June 2006 Archives

DRM and Copyright's fuzzy bounds

Last week, Wendy Seltzer (Brooklyn Law) and Fritz Attaway (MPAA) debate DRM at the WSJ: 'DRM' Protects Downloads, But Does It Stifle Innovation?. The difference in opinions is about how end users relate to copyrightable works. The strong copyright/pro-DRM view is that once is a work is fixed, it is inviolably fixed in that particular arrangement unless the copyright owner decides to offer a different version. The argument against DRM is that copyright law allows individuals to use a particular copy of a work in any manner they want-- such as cutting up a book and stapling the pages together out of order-- but DRM makes it impossible to engage in these uses that are permissible under copyright.

The copyright maximalists are concerned about indiscriminate redistribution. The anti-copyright advocates are concerned with restrictions on lawful use. It is difficult to distinguish between the uses necessary for each end result, so to prevent indiscriminate redistribution constricts the ability to use lawfully acquired material. But the digital formats that allow users to remix and repurpose lawfully acquired copies in non-infringing manners also allow for indiscriminate redistribution.

A technological system can restrict the ability to make copies. The law can be fuzzier, because the boundaries between infringement, fair use, and non-infringing use are not clearly delineated-- context is crucial.

Fair Use Network

The Free Expression Policy Project at NYU's Brennan Center launched the: Fair Use Network: "The Fair Use Network was created because of the many questions that artists, writers, and others have about 'IP' issues. Whether you are trying to understand your own copyright or trademark rights, or are a 'user' of materials created by others, the information here will help you understand the system — and especially its free-expression safeguards."

Net Neutrality Miscellany

Today, the Senate Judiciary Committee held hearings on telecommunications legislation and network neutrality: Reconsidering Our Communications Laws: Ensuring Competition and Innovation. The key issue discussed at the hearings was the question of whether the broadband internet access market is a free, competitive market. However, the hearings did not discuss the issue of whether the broadband internet access available in the US is competitive with the internet access markets in other countries.

Here are some links collected recently:
Network World: Debate: Network neutrality: "The U.S. Senate this week is expected to debate network neutrality. What do you think? Scott Cleland, chairman of NETcompetition.org, which represents telecom and wireless companies and David Isenberg, a fellow at Harvard's Berkman Center for Internet and Society are online this week to discuss, debate and answer your comments."

Susan Crawford: From the telco point of view: "What's all this about 'consumers' and 'content'?  We know that Americans like to post material of their own online.  Almost 50 million of us have already done that, and teenagers have grown up with interactive media -- almost 60% of them have created and shared content online. We're users, not consumers.  You're dimming our expectations -- we don't expect to be able to upload with ease, and we wish we had the same kind of broadband access as South Korea."

The 463 Group: Net Neutrality: What's Next?: "Feel free to disagree, but the betting types we've talked to are guessing that, all near-term Senate machinations aside, nothing gets out of Congress this year and the next Congress will take up the fight along with a host of other big, pending telecom issues (after all, it took many years to get the 1996 Telecom Act passed)."

Ed Felten, Freedom to Tinker: The Last Mile Bottleneck and Net Neutrality: "For a typical home broadband user, the bottleneck for Internet access today is the ‘last mile’ wire or fiber connecting their home to their Internet Service Provider’s (ISP’s) network. This is true today, and I’m going to assume from here on that it will continue to be true in the future. I should admit up front that this assumption could turn out to be wrong — but if it’s right, it has interesting implications for the network neutrality debate."

News.com: Net neutrality: Meet the winner: "As Verizon Communications' executive vice president for public affairs, policy and communications, Tauke has spent the last few months embroiled in a fiery debate over Net neutrality, the concept that broadband providers must be legally required to treat all content equally."

David Isenberg: Welcome to the Stupid Internet: "I looked at "reality." I saw email, and the Web, and eCommerce, and Mapquest, and blogging, and Instant Messaging, and streaming audio on demand, and multiplayer online games, and many other miracles too numerous to list here, miracles that never arrived via "intelligent" networks."

In The Hill, Future of Music Coalition's Jenny Toomey and Michael Bracy discuss why net neutrality is important for musicians: Indie Rock Revolution, Fueled by Net Neutrality: "To understand the importance of net neutrality for artists, look at the lack of a similar principle in modern commercial radio. When informally polled as to why they sign away their copyrights to major labels, most artists explain that they need to be on a major label in order to have a shot at commercial radio airplay. And, sadly, these artists have a point."

Tyler Cowen: Marginal Revolution: Net neutrality, part II: "If the cable and telecom companies had no legally-backed monopoly powers, I would not favor legally enforced net neutrality.  'Let the market decide' would be a good answer."

Michael Madison: Net Neutrality Anecdote: "I started to talk about the net neutrality issue. My wife wanted to know which side the Republicans are on and which side the Democrats are on. No: it’s not a traditional partisan issue. It’s partly the present v. the future, and hierarchy v. distributed control, but it’s also money v. money. Could I explain all that in the 20 minutes that we walked around the block? Not really."

Lawrence Lessig and Robert W. McChesney in the Washington Post: No Tolls on The Internet: "The protections that guaranteed network neutrality have been law since the birth of the Internet -- right up until last year, when the Federal Communications Commission eliminated the rules that kept cable and phone companies from discriminating against content providers. This triggered a wave of announcements from phone company chief executives that they plan to do exactly that."

All Things Considered: Network Neutrality Issue Unites Political Foes: "Once again, the old cliche "politics makes strange bedfellows" is proving itself true: The liberal advocacy group Moveon.org is fighting on the same side as the Christian Coalition. That may be the most headline-catching part of an issue with a notably dull name: Network Neutrality."

NY Times: Editorial: Wi-Fi and the Cities: "No fewer than 300 cities and towns around the nation have taken wireless Internet access, or Wi-Fi, to the people. San Francisco's aim is to make the entire city a hot spot, Chicago plans to blanket the city with access, and large parts of Philadelphia are to go wireless soon. But New York, which should be leading the way, is dragging."

Google Trends: IP disciplines

On Google searches for the 3 intellectual property fields of law, patent law beats out copyright and trademark law. Google Trends: copyright, trademark, patent


Only in Nashville do searches for copyright outpace those for patent. Even in LA, patent generates more Google searches than copyright.

Internet dating and the law

In Slate, Dahlia Lithwick discusses The shadowy laws of Internet dating: "Some legislators and lawyers are clamoring for something to be done about the great abundance of fraud and heartbreak in the world of cyberlove. But really, how would that differ from trying to regulate what happens on the Love Boat?"


At the NYU Comedies of Fair Use conference, Susan Bielstein discussed some of the issues that make it difficult for publishers to obtain copyright clearances: Comedies of Fair Use: The Permissions Maze. Her book, Permissions, A Survival Guide: Blunt Talk about Art as Intellectual Property is now available from the University of Chicago press. Here's the suggested blurb the publisher emailed:

Susan M. Bielstein distills decades of experience as an editor of illustrated books for a guide to navigating the treacherous waters of copyright, Permissions, A Survival Guide: Blunt Talk about Art as Intellectual Property. She gives frank advice on how to determine whether an artwork is copyrighted, how to procure a high-quality reproduction, how to use "fair use" to your advantage, and many other issues. Lawrence Lessig calls it "an extraordinarily compelling account of a system gone mad.

David Pogue relays a story of a permissions problem: a store refused to print digital photographs because the photographs look "too professional": Picture This: Common Sense: "‘She told me that because of copyright concerns, Target reserves the right not to sell any picture that appears to be professional. She said, ‘Anyone can just download any picture they want, and we’d be liable. I’m sorry, we will not sell you the prints.’"

Indecency Update

Congress recently passed the Broadcast Decency Enforcement Act of 2005 (S.193) which will increase the penalties for broadcasting obscene, indecent or profane language. Licensees who broadcast indecent, profane, or obscene language outside of the 10pm-6am safe harbor will be subject to fines of up to $325,000 for each violation or each day of a continuing violation.

The Washington Post reports: The Price for On-Air Indecency Goes Up: "The bill, called the Broadcast Decency Enforcement Act, was passed unanimously by the Senate last month and cleared the House by a vote of 379-35. President Bush has vowed to sign the bill into law; it would allow the Federal Communications Commission to powerfully punish over-the-air broadcasters for airing raunchy content."

During the first quarter of 2006, the FCC received 275,131 indecency/obscenity/profanity complaints, up from the 44,109 received during the fourth quarter of 2005.


Mediaweek reports that CBS is challenging the validity of many of the filed complaints: CBS Stations: Indecency Complaints Invalid : "Virtually none of those who complained to the Federal Communications Commission about the teen drama Without A Trace actually saw the episode in question, CBS affiliates said as they asked the agency to rescind its proposed record indecency fine of $3.3 million. All of the 4,211 e-mailed complaints came from Web sites operated by the Parents Television Council and the American Family Association, the stations said in a filing on Monday."

Finally, the Colbert Report (safely on cable) takes on the indecency regulations: The Word: Great F***ing Idea.

Schwimmer 0wnz0rs Law Blogs

The Trademark Blog : Blawg Review #60: Gimme Some Truth: "This is an opportunity for the blawgosphere to assume a leadership position. It can be more than a compendium of firm brochures. Practitioner blogs can provide cool-headed legal analysis of issues such as the Niger Documents, Plame Affair, Torture Memos, NSA issues and Signing Statements, to a broader audience than the prof blogs can reach."

Best. Blawg Review. Ever.

Cable Bill Phone Spam

I just received an automated phone call on my home phone with a recorded message telling me that if I am concerned about the high price of cable television to press 1. Pressing 1 would tell Congress to act now on the vote this week to allow competition in the cable market. If I pressed 2, that would indicate that I do not care about cable prices.

I dialed 0, hoping to find out more information about who sponsored this call and to learn more about the issue. The recording thanked me for my vote and hung up.

Who is responsible? Most likely the phone company, seeking the ability to provide cable television (and exploiting an existing customer relationship.)

Aha. Here are a couple of articles from the National Journal's Telecom Update. Heather Greenfield, As Telecom Bill Debate Heats Up, Firms Spending Big On Advertising: "Telecommunications companies are spending serious green on advertising in recent weeks to alert members of Congress and their staff to what they call a serious cause -- a grassroots campaign for lower cable and broadband rates."

Drew Clark, McCain 'A La Carte' Bill Remains A No-Show: "Sen. John McCain, R-Ariz., failed to introduce legislation that would allow the former regional Bell operating companies to provide cable television service nationally if they offered consumers the option to purchase channels individually -- despite earlier indications that he would do so this week."