now with more cowbell
i'm not dead (yet)
Posted: 2003-07-17 04:34
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Author: Phil Gengler
Section: Stuff

Firstly, sincere apologies for the unusually long time since my last post. My excuse for this one is that I took last week as a vacation week, which I spent at home, and accomplished absolutely nothing during. As a consequence, it's going to be a little light, since most of what's happened has already happened and been discussed in a large number of other places.

The first thing that jumps to mind is a new paper from Rachna Dhamija and Fredrik Wallenberg at Berkeley, entitled A Framework for Evaluating Digital Rights Management Proposals, in which they discuss various DRM systems and compulsory licensing, their strengths, weaknesses, impact on users and privacy, and feasibility. Having only skimmed the paper myself as of this writing, I can't really say anything substantial about it, but it looks like it covers many facets of current and proposed DRM systems. The accompanying Slashdot discussion has some commentary on it, for those who can find the few worthwhile posts in the mess of a Slashdot story.

Way back on the 7th, the 9th Circuit Court of Appeals issued it's decision in the case of Kelly vs. Arriba. The case was brought about by photographer Leslie Kelly against Arriba Soft (who runs the search engine) because, which has an images search, was displaying thumbnail images of full-size photographs from Kelly's site. The decision upheld part of an earlier ruling that the creation and display of thumbnails is fair use under the law, and abandoned part of the prior ruling which related to linking to the full-size images.

It's certainly refreshing to see that the courts still consider fair use, especially at a time when major IP owners are seeking to control and constrict a user's fair use rights at every possible turn. Back on the 4th, InfoWorld covered the Supreme Court's refusal to hear arguments in a reverse engineering case. This case, Bowers v. Baystate Technologies, was brought about by programmer Harold Bowers, who wrote a CAD program, with a EULA prohibiting reverse engineering of the software. Baystate Technologies allegedly borrowed interface elements from Bowers' program, and was sued for reverse engineering in violation of the license. The Supreme Court's decision not to hear the case means the appeal's court decision, that Baystate was in violation of the license in it's reverse engineering, stands.

The decision in this case has far-reaching consequences for all sorts of works, not just computer software. Firstly, it allows an implicit contract to be binding, and allow a user to 'click away' certain legal rights. This is predicted to pave the way for more restrictive license agreements in the future, and a precedent of upholding these 'contracts' (I use the term loosely, as whether a EULA carries the full weight of a contract is a matter of much debate). What I haven't seen mentioned in relation to this case is it's potential for the entertainment industry to distribute all their works with licenses prohibiting reverse engineering. Some of those in the entertainment industry have hinted that including similar agreements with music and movies is a possibility, and there are those who already feel that purchasing a CD or a DVD is merely purchasing some license to that medium, with a set of restrictions above and beyond those current codified.

In the weeks since the FCC's vote to lessen ownership limits on television and newspapers, the fight has not ended. The Democractic FCC commissioners, Michael Copps and Jonathan Adelstein, have sought a vote that would provide a temporary stay from the new rules taking effect. Adelstein is claiming to have found a 'blunder' in the new rules, which could alter the way public television stations are counted in smaller communities, allowing for more consolidation in those areas. This comes even as the House Appropriations Committee approved a measure (attached to a new spending bill) that would prevent most of the changes from taking effect. The House measure would affect the change in television ownership rules, but wouldn't change the new rule on ownership of a television station and a newspaper in the same area.

Over at C|Net, Declan McCullagh is reporting on the pending trade agreement between the US and Chile. This agreement contains provisions very similar to the DMCA, and would force Chile to abide by these restrictions on the use of copyright works. President Bush is pushing for Congress to approve the deal, which contains far more than just the DMCA-like provisions. Nevertheless, seeing the DMCA being effectively forced on other nations (as it was with Singapore, through a free-trade agreement made in May of this year) in disheartening, to say the least.

Trade agreements between the US and other countries aren't the only way that DMCA-like laws are coming into other nations. The European Union Copyright Directive is quite similar to the DMCA, except that some of the restrictions it creates are even worse than those of the DMCA (which is quite hard to accomplish, I would think). The EUCD, however, isn't binding law unless adopted by a certain percentage of member countries; unfortunately, this is starting to happen. Germany is the latest one to follow this, as the upper house of it's Parliament has implicitly consented to the law, already approved by the lower house. Germany now joins Austria, Denmark, Greece and Italy as the five European nations to have adopted law based off of the EUCD.

Moving along, access to the Internet may remain tax-free, if a measure approved by the House Judiciary Committee passes both houses of Congress. The measure would extend a 1998 moratorium on Internet access taxes which is set to expire on the first of November this year.

Having almost missed the boat here, presidential candidate and former Vermont governor Howard Dean is guest-blogging this week at Larry Lessig's blog. His postings have sparked a large number of comments on the blog, the more popular of which Dean recently took the time to answer. With discussions ranging from Dean's position on the Patriot Act ("I have real problems authorizing the FBI to obtain library and bookstore and video store records simply by claiming the information is 'sought for' an investigation against international terrorism. It's also clearly unconstitutional to detain individuals and deny them access to a lawyer.") to his position on the DMCA and copyright law (he doesn't have one at present, he's working one), Dean has covered some of the issues that matter to the people reading Lessig's blog. One of Dean's earlier postings laid out his position on the FCC deregulation, and how he disapproves of their decision. This position generated a lot of thanks and appreciation from posters, many of whom believe (as I do) that allowing a few large corporations control of the media is not the way to go.

As is quite common with large gaps in updates, much of what has transpired since my last update is either lost from memory or covered to death in other places. Hopefully (but I'm not making any promises, since I never seem to be able to live up to them) updates should be more frequent, and more specialized, without me degenerating into an old link propagator. In the space between updates, though, I still try and keep the 'daily links' section stocked with content, so you'll at least have something to look at. I leave you now with a Kuro5hin story which raises doubts as to the copyright status of the song 'Happy Birthday'. I'm hoping the link is good, as the K5 server is out of commission at the moment.


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