Friday, October 28, 2005

Still Safe to Smell of Strawberry

I think it's good that a French company failed to trademark the smell of fresh strawberries. I found the argument surrounding this decision a little odd, though:
The company argued that while strawberries may look and taste different, they all smell the same, and as a result could be trademarked.

The [European Union] court took a different view, and smell experts found that instead of just one aroma, strawberries can in fact have up to five different, distinct scents.
Oh, well, that's a relief. Also, I am glad that there are "smell experts" out there somewhere who are being utilized. I get enough flak as it is for aiming to be a "comics and video games expert," but some day we'll come in useful too.

Wednesday, October 26, 2005

Copyright office restarts DMCA rulemaking

Every 3 years, the Copyright Office, headed by Marybeth Peters, conducts a rulemaking to determine exemptions to 17 U.S.C Sec 1201(a)(1), which prohibits the circumvention of access-controlling technological protection measures (TPMs).

Most commentators believe that TPMs, aka Digital Rights Management (DRM), reduce the general public's ability to make otherwise noninfringing uses (e.g., fair use, as encoded at 17 U.S.C. Sec. 107) by leaving it up to content creators to set the terms of access and use.

Despite this widespread criticism, Peters has constructed the Office's powers in this matter so narrowly as to be utterly ineffectual.

For instance, she ruled in 2003 that, to make fair use of a DVD, instead of using your computer alone (which would still be quite difficult), you also have to buy a standalone DVD player and an analog-to-digital converter that does not recognize Macrovision.

Which converters allow you to import video despite the Macrovision flag? It's hard to say, since Section 1201 makes it illegal to manufacture devices exclusively for that purpose or to advertise any otherwise legitimate device's capability to do so.

Why do you have to pay hundreds extra to exercise your free speech rights? Because Jack Valenti's pals want to make more money.

If you think this blog post is long, wait til you see the forthcoming law review article documenting the stomach-churning policy developments that got us here.

In any case, feel free to submit your horror stories about how TPMs keep you from engaging in otherwise lawful uses. Please do; it makes the push for reform so much more powerful! But expect to be disappointed by Peters' ruling in the end.

Tuesday, October 25, 2005

Now open for biz: Legal P2P

ZDNet has a story declaring that iMesh is open for business. Here's the part where it becomes patently obvious that it's not exactly a red-carpet, world-premiere-sized start to the legal P2P biz. Go to the site; I think they do too little to convince people that there's some there there. Also, even their forums express some disbelief that this is the solution to the ongoing copyright war.

I'd love to install the software and play, but the last thing I need is another way to waste time online (he types on his blog).

Monday, October 24, 2005

Global satellite broadband? Not holding my breath

Now this is a high-tech way around your local cable/DSL broadband monopoly. Alas, the best they can do is 512 Kbps. Scheduled to roll out next year; I wish them well but suspect it will be another solution that is out of most budgets.

Props to Media Tank for the link; their news list rocks.

Telecom giants seeking to redline the poor

Few companies are better at making me violently angry than Verizon; little wonder, then, that they're joining SBC in lobbying for the right to exclude poor, largely minority communities from the digital millennium.

The telecom giants are lobbying for the right to roll out advanced digital TV and broadband services only in the most upscale of zip codes. This is in stark contrast to the decades-long policy tradition of universal telecommunications services.

Shame on both companies, and props to the late Delores Tucker for a thought-provoking article.

Thursday, October 20, 2005

"Format Wars" a Losing Battle

There's been a lot of hubbub in the video game industry regarding what DVD format the next-generation systems will be using—HD DVD or Blu-Ray, either of which should have significantly increased capacity over the current DVD format. This doesn't just affect home gaming consoles, of course, as the success of one format over another could determine what next year's DVD players can run. (Think VHS vs. Beta, and feel free to check out this PC World article for a basic rundown of the issues here.) I'm getting the impression that copy protection capabilities is one of the major concerns being batted around by game industry execs in settling on a format.

Imagine my surprise, then, when Bill Gates announces that this particular format war is yesterday's news; the future is in digital distribution. Ah, that's right—I had forgotten all the talk of Microsoft's sneaky plans to distribute games directly into Xbox consoles connected to the internet, bypassing retailers completely. Perhaps the hope is that this will discourage piracy, as many Xbox users probably aren't aware of how easy it is to "soft mod" their consoles so that games downloaded onto PCs can be stored on the Xbox hard drive.

Monday, October 17, 2005

a reminder why we do this

It is always good to remind ourselves from time to time why we do the things we do. Why we get angry about issues of copyright, why censorship is problematic, etc. Why we care about, what this website calls 'a healthy information ecosystem."

As a response to Jimbo Wales' (founder of Wikipedia) ten things that will be free, Charles Nesson (founder of the Berkman Center) writes - and, pardon me but, could language be more beautiful?

"More people come to see that yes, we are in new reality. Core insight about the structure of the net come clear. We can connect with whom we want, if only they want to connect with us. We can build structures in the net out of software that make connection productive and fun. People who like to connect like to share. People who like to share like to trust. The net provides us ways of doing this, ways that are interesting and powerful. In the battle of good and evil rhetoric strucures the game. It plays like poker, with rhetorical chips, stacked in story strength.

The force is that will draw us forward toward the expressions of free culture Jimbo describes is evolution determined by the architecture of cyberspace. In an environment that facilitates sharing, those who learn to do it well will have competitive advantage. We are building self-sustaining software structures that facilitate aggregation of shared value. We can build more, with near boundless aspiration."

Those who like to connect like to share. Those who like to share like to trust. Principal foundations of a healthy information ecosystem.

Saturday, October 15, 2005

The hidden cost of documentaries: copyright clearances

They're hardly the first folks to cover it, but the Times explains that the cost of clearing copyright fees is a huge drag on documentary production. Considering the constitutional mandate to promote the progress of the useful arts and sciences, it is tragically ironic that copyright law keeps many doc's from getting produced and drains the life out of others.

For more on this, see the Untold Stories website, featuring a very thoughtful analysis (and, yes, a documentary) by Pat Aufderheide and Peter Jaszi.

Wednesday, October 12, 2005

Disaster Relief and the Media

The Washington Post reports that donations for relief have come in slowly in the wake of a devastating earthquake in Pakistan. According to this article, the death toll in Pakistan is currently at 30,000; according to an article in the Philadelphia Inquirer, millions are left homeless. Pakistan's government simply isn't equipped to handle this alone. According to the Washington Post, donations may be coming in so much slower simply because people are feeling overwhelmed by disasters:
After donating about $1.3 billion to help the victims of the devastating Southeast Asia tsunami and then contributing $1.7 billion to support relief efforts after Hurricane Katrina, many donors appear to be running out of steam....

For example, online donations to the international relief group CARE's South Asia earthquake fund are 10 percent of what they were at the same point after the tsunami, a spokesman said.

The American Red Cross also said the pace of giving for earthquake relief is far slower then it was after Katrina or the tsunami. Tens of millions of dollars poured in within a week of the earlier disasters, said spokeswoman Carrie Martin. But so far, the Red Cross has collected only $45,000 for South Asia quake victims.

Agencies and charity researchers say "donor fatigue" might be part of the problem. The third major disaster within a year simply is not registering with Americans as strongly as did the previous two.

Aid groups say they believe Americans have not lost empathy for the victims of new natural misfortunes.
I'd like to propose another theory: a drop in disaster coverage and attention.

The story of the tsunami was in the news for days, a virtually unprecedented disaster that demanded attention. Katrina is still in the news, as people try to figure out just what went wrong and what needs to change. The earthquake made it to the front page of Monday's Philadelphia Inquirer; today, I had to hunt around on their site to find an update. Are natural disasters now old news?

Moreover, attention to Katrina expanded well beyond the regular news media. I had planned to donate from the beginning, but I didn't actually do it until it was so easy that I couldn't help but notice—the front page of had replaced my normal recommendations and ads with a link to donate to the Red Cross online. I had just gone in to buy an electric shaver, and suddenly I was reminded to donate and help people. Not that Amazon doesn't have a right to protect its own business interests, but it kind of disappointed me when I logged in today and all I found was a recommendation to pick up replacement foils for the shaver.

I'm sure there must be a variety of reasons why aid is coming in more slowly now, but if a lack of public reminders is one of them, please let this count as a reminder for you.

Tuesday, October 11, 2005

RealNetworks collaborates with Microsoft

This just in from the New York Times.

And the power of the oligopoly further frustrates anti-trust efforts.

Saturday, October 08, 2005

Google Hires Lobbyist

Google reports via its official blog that it's hiring a lobbyist to help influence policy in such areas as "net neutrality," "copyrights and fair use," and "intermediary liability."

I have to hope this will be a good thing for most internet users, and people working with digital media in general. While I realize that Google has to pick its battles carefully, however, I have to admit that I'm a bit dubious about their proposed support for the Grokster decision (click here for commentary by Bill and relevant links), which they contrast from legal questions applied to their own products.

Friday, October 07, 2005

Game Console Modding Now Legal in Australia

BBC reports that Sony has just lost a four-year legal battle with a mod chip supplier, meaning that it's legal for Australians to install such chips in the Sony PlayStation 2—and, presumably, this could set a precedent for modding other consoles, such as the Xbox.

Game consoles like the PS2 can be "modded" by installing a chip that enables users to bypass such "features" as copy protection and regional controls. This means that Australians can now legally modify their systems to play much cheaper games sold in other countries—which is great, really, seeing as how games in Australia seem to be ludicrously overpriced.This doesn't make it legal to play pirated games, of course, but it certainly makes it easier.

The U.S. is not yet similarly enlightened.

Thursday, October 06, 2005

Disappointingly hackneyed article on CNet

Normally, CNet's is the source for wonderful tech and tech law news. I link to them all the time. This time, however, I'm publicly dissing them, there and here.

Read this article by Progress and Freedom Foundation VP Patrick Ross. His journalistic credentials are actually quite sound, but his reasoning is not.

Next, flip to Comment #4. I wrote a rather lengthy rebuke, and that's the tip of the iceberg of very strong opinions I hold on this issue. I also challenged Ross to a debate. Are you reading this, Patrick? Because I'm serious. Let's go. I'll arrange everything; you just show up.

Audio format wars harm consumers

Here's yet another reason to support blanket licensing: format wars. Apple uses AAC at the iTunes store; most others use Secure WMA. Neither is playable on music players (ahem--MP3 players) designed to play the other.

The Times actually a) covers this issue, and b) offers some useful tips to the uninitiated.

Support blanket licensing. Apple's unique power is that it was the first company to get all the big labels to sign on the dotted line. If they can't withold that right, consumers will be downloading in MP3--or even some lossless compression format, e.g. FLAC--before long.

Indy video producers eye online distribution

Quick link to a Times story about how independent video producers are already starting to use the internet to escape the need to work with major distributors. Early adopters include Blair Witch co-director Dan Myrick with his serial, "The Strand of Venice".

Tuesday, October 04, 2005

More musicians: How to hack our CDs

In what I believe is a first, I have scooped CNN on a story. ("You hear about this kind of thing all the time, but you never think it will happen to you...")

Two weeks ago, I posted a story about how the Christian band Switchfoot was teaching people how to hack their CDs. Tonight, a colleague emailed me a story from CNN (via Billboard), pointing out that Switchfoot is among several bands teaching people how to hack their CDs. Others include the Dave Matthews Band and Foo Fighters. How many more musicians are concerned that the labels are keeping paying customers from enjoying their music?

As if that weren't rich enough, Sony BMG will also email the directions to you. Just fill out this form, and in less than 30 minutes, you can have your CD on your iPod. The short version is:
Import the tracks as "secure" WMA files
Burn to a standard audio CD using Window Media PLayer 9 or 10
Reimport the songs using iTunes
The fun part, though, is when the label tries to convince me that posting this on my blog is illegal:
This message and any attachments are solely for the use of intended recipients. They may contain privileged and/or confidential information. If you are not the intended recipient, you are hereby notified that you received this email in error, and that any review, dissemination, distribution or copying of this email and any attachment is strictly prohibited. If you receive this email in error please contact the sender and delete the message and any attachments associated therewith from your computer. Your cooperation in this matter is appreciated.
But they're not fooling me. I may be one of a handful of non-lawyers who almost understands 17 USC 1201. I'm offering no "technology, product, service, device, component, or part thereof." It's just unpaid commentary. In perhaps an even more ironic twist, Sony BMG is perhaps more liable than I would be under this law. At the media industry's behest, there is no fair use defense to Section 1201. By my reading, Sony BMG would, by the letter of the law, be as guilty as you or I if they started shipping BeatOurLameTech.exe files designed to undo their copy control technologies.

In the matter at hand, I think that neither Sony nor I is liable for giving such simple instructions for using tech you already have. But if I'm liable, they're more so; I'm exercising my "rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products," whereas their email form is used primarily for the purpose of helping you to defeat their wack copy controls.

RIAA Pushes, Defendant Pushes Back

The Video Game Law Blog links to a P2Pnet story about a single mother sued by the RIAA who decided to sue right back. Check out the P2Pnet article for the full story, which is summarized neatly by the Video Game Law Blog:
The interesting part of this story is that the mother filed a lawsuit in response. And she’s not shy: she’s suing for RICO [Racketeering Influenced and Corrupt Organization] violations, fraud, invasion of privacy, abuse of process, electronic trespass, violation of the Computer Fraud and Abuse Act, negligent misrepresentation, deceptive business practices and—we like this one—the tort of “outrage”. We’d never heard of that one before.
Looking forward to seeing how this pans out.

The Future of New Orleans

I'm not much of a conspiracy theorist, but this piece from The Nation does raise some pretty interesting questions about New Orleans. (Link via Slacktivist.)

The Nation piece is primarily concerned with the creeping suspicion that some people might have had quite a lot to gain from flooding poor people out of the city—but it's early yet this morning, and my cynicism takes a few more hours to kick in. Even if you disregard the question of deliberate, evil intent, however, the list provided in that piece does note several questions that would be relevant to (but have been ignored by) mainstream news media. Two questions particularly stood out to me:
23. Why isn't FEMA scrambling to create a central registry of everyone evacuated from the greater New Orleans region? Will evacuees receive absentee ballots and be allowed to vote in the crucial February municipal elections that will partly decide the fate of the city?

24. As politicians talk about "disaster czars" and elite-appointed reconstruction commissions, and as architects and developers advance utopian designs for an ethnically cleansed "new urbanism" in New Orleans, where is any plan for the substantive participation of the city's ordinary citizens in their own future?
Please feel free to post a comment if you've seen media coverage that addresses these issues. So far I haven't caught anything about them on

Monday, October 03, 2005

Google sued

The Authors' Guild has sued Google over its massive book-scan, part of the larger project known as Google Print.

I don't have the time to write my own analysis on this issue, but let me revoke my previous non-vote and say that Google is engaged in fair use. Among others, Peter Suber and William Patry have provided very persuasive arguments to this effect. Suber rightly suggests that the AG may merely be engaged in a shakedown for a share of the profits. (Hey, it's worked for those whose songs have been sampled by hip hop and electronica artists.) Even though the copyright holders will clearly benefit from Google's clearly fair use (just like hip hop sampling revived the sales of countless old songs), they want their cut, and they have lawyers.

Check the links, esp. AG (which is like the Google Suit news channel) and Patry (who disses the four-factor fair use test in style).