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Celery, Comic Books and James Joyce
At a symposium entitled [Copyright at a Crossroads: The Impact of Mass Digitization on Copyright and Higher Education](http://www.umuc.edu/cip/symposium/) at the University of Maryland last week, the highlight was when a lawyer wielded a large knife and hacked away at celery to explain copyright. Attorney [John Mitchell](http://interactionlaw.com/id2.html) divided the celery, representing the bundle of rights that accompany a creative work, into two bowls. A small bowl represented the copyright holder's rights and a large bowl represented the rights of the content user. A problem happens when copyright holders use [DRM](http://en.wikipedia.org/wiki/Digital_Rights_Management) to control the celery in the large bowl, because copyright holders can exploit DRM to control content users beyond the intended limitations of copyright law. The panel concluded with the presentation of survey results, finding that those in higher education are worried that DRM has the potential to deny [fair use](http://www.publicknowledge.org/node/467), bypass the spirit and limitations of copyright law and protect copyrights in perpetuity because access controls will remain even after a work enters the public domain. But DRM isn't the only way that copyright holders are trying to monopolize control and grab more celery from the large bowl. Copyright holders have had success controlling their content with threats of infringement litigation and demands for huge licensing fees. [Today's Wired](http://www.wired.com/news/culture/0,71157-0.html?tw=wn_culture_4) has an interview with the authors of ["Bound By Law? Tales from the Public Domain,"](http://www.law.duke.edu/cspd/comics/) a comic book for filmmakers explaining the issues they encounter with copyright law, including fair use. Professor James Boyle gives a good explanation for how fair use is diminished when filmmakers meet demands for licensing fees because it creates a market for that work. The comic is available online and worth reading even if you aren't a filmmaker. It gives a lot of good examples of copyright pitfalls that documentarians have encountered, such as the fees EMI demanded when a Rocky ringtone appeared in [Mad Hot Ballroom](http://www.nytimes.com/2005/10/16/movies/16rams.html?ex=1287115200&en=3d97bf1c582fee40&ei=5088&partner=rssnyt&emc=rss). The [New Yorker](http://www.newyorker.com/fact/content/articles/060619fa_fact) and the [Associated Press](http://www.washingtonpost.com/wp-dyn/content/article/2006/06/12/AR2006061201342.html) have reported that Stanford English professor Carol Shloss has filed suit against the estate of James Joyce for denying Shloss permission to use Joyce's work. D.T. Max of the New Yorker tells of the many ways that Stephen Joyce regularly denies permission to scholars or uses litigation to maintain his control over the image and work of James Joyce. Max explains, > "Stephen's primary motive has been to put a halt to work that, in his view, either violates his family's privacy or exceeds the bounds of reputable scholarship. The two-decade-long effort has also been an exercise in power--an attempt to establish his own centrality in regard to anything involving his grandfather." These issues are related because they are about copyright holders gaining more control and content users losing access to work, even when the use could be a fair use. The New Yorker explains a quintessential problem with fair use and the consequences: > "'fair use' has proved extremely hard to define. How many words can be quoted? From how many works? What about unpublished texts?... As a result, Joyceans are often unsure if they are violating the law, and when the estate objects they usually give in." If copyright holders are allowed to use DRM schemes or threats of infringement litigation and licensing fees to tightly control legitimate fair use beyond the intentions of copyright law and its exceptions, then the content users will end up with a lot less celery in their bowls. With less celery in their bowls, artists, scholars, journalists, filmmakers, etc. will have less ability to comment on our culture.
Get Your Net Neutrality Definitions Here!
Follow @artbrodskySo you say you are a Senator and don't know what Net Neutrality means? You say you are looking around for a good definition? Have I got a definition for you! In fact, for a limited time only, I've got a couple of prime definitions, all right here in this handy-dandy draft bill circulated by the Senate Commerce Committee. All you have to do is pick one or combine them to make your own - customization at its best. We realize this isn't as easy as having one handed to you, like industry does when they want something, but at least this way you can claim authorship and legislative craftsmanship over the product. The concept is pretty simple - don't let the telephone and cable companies play favorites on the Internet. But if you want some specific language, let's go to the PDF. Start with Section 253. It deals with universal service, but the concept is the same. Only here, you call it "competitive neutrality." >"(7) COMPETITIVE NEUTRALITY.--Universal service support mechanisms and rules should be competitively neutral. In this context, competitively neutral means that universal service support mechanisms and rules neither unfairly advantage nor disadvantage one provider over another, and neither unfairly favor nor disfavor one technology over another." That seems fairly straightforward. It shouldn't be difficult to take the government policy on telephone and cable companies applying for universal service support and apply it to a government policy on telephone and cable companies offering service on the Internet. Here's another example, from Sec. 502, from the Municipal Broadband section: >''(1) ANTIDISCRIMINATION.--To the extent any public provider regulates competing providers of advanced telecommunications capability or any service that utilizes the advanced telecommunications capability provided by such providers, the public provider shall apply its ordinances, rules, policies, and fees, including those relating to the public rights-of-way, permitting, performance bonding, and reporting, without discrimination in favor of itself or any other advanced telecommunications capability provider that such public provider owns or is affiliated with, as compared to other providers of such capability or services." It shouldn't be difficult to take the government policy on protecting telephone and cable companies in municipal broadband and applying it to a government policy on telephone and cable companies offering service on the Internet. If those are not to your liking, then let's try Sec. 628, which deals with access to programming for shared facilities. >''(a) IN GENERAL.--A video service programming vendor in which a video service provider has an attributable interest may not deny a video service provider with a franchise under this title access to video programming solely because that video service provider uses a headend for its video service system that is also used, under a shared ownership or leasing agreement, as the headend for another video service system." This one is even better, because it gets into the whole concept of a service provider having a financial interest in a service that goes out on its network. That's one of the things we think is likely when the telephone and cable companies can discriminate about what goes online. This section has some nice language on anti-discrimination which could be adapted into a Net Neutrality definition It shouldn't be difficult to take a government policy on telephone and cable companies having a financial interest in their cable programming and apply it to a government policy on telephone and cable companies having a financial interest in what they put on the Internet (private or public version). For good measure, you can look in the program-access section and in the redlining section for suggestions on resolving any Net Neutrality complaints. The idea of Net Neutrality isn't new. It's been around since the telephone network came under the Communications Act. Even in the context of this bill, the idea of applying neutrality principles are well accepted when applied to telephone and to cable companies. There should be no reason why the same principles shouldn't apply to the companies when they offer Internet services.
Congress: Hunting for patent trolls?
Congressmen including Lamar Smith (R-TX) and Howard Berman (D-CA) were among the Representatives who used a hearing yesterday as a chance to take rhetorical swipes at patent trolls. The hearing, held by the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property, was called, ["Patent Trolls: Fact or Fiction?"](http://judiciary.house.gov/oversight.aspx?ID=245) A [patent troll](http://en.wikipedia.org/wiki/Patent_troll) is a person or small company that traffics primarily or exclusively in the threat of patent litigation. The company will either register or purchase patents with no intention of developing products using the patented technologies or techniques. Rather, they will go seeking people whom they can credibly accuse of infringement. Trolls will seek licensing fees that [exceed the market rate but fall short of the would-be defendant's legal expenses](http://www.usebrinks.com/docs/publications/106.pdf) (pdf). Failing that, they are willing and able to go to court. The bill at issue is [H.R. 2795](http://www.publicknowledge.org/issues/hr2795), "The Patent Reform Act of 2005."
What's Fair Use? Consult the Fair Use Network
"*Do I have to ask permission to copy this?*" "*May I copy this song and give it to all my friends?*" "*Is it a copyright violation if...*" These are all questions that we in the copyright field are asked the time. Fortunately, the [Free Expression Policy Project](http://fepproject.org/) has set up an amazing resource to explain fair use. It's called the [Fair Use Network](http://fairusenetwork.org/): "*Information & Resources for Free Expression*." It's a great resource, so go check it out, now!
Broadcast Flag Hypocrisy and the Stevens Bill
Follow @haroldfeldThere's a reason I never get asked to testify on the Hill, and why I'm glad we have folks like Gigi Sohn (of PK) and Ben Scott (of Free Press) to do it instead. I have a very low tolerance for the hypocrisy one encounters when testifying. Case in point, this past week's Senate Commerce Committee hearing on network neutrality. Ben Scott provides an eloquent defense of the principle. This prompts the usual from folks like DeMint, Sunnunu and Stevens on "The heavy hand of regulation destroys investment and innovation, the internet has never been regulated" blah blah. At this point, if I were in Ben's chair, I would say "Than why do you have a broadcast flag in this bill, you flaming hypocrites?" Consider the broadcast flag. It is harder to find a more intrusive or less desired piece of regulation (from the standpoint of the user and the equipment manufacturer at least). It requires equipment manufacturers to build in controls that allow third parties to override user preferences and control legal uses of recorded video and audio. Excuse me? I thought you just said you hated big government and intrusive regulation? Shouldn't "the market" fix whatever problem actually exists? Also, unlike net neutrality, broadcast flag actively discourages innovation and investment. Indeed, **the entire point** of broadcast flag is to make innovations that upset established business models and promote competition impossible, or at least incredibly difficult, without the express permission of the dominant incumbents. To make the hypocrisy worse, broadcast flag constitutes an outrageous extension of government regulation to products and businesses that have never been regulated like this before. To the contrary, the D.C. Circuit found last year that the FCC could not impose a broadcast flag because the law had never intended to give the FCC power to regulate consumer devices in this fashion. By contrast, network neutrality has been the law for more than 30 years, and remains the law until August 2006 (when the old rules phase out). So who wants to expand federal power, to the detriment of inventors, innovators, investors, and -- oh yeah -- us regular folks? The supporters of broadcast flag. But, at the very same hearing Senators give Ben a hard time about "wanting to impose stifling heavy handed regulation," these same defenders of the free market and stalwart champions against "big government" on net neutrality turn around to sing the praises of broadcast flag. Worse, broadcast flag basically constitutes a new national sales tax on consumer devices for the benefit of Hollywood and the record industry. Broadcast flag drives up the cost of design and production of devices while crippling their utility. Guess who pays the extra cost necessary to keep us safe from 'piracy?' People who buy the devices. So, according to Senator Stevens at least, while an estate tax on the wealthiest Americans is bad a sales tax on the average consumer is good -- provided the added tax revenues only benefit big companies. Had I been there and said this, I expect I would have gotten an earful about how this is a special case because we need broadcast flag to protect Hollywood and the record industry from theft, encourage them to put new content out on the market, and don't I care about protecting people's rights? "Absolutely," I reply. "Lets start by mandating network neutrality to protect **my** right as a content creator and encourage me to put new content and services out on the internet." I want all the "content creators" on YouTube or the bloggers or anyone else to enjoy the right to access my material and for me to get the value I deserve of people seeing it. Lord knows "the market" (in the form of the cable/telco duopoly) won't protect that right on its own. So why won't Stevens, et al. do for me what they do for the MPAA and RIAA, i.e., protect me by regulation because the "free market" won't. Not that I support broadcast flag "in exchange for" network neutrality mind. I think broadcast flag is wretched in its own right. Unlike net neutrality, broadcast flag stomps free speech and promotes monopoly control of content at the expense of users and innovators (the current internet demonstrates that the same charges against network neutrality are, to use a technical legal term from Judge Edwards' recent dissent in the CALEA case, "gobbledygook") But when someone can tell me in the same breath they hate big government but love broadcast flag, I sniff for the tell-tale signs of hashish. If I don't smell it, I know I'm dealing with the ripe stench of hypocrisy, usually leavened with a bit of PAC money. Happily for us all, Ben Scott didn't say any of that. Instead, he gave an eloquent defense of the principles of network neutrality without calling the Senators in question miserable hypocrites. But that's why they invite him up there instead of me.
Riya 2.0 Aids Search for Orphan Works
I was reading today on [Tech Crunch](http://www.techcrunch.com) and [it's report](http://www.techcrunch.com/2006/06/15/riya-20-on-the-way-major-strategy-shift/) about the the next version of [riya](http://www.riya.com). For those of you who've never heard of riya, think of it as [flickr](http://www.flickr.com) with facial and image recognition. It's pretty sweet (and a little scary), and you can learn more about how it all works straight from the horse's mouth [here](http://www.riya.com/learnMore). Anyhow, [Michael Arrington](http://www.techcrunch.com/about-techcrunch/) said...
preservesthe openness of the Internet and the public's access to knowledge, promotes creativity through balanced copyright, and upholds and protects the rights of consumers to use innovative technology lawfully.
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