November 2003 Archives

Colour trademarks

IPKat reports on a UK trademark decision involving the use of color as a mark: When a Single Colour is the Prior Mark

The IPKat brings news of an interesting Trade Mark Registry decision concerning an opposition based on a registration of a colour per se. Orange Personal Communications is the proprietor of two marks for the colour orange in the form of Pantone 151 and a colour sample, applied to the visible surface of packaging or promotional materials etc, where it is the predominant colour.

Senate votes against spam

NY Times: Antispam Bill Passes Senate by Voice Vote.

Via Prof. Lessig, CongressDaily reports that Senator Corzine (Dn-NJ) plans on holding up the pro-spam “anti-spam” bill to insist that the FTC at least study the viability of bounties as part of the solution to spam.

From the House side, Silicon Valley lawmakers think Spam bill is a turkey

Reps. Zoe Lofgren (D.-CA) and Mike Honda (D.-CA) said they voted against the landmark anti-spam bill because the legislation is simply not tough enough and that consumers deserve better. Both said they support the stricter standards of their state's recently passed anti-spam law, an opt-in measure that allows individual consumers to sue spammers.

Here, Congress gets to look good, by voting for a bill that is intended to stop spam, which no one likes. But, the bill is severely flawed and will likely be ineffective at best and will probably increase the amount of spam clogging inboxes around the US. (See CAN SPAM Act can't stop spam

Diebold's done

Diebold forgoes copyright suit over leaked memos

Diebold... has decided not to take the additional step of suing for copyright infringement for the materials at issue. Given the widespread availability of the stoplen materials, Diebold has further decided to withdraw its existing DMCA notifications and not to issue and further ones for those materials.

Dewey Decimal Trademark Suit Settled

OCLC and The Library Hotel settle trademark complaint

Under the settlement terms, The Library Hotel will receive permission from OCLC to use the Dewey Decimal Classification® trademarks in its hotel and in its marketing materials, with an acknowledgment that OCLC is the owner of the Dewey® trademarks. The Library Hotel will make a financial donation to a non-profit organization that promotes reading by children.

Previously: File under trademark infringement

In Assesment Technologies of WI, LLC v. WIREdata, Inc., the Seventh Circuit Court of Appeals held that one may copy and access a copyrighted database in order to extract non-copyrightable public information from that database. For a unanimous three judge panel, Judge Posner writes:

This case is about the attempt of a copyright owner to use copyright law to block access to data that not only are neither copyrightable nor copyrighted, but were not created or obtained by the copyright owner. The owner is trying to secrete the data in its copyrighted program-- a program the existence of which reduced the likelihood that the data would be retained in a form in which they would have been readily accessible. It would be appalling if such an attempt could succeed.

(via How Appealing)

See also InfoToday discussing newsletter redistribution and databases: Intranet Publishers Beware!

Susan Crawford: Justly Irascible: A victory for rationality. And a warning to those who would use copyright claims to convert otherwise freely-available material into private property.

Elizabeth Rader: Judge Posner Chases A Wild Hare

How Appealing: 20 Questions for Judge Posner

In conference, House and Senate negotiators agreed on legislation to prevent identity theft.

Starting today, wireless carriers must allow customers in the 100 largest service areas to take their phone numbers with them when transferring service.

While many argue that deregulation is the best way to increase competition and create efficient markets, here's an example of increased regulation increasing the efficiency of the market. The wireless companies fought the portability requirement. Without number portability, the cost to customers of switching carriers is high-- many customers would stay with an inferior service in order to avoid the costs of changing a phone number. Only because FCC regulation forced the cell phone companies to enable local number portability are consumers able to choose the service that works best for them, without being constrained by the desire to keep the same phone number.

Where company policies create an artificial, rather than natural, monopoly power, regulation will increase competition.

Some Links:
Gizmodo: Number Protability Arrives
MobileTracker: Pre-LNP tidbits
AP: Moving Cell Numbers? Wait a Sec
GigaOm: Number Portability tips for Consumers

Judge hears challenge to RIAA subpoenas SBC raps RIAA subpoenas in court at a hearing concerning SBC's motion for summary judgment the RIAA's motion to dismiss in a federal District Court in California.

Critics of the DMCA say SBC's case may have a better chance of success than Verizon's, because the subpoenas have now been issued thousands of times, and the burdens on courts and the threats of exposing people's private information are no longer theoretical

Some Free Culture for Free

Excerpts from Prof. Larry Lessig's new book, Free Culture: How Big Media uses Technology and the Law to Lock Down Culture and Control Creativity are available from the NYU Law Colloquium in Legal, Political and Social Philosophy: Introduction, Piracy, and Creators, Property, and Afterword.

Diebold and Dennis

Rep. Dennis Kucinich (D-OH) has taken a leading role in creating public awareness and discussion about the flaws and potential security risks in Diebold's electronic voting system and the company's use of the DMCA to prevent discussion about these risks.

On a section of his web site, which discusses voting rights, Kucinich provides a concise summary of the problems with Diebold's insecure electronic voting technology, with links to the Diebold internal memos and independent research documenting the security flaws. In addition to drafting new legislation, Kucinich Requests House Judiciary Committee Hearing On Diebold’s Abuses Of Digital Millennium Copyright Act in a letter to the House Judiciary Committee.

Diebold’s actions abuse the Digital Millennium Copyright Act, using copyright to suppress speech rather than fulfill the Constitution’s purpose for copyright, to “promote progress.”  These abuses raise a fundamental conflict with the First Amendment, diminishing the Internet’s tremendous value as a most free medium of expression.  Diebold’s actions are representative of a growing body of abuses through which large and powerful parties unfairly intimidate ISPs to remove information those parties do not like.  In other examples, the claims are not really about copyright, but about not showing the parties in a negative light, or not allowing consumers to compare prices, or quieting religious critics.  Powerful parties should not be permitted to misuse copyright as a tool for limiting bad press and barring access to legitimate consumer information.

On another section of his web site, Kucinich serves his constituents by offering links for Polka, Bowling and Kielbasa.

In other E-Voting news, The Harvard Crimson reports on Diebold, the DMCA and Derek: Student Will Not Be Disciplined for Memos

House passes spam bill

NY Times: Lopsided Victory for Bill Curbing Junk E-Mail

The antispam measure was passed by the House on a 392-to-5 vote. The bill would make mass e-mailers liable for civil fines of up to $250 per electronic message if they tried to hide their identities. It also allows the Federal Trade Commission to begin to fashion a plan to create a "do not e-mail" registry similar to the list intended to let consumers block telephone solicitations.

Prior to the vote, Rep. Billy Tauzin (R-LA) announced agreement on "Historic Anti-Spam Bill":

For the first time during the Internet-era, American consumers will have the ability to say no to SPAM. What's more, parents will be able to breath easier knowing that they have the ability to prevent pornographic SPAM from reaching defenseless, unsuspecting children
It's too bad , then that this legislation will not prevent pornographic spam from reaching the email accounts of defenseless children. Instead, parents will have to wait for their unsuspecting children to receive pornographic spam before they can opt-out. As I've said before, the CAN-SPAM Act Can't Stop Spam.

See also, ClickZ: The 10 Biggest Spam Myths.

Adam Felber: Anti-Spam Legislation Dooms American Waistlines, Penises

Open Source Litigation

Martin Schwimmer: "IP litigation is the Internet's answer to college football."

Paper trail to follow California E-Voting

LA Times: State Tells Counties to Establish Paper Trail on Electronic Voting

Secretary of State Kevin Shelley is expected to announce today that as of 2006, all electronic voting machines in California must be able to produce a paper printout that voters can check to make sure their votes are properly recorded.

Late Thursday evening, Shelley placed calls to county elections officials around the state to tell them that any voting system that is currently in use or that is purchased before Jan. 1, 2006, must be modified or replaced to produce a paper trail. After that date, no county will be allowed to buy machines that can't make printouts.

Colleges, Computers and Copyright

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Harvard undergrad Derek Slater posted a copy of the Diebold memos to his weblog, on a Harvard server and received a cease and desist notice from Diebold. Harvard policy is to terminate the network access of any student who is a "repeat offender" of copyright infringing activities. Slater challenged the "first strike":

While I greatly appreciate the University's appropriate response and the effort it took to discuss this matter with me, I must say that my appeals process is cause for concern. I say my process because there is no official appeals process.  Here's how the system currently works: First, the University sends a letter telling the student that access has been cut off and to respond within five days.  The University provides minimal information about potential defenses.  Like Brown, the University also suggests that the infringing material must be deleted, regardless of the infringing act.  When you assert your intention to submit a defense, the University computer security staff tells you that it will forward on whatever you provide. Before hand, you have no idea who to contact directly; I only knew to contact the general counsel because my boss, John Palfrey, helped me.  From here, it's a black box - no clear standard of review, no official way of getting a hearing, no required or recommended format for defenses.

Without a legal background and the incredible support of the Berkman Center and the EFF, I doubt I would have known the right people to contact and the right way to approach this.  Most students would be in a severely disadvantaged position.

This is not only an issue with university students dealing with DMCA-related issues, but with the general public when dealing with copyright-related claims. This ties in with the Mazzone piece which I posted a link to previously, in which he describes how corporations make overly broad claims about the extent of their copyright protection. Many people are unaware of the extent of copyright law and possible liability.

Constrain Crazy Copyright Claims

In the Legal Times, Jason Mazzone discusses the problems of publishers claiming overbroad copyright protection over works in the public domain: Too Quick for Copyright

After decades of claiming they own virtually everything in print, commercial publishers have made abiding by copyright law seem optional. If corporations with their teams of lawyers cannot distinguish between what is protected and what is free for public use, we can hardly expect teen-agers with their laptops to play by the rules.
Prof. Mazzone argues that encouraging use of public domain material will enhance freedom of speech and proposes penalizing publishers who claim copyright in public domain works.

(via LawMeme)

AT&T sues eBay over patent AT&T sues eBay, PayPal over patent

The suit, filed in federal district court in Delaware, claims that eBay and PayPal's online payment systems infringe on AT&T patent No. 5,329,589, "Mediation of transactions by a communications system."

That patent, according to an AT&T release announcing the suit, describes "transactions in which a trusted intermediary securely processes payments over a communications system such as the Internet. The use of a trusted intermediary ensures that one party will not have to disclose sensitive information, such as a credit card number or bank account number, to the other party to the transaction."

Spyware where

Today, the Center for Democracy and Technology released Ghosts in Our Machines: Background and Policy Proposals on the "Spyware" Problem:

Many of these applications represent a significant privacy threat, but in our view the larger concerns raised by these programs are transparency and user control, problems sometimes overlooked in discussions about the issue and to a certain extent obscured by the term "spyware" itself.

CDT is also seeking stories about experiences with spyware:Join CDT's Campaign Against "Spyware"

(via beSpacific)

Can CAN-SPAM Can Spam?

Marketing Profs: The CAN-SPAM Act of 2003: Real Reform or Political Pork?

The CAN-SPAM Act clearly stems from good intentions, but as currently written it may result in some unintended consequences, including an increase in spam (as most would define it) thanks to its guidelines for legally sending unsolicited commercial email. With a little work, the CAN-SPAM Act might begin to do for email what the Telephone Consumer Protection Act did for faxing—save it from becoming more trouble than it’s worth.

Previously: CAN-SPAM Act Can't Stop Spam

Optimism and Pessimism

Is the music industry growing or shrinking? Reuters reports on optimism from Forrester and GartnerG2 analysts:

After a bruising three-year slump, CD sales are showing signs of turning up, and analysts expect that another big stocking stuffer this year will be digital music players, driving traffic to a range of legal download services struggling to make a name in the burgeoning market.

In contrast, Informa Media expects music sales to fall for the next two years:

For 2003 the value of the world's music sales is forecast to fall for the fourth year in succession. Informa Media estimates the decrease in the retail value will be 8.9%, reducing the overall value of sales to $28.2 billion. CD sales, which fell for the first time in 2001, are forecast to decrease for a third year - by 8% to 2.1 billion units.

AT&T patents spam obfusaction tech reports: AT&T patents anti-antispam technology. Shouldn't the double negatives cancel out and the headline read "AT&T patents spam technology?"

The patent describes a system and method for counteracting message filtering:

A system and method for circumventing schemes that use duplication detection to detect and block unsolicited e-mail (spam.) An address on a list is assigned to one of m sublists, where m is an integer that is greater than one. A set of m different messages are created. A different message from the set of m different messages is sent to the addresses on each sublist. In this way, spam countermeasures based upon duplicate detection schemes are foiled.

Politboro Approves of Broadcast Flag

Rep. Zoe Lofgren (D-CA) discusses the FCC Broadcast Flag ruling in a San Jose Mercury News op-ed: FCC rule could harm tech innovation

But here's the kicker. Under the new rules, the FCC gets to decide if a particular technology provides sufficient protection. If you're not on the FCC's pre-approved list, you can't sell your product....

The FCC's plan sounds a little like the old Soviet Union. And we know how well centralized state control worked for them. That's why Congress never gave the FCC the power to dictate the design of new computers or consumer electronics devices.

Public Bandwidth

NY Times: In Utah, Public Works Project in Digital

The cities involved argue that reliable access to high-speed data is so important to their goals of improving education and advancing economic growth that the project should be seen as no more controversial than the traditional public role in building roads, bridges, sewers and schools - as well as electric power systems, which are often municipally owned in the Western United States.

Opt-out opt out

Wired News: Acxiom Opts Out of Opt-Out

Acxiom calls itself the premier source of addresses and phone numbers for telemarketers and mass mailers. But when it receives a list of names of people who want to get off its lists, the company considers the request to be junk mail and sends it back.

The Little Rock, Arkansas, company, which made $958 million in revenue last year from selling people's names, addresses and profiles, says it wants to hear personally from each individual who wants to opt out. That way, Acxiom can explain how fair its privacy policies are.

Microsoft Plans To Sell Music Over the Web and Wal-Mart to launch online music service.

Steve Jobs warns: "there's no way to make money on these stores." purchased select assets from Vivendi Universal and plans to start a digital music site, but will not use any of the independent music on the current

Pearl Jam is getting into the act, too. NY Times reports: Pearl Jam, on Its Own, Seizes the Moment and Sells CD on the Web

The Artists Rights and Theft Prevention Act, introduced in the Senate by John Cornyn (R-TX) and Dianne Feinstein (D-CA) would create criminal penalties for anyone who makes available over the internet a pre-release movie or album. Share 'True Crime,' do the time

The threat of a three-year prison term kicks in when anyone makes an illicit copy of a movie "available on a computer network accessible to members of the public," when the film "was intended for commercial distribution but had not been so distributed at the time." Once the film is commercially distributed, the felony penalties appear to no longer apply.

Washington Post: Senate Bill Targets Internet Pirates

"We're trying to go after the pre-release stuff that is absolutely killing any potential revenue for one of the segments of our economy that's doing well," said Don Stewart, a spokesman for Cornyn. The movie studios and record labels are "just absolutely getting clobbered."

Video Game Law

A conference in NY will discuss the intersection of video game interactions and legal norms: The State of Play: Law, Games, and Virtual Worlds

The new environments of electronic games, especially those that are massively multiplayer, are not just gamespaces; they are cultures unto themselves. Like real societies, they grow and evolve as their members create rules and norms.  Some norms in games are cooperative and democratic, others are dictatorial and dystopic. This interdisciplinary conference will examine the state of play today in an effort to understand the phenomenon of digital games and the virtual worlds they create and to discuss the complex social, psychological, and legal issues to which they give rise.

There is no fee to attend the conference, except for the $150 fee to attend.

Wired News: Laying Down the Virtual Law 

A host of questions are on everyone's minds: Are virtual worlds the new Wild West or a legitimate province of the courts? Is game play equivalent to speech as defined in the First Amendment? Is there such a thing as fraud in a metaverse?

Kaaza to distribute Bollywood film Kazaa says hello to digital Bollywood

The Hindi-language film, "Supari," will be offered to Kazaa users for $2.99, under the terms of the agreement the Australian company has signed with P2P products distributor Altnet and Indian filmmaker Aum Creates Unlimited.

Internet Surveillance on Campus Don't look now, but the dean is watching

Perhaps most disturbing to critics and privacy advocates is the fact that schools are responding to subpoenas from the music recording industry with as much alacrity -- and as many privacy-invading techniques -- as they are to subpoenas related to national security. In their efforts to ferret out pirates, administrators are violating their own campus privacy policies, treating students who use P2P software the same way they would treat potential terrorists.

Global webcast licenses

IFPI: Recording industry announces new one-stop-shop for webcast licensing

The recording industry today announces a new international agreement that will allow internet webcasters to stream music programmes to consumers on the basis of a single "one-stop" licence.

The agreement will allow webcasters to clear record producers' rights in a multitude of countries by entering into a licence in one participating country. It will come into force as it is signed by national collecting societies over the next few weeks.

Reuters: Music industry offers global Webcast license

On October 31, the United Kingdom's new copyright law took effect: The Copyright and Related Rights Regulations 2003. This new law is intended to harmonize UK law with EU copyright law, particularly Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. According to the UK Patent Office, the new statute is intended to address "certain, largely technical, changes are necessary to bring the 1988 Act into conformity with the Copyright Directive.

However, in a newly-released report, Implementing the European Union Copyright Directive, the Foundation for Information Policy Research finds problems with EU copyright law:

European citizens could find many common activities banned as the EU Copyright Directive becomes law, a new FIPR report reveals. Transferring songs from a copy-protected CD to a Walkman or computer could be illegal, as could watching a DVD on a computer running Linux.

BBC News: Why that mix CD might be illegal

Madster seeks Cert

Albany Times-Union: Madster creator seeks hearing: "The founder of the defunct file-swapping service Madster wants the U.S. Supreme Court to allow him to restart the service."

Ernest Miller: : "This would be a bad set of facts and argument to use as the basis for the court to take another look at Sony v. Universal."

DRM and Social Norms

First Monday:Digital rights management and the breakdown of social norms by Christopher May

At the centre of the protection of intellectual property rights (IPRs) is a long history of political bargains struck between private rights to reward and the social benefit of information/knowledge diffusion. The historical dynamic of politics in this policy area has been to expand the rights of owners while circumscribing the public realm of information and knowledge. In recent decades the public domain has become merely a residual, all that is left when all other rights (as constructed by IPRs) have been exercised. The advent of digital rights management (DRM) technologies has disturbed a reasonably legitimate politico-legal settlement over "fair use," challenging the existing balance between the rights of "creators" and the interests of users. The breakdown of the norms underpinning IPRs has prompted renewed debate regarding their legitimacy.

DRM not only imposes an artificial scarcity on digital goods, so that they more closely resemble physical goods, but can make access more restrictive than with analog media. Must digital media allow the same level of public access and use as traditional media, or should copyright owners be allowed to granularly control how their expressions are used? Where is the proper balance between absolute protection and the public's fair uses?

Hollywood, meet Innovation

LA Times: Is Hollywood Failing to See the Big Picture?

Even in this era of sweeping technological change, one immutable law remains: The customer is always right. The record industry has been staggered because it was two steps behind its audience, which is bad enough when you're promoting a new song, even worse when you're trying to build a new business. The movie industry realizes that it can't afford to be slow off the mark.

E-Vote Update

The establishment media is picking up on the issues and potential problems with unsecured electronic voting:

NY Times: Machine Politics in the Digital Age

"I am committed to helping Ohio deliver its electoral votes to the president next year," wrote Mr. O'Dell, whose company [Diebold Inc.] is based in Canton, Ohio.

But it is not the only way that Mr. O'Dell is involved in the election process. Through Diebold Election Systems, a subsidiary in McKinney, Tex., his company is among the country's biggest suppliers of paperless, touch-screen voting machines.

Washington Post: Touch-and-Go Elections

Diebold's legal threats against students uploading company memos describing the security flaws in their electronic voting machines continue.
Harvard Crimson: Student Accused of Violating Copyrights

In court, the suit against Diebold by non-profit ISP Online Policy Group (OPG) and two Swarthmore students will move ahead on an accelerated schedule,
EFF: Judge Speeds Case on Electronic Voting Company's Threats Against Critics

The FCC ruled yesterday that consumers will be able to not only port phone numbers from one mobile phone carrier to another, but from landline telephones to mobile phones, also by November 24, 2003, "unless [wireline carriers] can demonstrate that complying with these regulations would be technically infeasible."

News release: FCC Clears Way for Local Number Portability Between Wireline and Wireless Carriers
FCC Ruling
Commissioners' statements: Powell, Abernathy Copps , Martin , Adelstein

NY Times: F.C.C. Backs Phone Number Portability

The ruling by the F.C.C. was a defeat for phone companies that argued that transferring wire-line phone numbers to wireless services was logistically difficult. They proposed a more limited measure that would have allowed only about one in eight phone users to move a wire-line number to a mobile phone, the agency said.

FCC: Wireless Local Number Portability Frequently Asked Questions

Penn State and Napster

While Penn State's deal with Roxio will provide access to popular music, how relevant is the Napster catalog to academic music studies? Wouldn't Penn State be more successfully promoting its academic goals by spending the money from the Roxio deal to create digital streaming access to its entire music library?

Penn State Live: Q&A: Penn State's new online music service with Napster

Penn State is concerned that some of its students don't understand that downloading music over computer networks without purchasing copyright permission is both unethical and against the law. The University believes it has a responsibility to do something to change that. Penn State will continue to try to educate students on this issue and will continue to enforce its strong policies against copyright infringement. At the same time, the University wants to provide legal alternatives to illegal downloading. This service is directly aimed at helping students to understand the issue and to provide them with an alternative.

The Collegian: PSU students react to deal with Napster: "I think it is kind of dumb." Penn State students blast Napster deal: "The money I pay could go to much better things such as rebuilding the network or better lab equipment."

Boston Globe: Penn State, Roxio link to let files flow

Wired News: Penn State, Napster Ink Pact

Derek Slater: Thoughts on PSU/Napster and Responses to Thoughts on PSU/Napster

The Register: Penn State's pigopolist pork is not smelling sweet

Previously: Napster follows in the footsteps of Lexis and Westlaw


Washington Post: FCC Deserves a Digital Thanks for Nothing

The Federal Communications Commission has figured out how to make digital television more appealing to the millions of consumers who haven't bought into it: Force manufacturers to make hardware that's less capable than what's sold today.

Susan Crawford: "I'm unhappy with what the FCC has done, because it seems to be boundless, unprincipled, and based on irrational assumptions."

Arnold Kling: An Open Letter to Jack Valenti

Please note that it is inaccurate to refer to broadcast HDTV as "free TV," particularly in the wake of the broadcast flag regulation. In fact, HDTV is going to be very expensive for the economy as a whole, as millions of devices will now have to be made to conform to the Broadcast Flag standard. Furthermore, I predict that individuals will spend time and resources trying to "hack" the Broadcast Flag, which will lead to modifications of the technology, which will layer on more costs to the economy.

(via Copyfight)

FTC blocks pop-up spammer

The FTC took action against D-Squared Solutions in order to stop that company's deceptive trade practices and obtained a Temporary Restraining Order. D-Squared sells software to block pop-up Windows Messenger spam, as well as software to send Windows Messenger pop-up spam and advertises these products by using, not suprisingly, Windows Messenger spam.

From the FTC:
List of web sites operated by D-Squared and its licensees
News release

The Baltimore Sun: Court halts Web 'pop-up' advertising
MSNBC: FTC disables pop-up ad firm

Microsoft: Disabling Messenger Service in Windows XP (and 2000)

Legislation and Blacklists AGs Want to Can the Can Spam Bill

AGs from California, Kansas, Maryland, Nevada, Texas, Vermont, Virginia and Washington signed the letter, which said that the amended act has so many loopholes, exceptions and standards of proof that it won't protect consumers. They also said that the law wouldn't deter spammers, but merely foster more litigation.

NY Times: Spammers Can Run but They Can't Hide

Catching Up: Music

Here are some digital downloading and music-related links I didn't get around to posting on Friday:

The Economist: Is the threat of online piracy receding?

People in the music industry are feeling more optimistic than they have for years. Apple's digital music-download service, iTunes, has won customers in far greater numbers than once seemed possible. This week saw the launch of Napster 2.0, a paying version of the service shut down by big music and the courts in 2002 because its software allowed people to share songs for free. Legal, paid-for online services, music executives hope, together with lawsuits against file-sharers, could save the industry from internet piracy.

bIPlog: RIAA Lawsuit Party

eMarketer: Music Downloading: Wrong, But Going Strong

70% of teenage consumers say they have downloaded music. When asked whether they consider such an act to be wrong, over 47% of all respondents said “yes” but just 32.6% of teenage respondents said the same.

NPD Group: Consumers Delete Large Numbers of Digital Music Files From PC Hard Drives

In August 1.4 million households deleted all the digital music files saved on their PC hard drives. Prior to August, deletions were at much lower levels. For example in May of 2003, when NPD first began to track music file deletions, 606,000 households deleted all digital music files from their PCs. Eighty percent of the consumers who deleted files had fewer than 50 files saved; just 10 percent had more than 200 files.

Napster Goes to School

Reuters: Napster, Penn State to Announce Deal - Sources

Song-swap pioneer-turned online music store Napster is expected to announce a deal with Penn State University to offer its newly relaunched music service for free to tens of thousands of students, sources familiar with the matter said on Wednesday.
It looks like Napster is borrow some marketing ideas from Lexis and WestLaw: get students hooked with free and convenient access to the point where students rely on that access so that graduates will become subscribers. Hip-Hop Band Sues Fox Over New Sitcom's Name B000003JBE.01.LZZZZZZZ.jpg

On Sunday, Fox debuted a new comedy called "Arrested Development." The band Arrested Development has sued Fox for four counts of trademark infringement in DeKalb County Superior Court. The band is asking for an immediate halt to the use of its name, plus damages and attorney fees....

In the complaint, the band calls the name of the new sitcom a "confusingly similar imitation" of the band's name, which is "likely to deceive, confuse and mislead prospective purchasers" of the defendant's products as "authorized by or in some manner associated with the plaintiffs, which they are not."

The complaint alleges that the misappropriation of the plaintiffs' name is causing "irreparable harm" to the band's name and reputation. The band has a federal trademark on its name, according to court filings, but elected to sue Fox in DeKalb under Georgia common law for trademark infringement. Venue is proper, according to the complaint, because one band member's home and the Fox affiliate are located in DeKalb.

Making the US safe for Spam Making the U.S. safe for Spam

By eliminating a consumer's right to sue, overriding state legislation, and providing for truthful-yet-unwanted e-mail from so-called legitimate spammers, the Can Spam Act will create a flood of unsolicited commercial e-mail, all of it legal.

Previously: CAN-SPAM Act can't stop spam

FCC Adopts Broadcast Flag

FCC Adopts Anti-Piracy Protection for Digital TV

FCC order: In the Matter of: Digital Content Broadcast Protection

Commissioner Press Statements: Powell , Abernathy, Copps, Adelstein

EFF: Federal Communications Commission Adopts Hollywood Tech Mandate: "The FCC has decided that the way to get Americans to adopt digital DTV is to make it cost more and do less."

AP: FCC approves Internet anti-piracy tool

Ernest Miller: FCC Mandates Broadcast Flag

Sampling without infringing

A three judge panel of the Ninth Circuit Court of Appeals decided Newton v. Diamond, et. al., an appeal from summary judgment in a copyright infringement case against the Beastie Boys, brought by jazz musician James W. Newton, Jr. choir_deminimus.png

This appeal raises the difficult and important issue of whether the incorporation of a short segment of a musical recording into a new musical recording, i.e., the practice of "sampling," requires a license to use both the performance and the composition of the original recording. The particular sample in this case consists of a six-second, three-note segment of a performance of one of his own compositions by plaintiff, and accomplished jazz flutist, James W. Newton. The defendants, the performers who did the sampling, are the members of the musical group Beastie Boys. They obtained a license to sample the sound recording of Newton's copyrighted performance, but they did not obtain a license to use Newton's underlying composition, which is also copyrighted.

The district court granted summary judgment to the defendants. In a scholarly opinion, it held that no license to the underlying composition was required because, as a matter of law, the notes in question -- C - D flat - C, over a held C note -- lacked sufficient originality to merit copyright protection. Newton v. Diamond, 204 F. Supp. 2d 1244, 1256 (C.D. Cal. 2002). The district court also held that even if the sampled segment of the composition were original, Beastie Boys' use was de minimis and therefore not actionable. Id. at 1259. We affirm on the ground that the use was de minimis.

(via How Appealing)

More analysis from Ernest Miller: Beastie Boys Sampling Not Infringement

Pirates of the Internet

60 Minutes ran a scare story about file sharing this week: Pirates Of The Internet

Fortunately, federal law already prohibits piracy and provides for harsh penalties in 18 USC § 1652 Citizens as pirates:

Whoever, being a citizen of the United States, commits any murder or robbery, or any act of hostility against the United States, or against any citizen thereof, on the high seas, under color of any commission from any foreign prince, or state, or on pretense of authority from any person, is a pirate, and shall be imprisoned for life

Streaming Patent Suit to Go Forward Patent ruling tugs at Net downloads

Last Thursday, a federal judge in the Western District Court of Pennsylvania granted SightSound's motion for summary judgment against Bertelsmann's divisions, paving the road for the 5-year dispute to go to jury trial. The court also dismissed Bertelsmann's request to avoid trial, which was based on the assertion that SightSound had not filed the proper information with the United States Patent and Trademark Office.

The patents in question are 5,191,573, a method for transmitting a desired digital video or audio signal, and 5,675,734, a system for transmitting desired digital video or audio signals

California Halts E-Vote Certification

Wired News: California Halts E-Vote Certification

The discovery that uncertified software may have been used in electronic voting machines has prompted California officials to delay plans to approve new machines made by Diebold Election Systems.

Digital Music Faces Hurdles in Europe

Reuters (via Digital Music Biz Faces Hurdles in Europe

Apple's plans to take a bite out of the still nascent European sector will depend strongly on its capacity to deal with the region's complex multilingual, multicultural and multi-regulatory issues. Moreover, it will face intense competition from already established music e-tailers and other U.S. rivals....

"You can't go to a single place to get all the rights. To be able to deal with them requires physical traveling, a certain amount of negotiations expertise, and you need to be able to speak the native languages," says Mark Mulligan, senior analyst at Internet research firm Jupiter Research.

EFF: Online Policy Group v. Diebold, Inc.

Diebold, Inc., manufacturer of electronic voting machines, has been sending out dozens of cease and desist letters to Internet Service Providers (ISPs), after internal documents indicating flaws in their systems were published on the Internet. The company cited copyright violations under the Digital Millennium Copyright Act (DMCA) and demanded that the documents be taken down.

Now EFF and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School are fighting back, seeking a court order on behalf of nonprofit ISP Online Policy Group (OPG) and two Swarthmore College students to prevent Diebold’s abusive copyright claims from silencing public debate about voting, the very foundation of our democratic process.

Copyfight: EFF, CIS Seek Court Order Against Diebold

Derek Slater: "On Friday, Harvard's Computer Security team contacted me about Diebold's notice-and-takedown request."

NPR: Activist Group to Sue E-Voting Firm

Copyright, File Sharing and Democracy

NY Times: File Sharing Pits Copyright Against Free Speech

Forbidden files are circulating on the Internet and threats of lawsuits are in the air. Music trading? No, it is the growing controversy over one company’s electronic voting systems, and the issues being raised, some legal scholars say, are as fundamental as the sanctity of elections and the right to free speech.

The Diebold issue shows how p2p can serve democracy. It also raises the question: is democracy a non-infringing fair use?

This article is full of great quotes:

“Are these companies staffed by folks completely ignorant of computer security,” [Prof. Rebecca Mercuri] said, “or are they just blatantly flaunting that they can breach every possible rule of protocol and still sell voting machines everywhere with impunity?”

“[Sequoia's approach is] very different from the way that Diebold has been doing things.” [Aviel D.] Rubin, who has received a cease-and-desist notice from Diebold because of his research, said, “The solution is to stop selling insecure voting machines and not to continue threatening students who are only trying to protect our democracy.”

Boomers buy music

NY Times: At Sea With MP3's, Boomers Buoy Struggling Record Industry

Even better for the music industry, these fans actually pay for the music. "We feel like we're losing less sales to file sharing" on albums by older artists, as well as those by younger artists who appeal to baby boomers, like Ms. Jones, John Mayer and Josh Groban, Mr. Botwin, of Columbia Records, said.

U.K. plans to extradite spammers

Reuters: U.K. Plans to Extradite Spammers 

British lawmakers plan to use a new tactic to stop the torrent of junk e-mail spam that floods in from overseas: extraditing the mass-mailers and bringing them to trial in the United Kingdom.

"Spammers are no longer an irritant, they are a threat," British MP Brian White said Thursday. The U.K. last month was the second European Union country after Italy to criminalize spam in a law that goes into effect in December.

Aussie! Aussie! Aussie! Vote! Vote! Vote!

Wired News: Aussies Do It Right: E-Voting.

Unlike here in the US, Australian e-voting technology is being adopted in order to accurately and securely count votes.

Napster: Not Bad

Wired News looks at the new Napster legit download service and finds that despite some confusing and inconsistent availability of tracks, depending on the license terms, New Napster Off to a Solid Start 

Despite its flexibility, the service can also be confusing. Some songs in the Napster library can only be streamed, while others are only available for a 99-cent download, even if you're paying for the streaming service. Which songs fall into each category isn't clearly spelled out. Some users are liable to think they are signing up for unlimited access to the Napster library, only to find out that some tracks must be purchased separately.

Don't plant, those seeds are patented

NY Times: Saving Seeds Subjects Farmers to Suits Over Patent

In 1998, Mr. McFarling bought 1,000 bags of genetically altered soybean seeds, and he did what he had always done. But the seeds, called Roundup Ready, are patented. When Monsanto, which holds the patent, learned what Mr. McFarling had sown, it sued him in federal court in St. Louis for patent infringement and was awarded $780,000.

The company calls the planting of saved seed piracy, and it says it has won millions of dollars from farmers in lawsuits and settlements in such cases. Mr. McFarling's is the first to reach a federal appeals court, which will consider how the law should reconcile patented food with a practice as old as farming itself.

Are shrinkwrap licenses for seed packages enforceable? How much of a limited monopoly should be granted to holders of patents on seeds? To what extent should companies like Monsanto be able to control the way their patented seeds are used?

Workplace Computer Privacy Workplace Computer Off-Limits?

A New Haven, Conn., criminal defense lawyer wants the state Supreme Court to recognize that employees have some expectation of privacy when it comes to their workplace computers -- even if the material they are viewing or downloading is child pornography.

See also: Leventhal v. Knapek, where the Second Circuit ruled that a public employee has a reasonable expectation of privacy for his workplace computer and that a warrantless search of that computer violates the Fourth Amendment.

Even if employees have a reasonable expectation of privacy in their workplace computer, downloading a library of child pornography is still a bad idea.

British Library archives websites

Change in UK Law Allows Library to Archive Electronic Publications

A Private Members Bill, introduced by Chris Mole MP in December 2002 has passed all its Parliamentary hurdles and became law today when it received Royal Assent. The Legal Deposit Libraries Act 2003 extends previous legal deposit legislation passed nearly 100 years ago in 1911. The Act enshrines the principle that electronic or e-publications and other non-print materials will be deposited in the future under secondary legislation

BBC: British Library archives websites Boucher Calls Copyright Office 'Misguided'

U.S. Rep. Rick Boucher (D.-Va.), a longtime champion of fair use rights, said Thursday the Copyright Office's ruling earlier this week denying consumers the right to make "fair use" copies of digitally recorded material except in very narrowly defined cases, was a "misguided decision."