News and Commentary about Law, Technology, and their Intersection.
* A New Look For The Newsletter
I’m experimenting with a new format for the LawLawLaw newsletter. Past editions have featured about a dozen short stories about law, technology, and their intersection. In this edition, I am focusing more on the patterns in these stories than on the stories themselves. Where is technology heading? Where is the law heading? What will happen when they intersect? And I’ll publish LawLawLaw as one piece instead of publishing each story individually.
As usual, I’ve sent this issue out by email and then published it on my weblog. I’ll continue to repost published articles on my weblog and periodically post other stories there when it would make more sense then waiting for the next edition of LawLawLaw. Since the last LawLawLaw newsletter (05/17/04), there have been many interesting stories. Here’s my spin on the most interesting, important, and incredible.
* 2004 is 1984
We are only about a decade into the Internet revolution and we are clearly living in the Dark Ages of the Internet. Never before have so many bad laws been drafted to benefit so few to the detriment of so many. Bad bills have the potential to become bad laws, but good bills have the potential to become good laws. Here are some of the notable bills and laws.
- Bad Copyright Law: 1998 Sonny Bonno Copyright Term Extension Act (CTEA), Pub. L. No. 105-298, 112 Stat. 2627 (Oct. 27, 1998).
(http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=105_cong_public_laws&docid=f:publ298.105)
(http://www.copyright.gov/title17/92chap3.html) - Bad Copyright Law: 1998 Digital Millennium Copyright Act (DMCA), Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998).
(http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=105_cong_public_laws&docid=f:publ304.105) - Bad Copyright Bill: Protecting Intellectual Rights Against Theft and Expropriation Act of 2004 (“PIRATE Act”), S. 2237, 108th Cong., 2d Sess. (2004).
(http://thomas.loc.gov/cgi-bin/query/z?c108:s2237:) - Bad Copyright Bill: Inducing Infringement of Copyrights Act of 2004 (“Induce Act”), S. 2560, 108th Cong., 2d Sess. (2004).
(http://thomas.loc.gov/cgi-bin/query/z?c108:S.2560:) - Good Copyright Bill: Digital Media Consumers’ Rights Act of 2003 (DMCRA), H.R. 107, 108th Cong., 1st Sess. (2003).
(http://www.house.gov/boucher/docs/dmcrahandout.htm)
(http://thomas.loc.gov/cgi-bin/query/z?c108:H.R.107:IH) - Good Copyright Law: US Copyright Act, Fair Use provision, 17 U.S.C. Sec. 107.
(http://www.copyright.gov/title17/92chap1.html#107)
Much of the coverage in the press (and in weblogs) about these laws has focused on just how bad the bad laws are and just how potentially bad the bad bills are. Bad, DMCA, bad. When you read the news (including the reactions and overreactions) every day, it’s sometimes difficult to see some of the patterns. But it’s clear that corporations still don’t understand how to leverage the Internet’s greatest asset — ease of copying — to their advantage. Instead, they focus on trying to control the uncontrollable. And so we have the RIAA suing grandmothers and single mothers. Record labels foisting DRM-encumbered (or DRM-protected, pick your politics) CDs on consumers. Microsoft preventing a key patch to its buggy software from being efficiently delivered via P2P networks. Movie studios suing a DVD software company out of business.
It is this unique combination of bad laws and short-sighted business practices that makes this the Dark Ages of the Internet. Someday we will look back on these times and wonder just how people could collectively be so stupid. Big companies and big governments have the resources to fight these battles. Small companies and individual consumers do not — and, as such, are frequently on the losing end of the battles. Even this small business owner has taken true (but controversial) content off of the LawLawLaw website. Twice in the last quarter. I don’t have the resources to fight, even if I am right on the law. Being right on the law only helps you if you can afford to defend those rights in court. As much as I enjoy writing about these things, you can’t eat principle. And so the rich get richer and the poor get poorer.
Here are some examples of bad copyright laws in action.
DMCA
Windows Update Hits File-Sharing Networks (2004-08-11)
(http://news.com.com/2102-1016_3-5304254.html?tag=st.util.print)Microsoft Takes Down SP2 Swappers (2004-08-16)
(http://news.bbc.co.uk/1/hi/technology/3561430.stm)Fair Use
321 Studios Complaint In PDF Format (2004-06-16)
(http://www.theesa.com/321StudiosComplaint.pdf)321 Studios Folds (2004-08-04)
(http://www.siliconvalley.com/mld/siliconvalley/news/9312457.htm)DVD XCopy Maker Shuts Doors (2004-08-06)
(http://www.pcmag.com/article2/0,1759,1632504,00.asp)Induce Act
Induce Act Is Free Speech Killer (2004-06-17)
(http://www.corante.com/copyfight/archives/004408.html)P2P Networks and the RIAA
RIAA Sues Yet Another 493 P2P Users (2004-05-25)
(http://www.afterdawn.com/news/archive/5261.cfm)RIAA Lawsuit Strategy Iffy At Best (2004-05-26)
(http://www.newsfactor.com/story.xhtml?story_id=24230)RIAA Sues Single Mom In Minnesota (2004-05-26)
(http://news.designtechnica.com/article3975.html)The Ongoing, Pointless Quest Of The RIAA (2004-05-26)
(http://www.technewsworld.com/story/34015.html)PIRATE Act
PIRATE Act Would Shift Copyright Civil Suits To DOJ (2004-05-26)
(http://yro.slashdot.org/yro/04/05/26/1538203.shtml)‘Pirate Act’ Raises Civil Rights Concerns (2004-05-26)
(http://news.com.com/2102-1027_3-5220480.html?tag=st.util.print)Digital Music and Digital Radio
Digital Audio Broadcasting Systems And Their Impact On The Terrestrial Radio Broadcast Service (FCC) (2004-05-26)
(http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-99A4.pdf)RIAA Protests Digital Radio (2004-06-12)
(http://yro.slashdot.org/yro/04/06/12/1435217.shtml)RIAA Targeting Satellite Radio (2004-06-14)
(http://news.designtechnica.com/article4257.html)CD Installs DRM Software Without Asking (2004-06-20)
(http://msl1.mit.edu/furdlog/index.php?p=2099)
* Some Good News In Copyright Law
It’s not all bad news, despite the fact that the bad news gets most of the headlines. The DMCRA is designed to take some of the teeth out of the DMCA and restore copyright rights to consumers. (Repealing the DMCA would be better, but the DMCRA is a good start.) It’s not law yet, but it’s a step in the right direction. Note that it’s an election year, when lots of bills, both good and bad, are drafted for purely political reasons. Also, note that at least one music artist — Steve Winwood — appears to get it. Finally, note that Reed, the world’s largest English language publisher, has adopted a more author-friendly copyright position for academics.
Some Good Copyright Developments:
Digital Copyright Act Revisited (2004-05-19)
(http://abcnews.go.com/sections/scitech/ZDM/copyright_act_pcmag_040519.html)Legislation That Tweaks The DMCA Is Worthy Of IT Support (2004-05-24)
(http://www.eweek.com/article2/0,1759,1598975,00.asp)Reed Allows Academics Free Web Access (2004-06-04)
(http://www.guardian.co.uk/online/news/0,12597,1230217,00.html)Boucher’s Anti-DMCA Bill Gets High Profile Allies (2004-06-22)
(http://yro.slashdot.org/yro/04/06/22/0454203.shtml)The Hill’s Property Rights Showdown (2004-06-22)
(http://news.com.com/2102-1025_3-5243241.html?tag=st.util.print)Promo Uses P2P Networks To Sell Songs (2004-06-30)
(http://news.com.com/2102-1027_3-5251479.html?tag=st.util.print)The Rights of Consumers (2004-07-06)
(http://www.eweek.com/article2/0,1759,1619923,00.asp)Ebay Tests Digital Music Waters (2004-07-16)
(http://www.wired.com/news/business/0,1367,64229,00.html)
* SCO vs. GPL (And Other Open Source News)
The SCO vs. IBM lawsuit is a protracted contract- and IP-based dispute about, more or less, who owns UNIX and the UNIX-like Linux operating system. (For the best coverage on this topic, see GrokLaw.) It has always amused me that IBM is basically letting the open source community (including the Free Software Foundation, the authors and guardians of the GPL, the license under which Linux and many other open source software packages are distributed) fight the battle for them.
There is little on IBM’s website about the SCO lawsuit. About the only indication from IBM that there is a controversy is that SCO, which used to be listed on IBM’s Linux page (http://web.archive.org/web/20030411064549/http://www-1.ibm.com/linux/) is now conspicuously absent (http://www-1.ibm.com/linux/).
Compare this to the wealth of information on SCO’s site about the lawsuit (http://www.sco.com/ibmlawsuit/). SCO has basically turned the lawsuit into a product, perhaps because they are not selling a lot of their other products.
Keeping in mind that SCO filed its lawsuit against IBM in March of 2003, compare the two-year stock performance of SCO (http://finance.yahoo.com/q/bc?s=SCO&t=2y) (from 20 to 1 in two years) to IBM (http://finance.yahoo.com/q/bc?s=IBM&t=2y) (more or less level at 80).
What has the SCO lawsuit really done? Put the GPL in the headlines and prompted much commentary about the GPL and other open source licenses (including less restrictive ones such as the BSD license). Meanwhile, OpenOffice.org (the open source Microsoft Office replacement backed by Sun) continues to release new products while Sun contemplates open-sourcing (if that’s a word) its flagship Solaris operating system under the GPL (albeit with Gollum/Smeagol-style “conviction”).
The Future Of The GPL (2004-05-31)
(http://www.linuxinsider.com/story/34109.html)Wicked, Tricksy, False! We Hates GPL! Noooo, GPL’s My Friend! (2004-06-02)
(http://www.siliconvalley.com/mld/siliconvalley/business/columnists/gmsv/8819569.htm)Showdown With The Linux Gang (2004-06-10)
(http://msnbc.msn.com/id/5182427/)SCO Battle With Linux Analyzed (2004-06-11)
(http://www.washingtonpost.com/ac2/wp-dyn/A29675-2004Jun9?language=printer)The Ins And Outs Of Open-Source Licensing (2004-06-16)
(http://www.eweek.com/article2/0,1759,1613358,00.asp)OpenOffice.org Announces Version 1.1.2 (2004-06-18)
(http://download.openoffice.org/1.1.2/index.html)OpenOffice.org For Mac OS X (X11) (2004-06-28)
(http://porting.openoffice.org/mac/)
* Linux For Everyone
Just as the GPL is the real winner in the SCO vs. IBM lawsuit, Linux is the winner in the everything vs. Linux debates. If Microsoft ignores Linux, Linux wins. If Microsoft compares Windows to Linux, Linux wins. Like the gold medal round in Olympic figure skating, all Linux has to do is avoid falling down and it will take home the gold medal. Every company and every product has a beginning, a middle, and an end. I believe that even though we are living in the Dark Ages of the Internet, we are also living in the beginning of the end of the Microsoft Era. For the first time, consumers have a real choice of computer hardware, computer software, and computer operating systems. Macintosh OS X continues to be the best (albeit expensive) combination of UNIX-style power (it’s based on the FreeBSD operating system) and a user-friendly GUI, and Linux continues to be a powerful and affordable operating system that runs on seemingly every hardware platform. Personally, I run versions of Windows, Macintosh OS, and UNIX-like operating systems (Linux and FreeBSD). After being on the Internet over 20 years, I enjoy having real choices.
Will Your Next Desktop PC Run Linux? (2004-05-27)
(http://www.pcworld.com/news/article/0,aid,116298,00.asp)Taking Linux For A Test Drive (2004-06-02)
(http://www.desktoplinux.com/news/NS6580788610.html)Windows Compatibility For The Linux Desktop (2004-06-10)
(http://www.linuxdevcenter.com/pub/a/linux/2004/06/10/win4lin.html)Microsoft Delivers ‘The Facts’ About Linux (2004-06-11)
(http://www.theregister.co.uk/2004/06/11/ms_roadshow/)
(http://www.microsoft.com/getthefacts/)GrokDoc Goes Live; All GNU/Linux Newbies Welcome (2004-06-14)
(http://slashdot.org/articles/04/06/14/1123248.shtml)
(http://www.grokdoc.net/)How To Talk To Microsoft About Linux (2004-06-14)
(http://news.zdnet.co.uk/0,39020330,39157635,00.htm)NewsForge Reviews Excel Clone For Linux (2004-06-26)
(http://slashdot.org/articles/04/06/26/1243203.shtml)RealNetworks Brings Player To Linux Distros (2004-07-01)
(http://www.eweek.com/article2/0,1759,1619279,00.asp)HP Unveils Its First Linux Laptop (2004-08-04)
(http://www.computerworld.com/softwaretopics/os/linux/story/0,10801,95026,00.html)
* Patents In The News
Patents continue to make news for all the wrong reasons. Europe is moving slowly but surely towards a US-like system of allowing software patents, much to the chagrin of opponents in Europe and elsewhere. This is part of a larger (and unfortunate) trend towards “harmonizing” the laws of Europe and the US. The goal of “harmonization” is what led to 20-year patent terms and the 1998 Copyright Term Extension Act (CTEA) in the US (thereby making both laws more like those in Europe). It is as if governments on both side of the ocean have given up thinking independently. The US has the best patent system in the world, primarily because it uses the first-to-invent rule. The US used to have one of the best copyright systems in the world, until the CTEA and other dubious modifications to the Copyright Act muddied the waters.
As usual, the patents that make headlines are generally the ones that cite little prior art (there’s room for improving the law here) and/or are more narrow in scope then they appear at first glance. Did Microsoft really patent double-clicking? No, but it makes for a good headline.
It’s worth noting that in the US, patents are filed in the name of the inventors. In order for corporations to file patent lawsuits, patent rights must be assigned from individual inventors to corporations. Are inventors happy that their inventions are being used in litigation? Some are probably not, but these same inventors likely assign their rights away because they feel their other option is to lose their job. Again, its hard to eat principle.
EU Approves Software Patent Changes (2004-05-18)
(http://zdnet.com.com/2100-1104_2-5215020.html)Europe Braces For Patent Rules (2004-05-28)
(http://www.wired.com/news/technology/0,1282,63628,00.html?tw=wn_tophead_4)Microsoft Patents Handheld Computer Click (2004-06-02)
(http://www.smh.com.au/articles/2004/06/02/1086058889577.html)Technology Industry Hits Out At ‘Patent Trolls’ (2004-06-03)
(http://news.bbc.co.uk/1/hi/business/3722509.stm)Microsoft Patents PDA Clicks (2004-06-04)
(http://www.eweek.com/article2/0,1759,1607294,00.asp)Microsoft Wins Patent For Handheld Clicks (2004-06-05)
(http://news.com.com/2102-1041_3-5226992.html?tag=st.util.print)Microsoft Double-Click Patent Sows FUD (2004-06-05)
(http://www.internetnews.com/bus-news/article.php/3364101)EFF Patent Busting Project’s Ten Most-Wanted Patents (2004-07-02)
(http://www.eff.org/patent/wanted)
* Parodies And Politics
I generally avoid writing about political parodies because politicians are such easy targets. Plus it’s an election year. But the JibJab parody of Bush and Kerry has drawn attention both because it is so funny and because the copyright owner of the song “This Land is Your Land,” which is used in the parody, has complained about its use. The trend here is that corporations have little or no sense of humor. And that parody law is (thankfully) well established to protect such expressions.
Fund For Animals Wins Web Dispute To Keep NeimanCarcass.com (2004-05-18)
(http://biz.yahoo.com/prnews/040518/dctu040_1.html)A Jibjab Showdown (2004-07-28)
(http://money.cnn.com/2004/07/26/commentary/wastler/wastler/)JibJab Asks For Court’s Help (2004-08-03)
(http://www.wired.com/news/culture/0,1284,64428,00.html)Political Parody Draws Web Crowd (2004-08-16)
(http://news.com.com/2102-1028_3-5312081.html?tag=st.util.print)
* Spam Wins And Losses
While Congress has been bending over backwards to give more copyright rights — including the right to sue — to corporations and to the government, it has basically ignored the spam epidemic. Despite new spam laws (including a silly FCC decision with an exception that swallows the rule), individuals still lack the right to sue spammers. The right of individuals to file suit is what greatly curtailed junk faxes, and until individuals have this right in the context of spam, the spammers will win. It is a sad state of affairs when the only one with the resources to take on the spammers and win is Microsoft. And you know spam is a common problem with it makes news in Consumer Reports.
Microsoft Awarded $4 Million In Spam Suit (2004-07-16)
(http://zdnet.com.com/2100-1104_2-5272776.html)Did The FCC Ban Mobile Spam? (2004-08-04)
(http://www.thefeature.com/article?articleid=100950)Wireless Spam Draws Regulators’ Wrath (2004-08-05)
(http://news.com.com/2102-1028_3-5296649.html?tag=st.util.print)Consumer Reports Shows Spam Is Not Canned (2004-08-10)
(http://online.wsj.com/article/0,,SB109209213254586948,00.html)
* Technology Update
Finally, here’s a handful of technology articles worth reading.
One PC, Six Hard Drives, 37 OSes! (2004-06-06)
Just when I thought I was cool for building a dual-boot Linux-Windows laptop, I found out about this guy.
(http://www.maximumpc.com/features/feature_2002-09-24.html)Together At Last (2004-06-11)
Robert X. Cringely opines that most weblogs are boring and aren’t worth sharing but are potentially helpful for personal data mining. I can relate to this. Although I have been blogging less on LawLawLaw lately, I have not been blogging less. I set up a personal (and password-protected) weblog for my kids (who are 10, 8, and 6), which I’ve been using to teach them about writing, computing, and themselves.
(http://www.pbs.org/cringely/pulpit/pulpit20040610.html)Invisibility Cloaks – Not Just For Harry Potter Anymore (2004-06-16)
Sure, now they invent this. Where was this when I was a kid? And, by the way, where are the flying cars?
(http://news.bbc.co.uk/2/hi/technology/3791795.stm)The Myth Of Disruptive Technology (2004-08-17)
I have been reading — and hating — the book “The Innovator’s Dilemma” for precisely the reasons outlined in this article. Maybe now I’ll have the courage to spare myself from having to finish the book. Ah yes, the power of independent thinking.
(http://www.pcmag.com/print_article/0,1761,a=132235,00.asp)
