October 2005 Archives

Alito on Copyright and More

William Patry discusses Judge Alito's decision in one copyright case and thinks that it bodes well: Judge Alito and Copyright

Copyright lawyers should cheer the appointment of Judge Samuel Alito to the Supreme Court. In 2004, Judge Alito was the author of the en banc opinion in Southco, Inc. v. Kanebridge Corp., 390 F.3d 276. He was also the author of a panel opinion in the same case three years earlier, 258 F.3d 148. Both opinions are thoughtful looks at basic questions of originality.

Laura Quilter looks at Judge Alito's record on copyright, First Amendment and internet law cases: Alito on Copyright, First Amendment, Cyberlaw:

I haven’t found much in the 3rd Circuit case law that suggests Alito has dealt with a lot of the most pressing copyright questions or the constitutional copyright questions, beyond originality. He has been good on originality, and in general he appears to be careful and thoughtful about copyright.

C.E. Petit is "not entirely displeased" with the Alito nomination, but thinks the Court could use a justice versed in the scientific method: Scrivener's Error: Just a Short Note:

What really bothers me, though, is that there hasn't been a scientist on the Court in a looooooooooong time. The closest we've come has been Justice Blackmun, and that's far from satisfactory. Instead, we have something much closer to Paul V trying to determine whether the Earth really did move after condemning to Galileo.1 Some of the greatest errors in administrative law (and, to a lesser extent, in intellectual property law) have come because the Justices, their clerks, and the lawyers arguing before them had not internalized the scientific method… and thereby missed significant policy implications.

Copyright may be one of the more interesting, but in all likelihood not the most important issue on which the next Supreme Court justice will rule. Scotusblog (not surprisingly) offers a solid roundup of reactions from bloggers and interesst groups: Blog Coverage of the Alito Nomination

Under Review

Denise Howell hosts Blawg Review #30 this week. Next week, Blawg Review stops by here. Fortunately, it looks like it should be a busy week in the blawgosphere, with election day, a new Supreme Court nominee, and whatever else happens in the next week.

Also, we'll be taking advantage of hosting to make the big announcement about major changes coming to this little site here...

Filtering blogs

Wired News reports on companies that are using filtering software to prevent access to blog sites: No Longer Safe for Work: Blogs:

Robert Mason (not his real name) would love to spend a few minutes during lunch catching up on blog posts from around the web, but his company doesn't allow it. The financial institution where Mason works as a vice president has security filters set up to block access to -- among other things -- any website that contains the phrase 'blog' in the URL.

It can be dangerous to let employees access to a type of technology that can connect those employees with frequently-updated sources of information about work-related topics, right?

Oh, Canada

A new blog about copyright policy in Canada: CopyrightWatch.ca: "This blog is supported by a team of academics, public interest advocates, and creators concerned that copyright serve the interests of ordinary Canadians."

Dan Crane, who played guitar as "Jean-Luc Retard" in the band Les Sans Culottes recounts the fun of federal trademark litigation over the band name in Slate: Nom de Guerre - How my faux French band wound up in federal court.: "On June 20, 2005, my faux French band Les Sans Culottes showed up for our strangest gig to date: an appearance in federal court."

This is why intra-band operating agreements are a good idea.

Beware of the Loose Seal

The NY Times reports: Protecting the Presidential Seal. No Joke.: "You might have thought that the White House had enough on its plate late last month, what with its search for a new Supreme Court nominee, the continuing war in Iraq and the C.I.A. leak investigation. But it found time to add another item to its agenda - stopping The Onion, the satirical newspaper, from using the presidential seal."

See 18 U.S.C. §713: Use of likenesses of the great seal of the United States, the seals of the President and Vice President, the seal of the United States Senate, the seal of the United States House of Representatives, and the seal of the United States Congress

Publishers Sue Google, Too

Following on the heels of authors, The Association of American Publishers is suing Google:

The Association of American Publishers (AAP) today announced the filing of a lawsuit against Google over its plans to digitally copy and distribute copyrighted works without permission of the copyright owners.  The lawsuit was filed only after lengthy discussions broke down between AAP and Google’s top management regarding the copyright infringement implications of the Google Print Library Project.
The suit, which seeks a declaration by the court that Google commits infringement when it scans entire books covered by copyright and a court order preventing it from doing so without permission of the copyright owner, was filed on behalf of five major publisher members of AAP: The McGraw-Hill Companies, Pearson Education, Penguin Group (USA), Simon & Schuster and John Wiley & Sons.

Citing to the Blogosphere

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The newest (18th) edition of the Bluebook features a new rule for citing to blog posts:

Posting to blogs take one of two formats. If there is only one poster to the blog, cite as a Web page, but include the date and time-stamp to indicate the specific posting cited. If there are multiple posters on the blog, cite as a posting to a discussion forum. In both cases, indicate the title of the blog before the URL:
single poster - How Appealing, http://legalaffairs.org/howappealing/ (Sept. 1, 2004, 21:20 EST).

multiple posters - Posting of Lyle Denniston to SCOTUSblog, http://www.goldsteinhowe.com/blog/index.cfm (Sept. 28, 2004, 13:26 EST).

Instead of taking advantage of permalinks and post titles, this citation format makes it more complicated and difficult to find a cited resource.

Anthony Rickey notes that the Yale Law Journal's new website, The Pocket Part, suggests that authors disregard the Bluebook suggested form for citing to blogs and use a citation format that makes sense: Bluebook Followup: Do As We Say, Not As We Do: "Nice to see one of the Gang of Four deciding that the rules on blog citation don't make sense."

One argument (made in a comment to Rickey) is that the Pocket Part is a "web site," not a "blog." Why are the rules for citation different? How are authors supposed to to evaluate whether an internet resource is a "web site" or a "blog?"

The Bluebook rule actually makes some amount of sense for an internet resource that has no more precise way to point to a specific page. But why not cite the author's name in a single author blog? What is to be done with blogs that use only category-based archiving, rather than date-based archiving?

Tragedy of the digital commons

The internet is a network of networks, decentralized and generally unregulated-- a digital commons. Is the internet suffering a tragedy of the commons?

Wikipedia has a concise summary of the evolution of the spam problem on the net: Spam. First, Usenet fell to the assault of spam. Then, e-mail. Now, the web is under assault.

Matt Haughey noticed how spammers are abusing Google's Blogspot service: When it rains, it pours:

It looks like one monster spam blogger has unleashed a boatload of new blogspot blogs, always in the form of keyword-(random number).blogspot.com (like lottery-123123.blogspot.com). They suck in RSS feeds from blogs like mine and boingboing and others, then insert random phrases into the copy, with a link to their own sites using phrases they want to game google with

Mark Cuban: The Shit hit the fan today: "The blogosphere was hit by a blogspot.com splogbomb. Someone did the inevitable and wrote a script that created blog after blog and post after post."

Are all open digital communities subject to the spam dilemma? How do we bar unproductive uses of the digital commons without raising the barrier to entry and blocking other voices?

The internet revolutionizes communications, making it possible for anyone to reach a global audience. That has a downside.

Last night, I had a dream about prepping for and giving a presentation about DRM. I think I need to get out more.

Video Killed the Radio Star

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Meet the new iPod, same as the old iPod, but it is smaller and happens to play video, too. While the video capabilities are obviously a big deal, the new iPod is still mainly a music player. Video is merely a nice extra feature in the iPod, but not the core function of the device.

Video is very different from audio. It engages both sight and sound and requires greater attention. While it is possible to walk down the street listening to music or talk radio, it is considerably more difficult and dangerous to walk down the same street watching a video, so the fact that the iPod treats video as an afterthought probably isn't such a big drawback.

Unfortunately, the video features in iTunes lack the polish of the program's music management. Perhaps this is because audio is much easier to manipulate digitally. Video requires more storage space and computing power to edit and transfer medium.

iTunes started as a program to rip music from CD's and create a digital music library on a hard drive. So, when it first dropped, the iPod scratched an itch. Music loving geeks had been ripping, mixing and burning their music in iTunes and looking for a way to take that away from the computer. Only after the iPod was already a success was Apple able to start the iTunes Music Store (iTMS) and offer a way to buy new music online. With iTunes 6, iTMS also sells video downloads.

Today, geeks are recording and time-shifting video on TiVo and other digital video recorders. iTunes itself does not yet have the same ability to import already acquired video from another source. It is possible to rip a DVD, but MUCH more complicated than ripping a CD. Getting video from a DVD to iTunes takes 18 steps, while getting music from a CD takes 2 steps (insert CD, click "Import.")

Where is the integration with TiVo-To-Go? If iTunes is going to be the premier application for managing video in addition to audio, users will probably want to add previously-acquired digital video (on DVD or DVR) to downloads from the iTunes store or videoblogs.

But, maybe not. Video isn't the main point of the iPod-- it is just a feature that adds value at the margin for most users. TiVo users are watching on their televisions at home, not on their computers. The killer app for video on the iPod may be home movies. Exported directly from iMovie to the iPod, they are easy to carry around and show. For others, buying the occasional video for $2 a pop might be enough to scratch the itch.

Unfortunately, the new video section of the iTMS apparently means the demise of the old free music video section. Despite its lack of organization, it was a great way to see music videos. But now, iTunes makes it possible to download video. Labels should be especially happy, as this enables the monetization of music videos for the first time.

The video files available from the iTMS are Quicktime files encoded using the H.264 codec and encoded at a resolution of 320x240 pixels. On a 2.5", 320x240 pixel screen, videos with a resolution of 320x240 are good enough.

On a larger screen, though, 320x240 isn't much. Artifacts become noticeable. On a larger screen, 320x240 video, even in the spectacular H.264 codec, can not compare to the higher-resolution files available on P2P. Last season, I caught up on episodes of Lost that I missed by downloading them. The files I found were encoded at a resolution of 608x336 using the XviD codec (with a file size of about 350 MB). At full-screen on a 12" laptop or played through an iBook on a 27" television, these look really nice. In fact, the downloads look better than my analog cable feed, since the P2P files came from high-definition sources. Of course, the iTMS videos have the advantage of much smaller file size.

For music, the iTMS works well even without an iPod. Not only is it more convenient than than searching for the same songs on P2P, but the quality is generally higher than downloads from P2P, as the iTMS generally uses the highest-quality transfers available of files from master recordings. 128kbps AAC is good enough for most consumer-level headphones and speakers. All but audiophiles will be happy with the artifact-free files.

Personally, I don't mind that the iTunes Music Store files are encumbered with DRM, until I attempt to do something that the DRM will not allow. I was going to post a short excerpt of an iTMS video along with an excerpt of a video recorded on my ReplayTV and one downloaded from P2P. While it is possible to cut and paste a short clip from an iTMS video, Quicktime Pro will not allow one to save that short clip in a file.

While Windows Media Center advocates and inattentive reviewers will gripe that the iPod can only play video from the iTunes store, the new iPod can play video in the open MP4 standard. Only the downloads from the iTMS involve proprietary DRM.

Even without owning a video iPod, downloading video from the iTMS is a nice option (and would be a much better option if the files looked nicer than heavily-played VHS tape.) This could solve a problem I wrote about just over a year ago: the lack of a market for old television programming that cannot justify a release on DVD: Market Failure on the Long Tail. It took a decent amount of effort to find torrent downloads of early Amazing Race seasons. (This specific problem was solved last week, with the release of TAR classic on DVD, but iTMS provides a way to solve the general problem.

DVD releases of full seasons of TV series have been quite successful. But for every Lost or The Simpsons, there is some other series that will not justify a DVD release. For those programs with marginal interest, there may be enough to make a profit from a digitally distributed release through iTunes. While no one in their right minds would release a DVD set of Mark Cuban's reality TV show, The Benefactor, there might be enough people who would be interested in downloading an episode. Cuban thinks that bringing television to iTunes not only makes a lot of sense, but completely changes the economic model for television: How Bob Iger Saved Network TV

Cuban also thinks that as the video store develops, Apple will address the concerns about video quality:

I expect that either a 2nd tier of pricing will come along from Apple for full screen quality that is designed to play on a TV rather than an IPod or half screen on a Laptop or PC, as competitors compete by enabling higher quality and full screen playback. All of which will further expand the market.

I look forward to the first version of iTunes that has serious video library features. For now, the big winner with iTunes 6 and the video-playing iPod is Rocketboom. Rocketboom is a wonderful videoblog that distributes free short video content every weekday. iTunes automatically downloads each vlog entry and syncs to the iPod (via RSS and the podcast features introduced over the summer in iTunes 4.9.) Video that fits in a commute, doesn't rely on high resolution or high definition, and doesn't cost anything to watch is the killer app for the iPod. J.D. Lasica agrees: "Not one word about what's really going to drive sales of the video iPod: not weeks-old 52-minute episodes of "Desperate Housewives" for $1.99 a download -- but free video. Professional-looking short-form video produced by people like you and me."
Video iPod: Where's discussion of free video?

The new video iPod does not redefine the portable media player like the original iPod. Instead, it is an evolutionary development that may open the doors to lots more video that can be ripped, mixed and 'Podded. I, for one, welcome our new media overlords.