of peer-to-peer file sharers. I also read an article several months ago -- I think in Newsweek -- that described massive online tracking projects funded by MPAA and RIAA designed to track down file sharers enough for ISPs to identify the infringing users. Some sort of civil action against the users seems likely, if only in trial cases.
If RIAA and MPAA do attempt direct suits against file sharers, it will probably be only one prong of a multi-pronged strategy. The other prong would probably be to sue ISPs seeking injunctions containing long lists of customers to ban. Those long lists of names would come from the results of identification subpoenas. In that sort of scheme, I wonder if the customer would ever have any opportunity to refute the allegation of infringement. The DMCA expressly gives an ISP's customer the opportunity to refute a section 512(c) 'take-down notification,' see sects. 512(g) and 512(c), but it's not clear that the customer would have an opportunity to contest the facts underlying a request for a 512(j)(1)(A)(ii) or (B)(i) order to cancel the user's account. Could a customer intervene in a lawsuit against the ISP seeking that kind of injunction? Would it ever be economically worthwhile for the customer to intervene, if he or she could?
Meanwhile, for the reasons Seth Finkelstein discussed, I doubt we'll see many criminal prosecutions for infringement. We could be wrong, but I'd be surprised if the Department of Justice suddenly gave high priority to copyright infringement prosecutions. Still, those file sharers whom the RIAA chooses for its civil cases are in for a rather unpleasant time.
Ed Felten suggests that "the RIAA might want ISPs to take care of enforcement [because] whoever does the dirty work will end up looking, well, dirty." I really don't think the RIAA or its members care whether they end up looking dirty. I also suspect that when people's ISPs cooperate with the RIAA, users will know -- or will quickly find out -- who controlled what happened.
According to this News.com.au article, the United States Trade Representative has raised the issue of influencing Australian copyright law to conform to the United States' Digital Millenium Copyright Act. The article mentions the provisions in the DMCA at 17 U.S.C. sect. 512, which give Internet Service Providers safe harbor from suit for users' copyright infringement only if they block access to apparent infringers. Those provisions also give copyright holders the power to subpoena the ISP and order it to identify customers that copyright holders suspect have infringed copyright with practically no judicial review. See 17 U.S.C. sect. 512(h); RIAA v. Verizon Internet Services (D.D.C. 2003) (Verizon must respond to RIAA's subpoena and identify a Kazaa user that RIAA claims downloaded several hundred copyrighted songs in one day); Donna Wentworth's Copyfight entry on the topic.
1998 amendments to Australia's Copyright Act protect ISPs from suit for customer infringement without any parallel safe harbor requirements.
I wonder what other DMCA-like provisions they'll push for. Does Australia have an equivalent to 17 U.S.C. sect. 1201's anti-circumvention provisions? Will that can of worms be on the table, too?
The Blawgistan Times implements its flavor of centralized aggregation very nicely. Jonas indicates that it's only a taste of what's to come.
Kevin Heller quotes Dave Winer, who recently said,
Evan Williams says centralized news aggregators are the wave of the future. We tried that, before the dotcom bust, and perhaps it could have paid for itself through advertising, but really, I have my doubts.
Kevin optimistically remarks, "Seems to me like Jonas is way ahead of these guys." But Dave Winer and Evan Williams both know their stuff when it comes to blogging, and they do have a point-- at some point, this endeavor may cost more than pocket change and time. That isn't stifling the creativity at the outset, though, which makes me happy. The Blawgistan Times won't replace my aggregator, but it will introduce me to blawgers I don't already read on a regular basis. The longer-term plans look very impressive, too.
Martin Schwimmer has a fun entry on "Blawg Brands" here.
People following copyright, technology, and digital rights management issues have wondered a lot about Sony lately. Sony has a record label (or so), a motion picture production company, and a large electronics business, so it's a company on both sides of DRM issues. Will it produce the electronics with functionality that people want -- and, I should note, with substantial non-infringing uses -- or will it produce equipment with very limited capabilities designed to keep people from ever copying its media products? Or, perhaps, is that choice something other than binary?
Doc recently linked to this Newsweek article, wondering if Sony would buck the major media houses' overprotective tendencies in order to energize its electronics business. Today, Cory Doctorow (BoingBoing) excerpted and commented on this Wired article by Frank Rose, which discusses in much more detail the direction Sony might go from here. Sony doesn't seem to plan to leave the media business, as one might expect from its CEO's remark that he doesn't want Sony to go back to being only "a box company." Where will Sony's DRM initiatives lead?
Lately I've been running around to a lot of events, and I've had friends visiting town. It's been good to see my brother and some of my other friends from home. I've also been getting called for job interviews, and I'm very happy about that. Hopefully something will come of it.
It's been a quiet weekend here. I'm not complaining, because the coming week will be busy.
I've been tweaking the CSS for the blog. If I don't accomplish anything else here, at least I'm learning a bit about CSS and XHTML.
I also spent part of the weekend studying will and trust drafting. I didn't study wills and trusts in law school except in my first-year property class, so preparing for the bar exam provided me with my first significant exposure to the topic. I found it interesting. The Colorado bar exam's coverage of wills and trusts does not include estate taxes, however -- there's no taxation at all on the Colorado exam. Taxation continues to be a significant consideration in the organization of large estates, so I'm going to have to spend some time studying that. I find even so-called "simple" wills intriguing, though, because of the intensely personal nature of the choices that they can involve. People generally don't like thinking about death, and the kinds of decisions people may have to make about what happens to their property and family when they die are very challenging emotionally. Many people never even try to find out what happens if they die without a will, leaving their family members taken aback by the distribution of property that results when they die.
Many non-lawyers out there might not know that state laws about "intestate succession" govern who inherits what when someone dies without a will. For example, imagine an unmarried man with no children who dies in Colorado his 60s leaving his mother, two sisters, two nieces and a nephew. Imagine that he has no real estate, but he has a respectable amount of retirement savings and some treasured personal property. Imagine further that he seemed to have vaguely indicated his intent to leave certain pieces of property to his nieces, sisters, and nephew, but he never wrote anything down. Who gets what? Under Colorado law, all of his property passes to his mother. C.R.S. sect. 15-11-103(2). If she rejects it, it is divided equally between his sisters. This may upset members of the younger generations, especially younger family members who had developed personal attachments to some of the heirlooms they had expected to receive. No one knows exactly what the decedent wanted to happen to his property when he died, but everyone's pretty sure that this wasn't quite it.
In my view, time spent helping people address those emotionally challenging questions and getting their wishes properly established on paper so that they and their families can avoid that kind of scenario would be time well spent.
Freedom to Tinker (Ed Felten) links to reports that the New York State Supreme Court* in Manhattan invalidated a clause in the End User License Agreements (EULAs) under which Network Associates, Inc. (NAI) distributed its software. The pernicious clause forbade users from publishing reviews of NAI software without permission of the company. I like the result, but I worry it may not stand for long.
The court's decision appears to turn on free speech, but I foresee problems with the cause of action; it appears that the New York Attorney General's office had brought the suit claiming that the EULA clause constituted a deceptive practice forbidden by New York law. I don't know the law, but I suspect that an appellate court could reverse that part of the claim, thereby eliminating the Attorney General's standing to bring the suit and leaving it up to a private party to sue or be sued by NAI before giving a definitive holding on the First Amendment question. That's problem one.
I want to see the court's First Amendment analysis that concludes that the clause is clearly unenforceable. The First Amendment question becomes tricky because the First Amendment rarely, if ever, renders part of a private agreement unenforceable. Parties can voluntarily agree to keep silent; this is why parties can agree to non-disclosure agreements and can enforce them. If you really treat this like a run-of-the-mill non-disclosure agreement, there's arguably no First Amendment free speech claim. I think that this could be a huge problem, because we desperately need reliable software reviews in the market for computer software. Numerous EULAs forbid users from publishing benchmark test results of software, and some EULAs, like NAI's, forbid any reviews without permission. If there's no First Amendment claim, how ought contract law treat this sort of provision in End User License Agreements? What about other pernicious clauses that find their way into shrink-wrap or click-wrap agreements?
Peter Suber at FOS News seems to think that this is a fair use/copyright issue, but it's not-- not quite. The EULA clause doesn't say anything about how one can use the software; instead, it controls what one can say about it.
So far, we've been friendly to non-disclosure clauses in business dealings between individuals and companies and between companies. There are good reasons for that, too -- we want companies to be able to develop their ideas in secret, and we want them to be able to protect legitimate trade secrets. Should we be as ready to enforce non-disclosure clauses when they appear in shrink-wrap licenses that govern the licensing relationship between a software publisher and the general public? I don't think so. Now we just need a nice clean legal principle on which to exclude those clauses that doesn't also entirely throw out shrink-wrap and click-wrap licenses (much as I sometimes think I might like that, it won't happen) and that also preserves non-disclosure agreements in technology and business development. Maybe the New York court's got one. We'll see.
* In New York, the "Supreme Court" is a trial court, so Network Associates has several possible stages of appeal open to it.
Prof. Jack M. Balkin muses about whether the First Amendment discussion in Eldred opens up an avenue by which to attack the Digital Millenium Copyright Act's anti-circumvention provisions (17 U.S.C. 1201). (Spotted on Volokh.)
The reason I haven't said anything about the Eldred fiasco here is that there's been no reason to. The blog community coverage of and commentary on the topic has been outstanding.
NPR's Talk of the Nation Science Friday program this afternoon included an interview with Bruce Perens, the well known open-source advocate. Host Ira Flatow also interviewed Michael Robertson, the founder and CEO of Lindows.com. I was driving and didn't hear all of either interview, but I did hear Bruce tell an amusing anecdote about a conversation he once had with Steve Jobs. You can find a page with links to RealAudio recordings of segments of the show here.
Ernest Svenson and Rick Klau love their Handspring Treos. When I've got a steady income, I'll be in the market both for a new PDA and a new cellphone, and this sort of combination seems to be the way to go. I'm a little glad I don't have the money to splurge right now, though. I want to see what happens with these technologies in the next several months.
I'm a SprintPCS customer, and I will probably continue with them for another year once my annual contract concludes because they've given me decent service in this area (I live near Denver, Colorado). That means that I'll be looking for a phone that supports at least the CDMA2000 1xRTT standard. I think most current contenders offer at least one phone that supports that wireless protocol. One reason (aside from being broke) I hesitate now, though, is that most current offerings use yesterday's PalmOS technologies. Handspring's Treo and Samsung's I330 both run version of PalmOS 3.5.2 -- the same as my girlfriend's three-year-old Palm. They also run the VZ or EZ versions of the Motorola Dragonball processor, at 33MHz.
Now, maybe I'm overhesitant. There's a good chance that I wouldn't need more from a PalmOS device than what that kind of device can provide. After all, if one wants more, one might not want it all to be built into a telephone. I worry about buying an 'older-style' PalmOS device built into a phone at exactly the time when Palm, Sony, and other PalmOS device manufacturers aim to push users and developers away from those older devices and toward PalmOS 5 running on ARM processors. I was an Apple user back when the PowerPC came out, and even though there was plenty of software around for my little 68LC040-based machine for a while, it became a drag before long. Right now, the ARM architecture with PalmOS 5 costs just a bit too much to build into a phone and still have an affordable product, but that will probably change before long.
If I had the money and my anxieties about PDA obsolescence were allayed, I'd get the Treo. It has the Palm screen on the lower half of a clamshell, which I like much better than Kyocera's decision to place the screen on the top half. I also like the thumb-keyboard, which I haven't seen any Handspring competitor offer on a phone.
Ooh, one more catch. I want something that will let me attach a full-size keyboard to take notes with. Maybe that's the point at which one should just admit that the phone-PDA combination isn't going to fly and just get one of each. (Bluetooth-enabled, of course!)
I've been working on an entry inspired by this entry by Brad DeLong about linkrot and the copyright problems some of his suggestions may entail. I've run into a problem, though, in that despite having done a bit of research in copyright and fair use, I'm not an expert on the matter, especially when one considers the difficulty of applying the principles underlying the four-factor fair use test to the peculiar medium of the internet. This is not a write-it-up-in-one-night problem. I don't have free access to Westlaw and Lexis anymore, so I can't just go cruising around on there to find cases on point; the "classic" cases don't go into the level of detail that I need. Still, I want to post what I've got and look to lawyers and others in the community to help me take it from there.
** Readers should not treat anything in this entry as individualized legal advice. If you have questions about the legal implications of your blogging practices, you should consult a lawyer who has expertise in the area of copyright. My interest in copyright has so far been purely academic. Do not rely on this entry as legal advice. **
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"Linkrot" occurs when one internet web page links to another page, but someone removes or relocates the second, linked page. The link becomes worthless because users can no longer find the linked document or file. Linkrot can impair and, over the long term, potentially even cripple online commentary and discourse. When a commentator (for example, a weblogger) only links to source documents instead of quoting from them, the sources may disappear leaving readers with no path to follow. Brad DeLong wrote in a blog entry titled "Consequences of Linkrot":
The first lesson is that linkrot is incredibly rapid. The second lesson is that it thus becomes critically important not just to link but to quote--and to quote extensively. The third lesson is that not even fear, surprise, and ruthless efficiency can defeat linkrot. If you want your links to be worth anything in two, three, or five years, download *all* the pages you're linking to to your hard disk.
However, solutions that involve copying large amounts of original source material risk violating United States and international copyright laws. Copyright law protects most original content on the internet and elsewhere.[1] That protection means that without permission (for example, through a Creative Commons license or some other form of express permission), one cannot legally copy text or images out of someone else's webpage and into one's own unless that act of copying falls under a defense to or exception from copyright infringement.
The doctrine of Fair Use provides the most likely avenue of defense to copyright infringement in these circumstances.
(continued at length...)
I seem to remember that year or two (or more?) ago, a lot of people raised the question, "Why don't more girls take an interest in mathematics and computer science?" An article (free registration required) in the New York Times by Karen Stabiner raises the question again. It's still worth asking. Meanwhile, see if you can find the quotation where a word was most likely either used or transcribed incorrectly.
While browsing the internet the other night, my girlfriend came across the site of Lip Balm Anonymous. The site's author does appear to intend that we take him seriously. I don't dispute the possibility that a person could develop a psychological affinity, even a compulsion, for waxy lips. However, some of the author's rants go far enough over the top that it becomes difficult to take him seriously. For me, the site conjures memories of girls in high school who indeed seemed to be compulsive lip-balmers. Some of them didn't get the idea that Carmex is a cold sore treatment and not a lip balm. This severely ticked off our band teacher, who worried that the salicylic acid in Carmex would corrode our instruments. I suspect that a compulsion to wear lip balm would probably be rooted somewhere other than most substance-addictions, since lip balm generally doesn't alter one's state of consciousness; the lip-balm addiction sounds more like some form of obsessive-compulsive behavior. But what do I know? I'm no psychiatrist or neurologist. Maybe in some people the feeling of smooth waxy lips triggers a response as calming or euphoric as the feelings that well-known addictive substances trigger.
Hooray, Alice has returned! What's more, she's got a few things to say about student-edited law reviews. In general, I agree with her; the question I'm curious about is whether the student-edited law review model can be improved without being scrapped entirely.
Once I got back to Colorado, I spent a few days feeling too ill to focus on much of anything. I'm finally feeling like I've got my head on again instead of having misplaced it somewhere.
For the last week or so, I've been visiting my family in Wisconsin.
As I prepared to leave Colorado, I told myself that I'd update my blog regularly and read all the blogs I ordinarily read. I uploaded my aggregator blog list to one of my servers so that I would be able to download it and use it in Madison. Instead, I rarely use the computer for more than a few minutes a day. This is probably a good thing, since I ordinarily spend so much time in front of it. I'll catch up once I get back to Colorado this weekend.
