I always love Mark Pilgrim's site, Dive Into Mark. Today he has two classics. The first is about the problem of having no commute, working all the time and getting frustrated. The second tells about his boss reading the first post, telling Mark to unplug and then Mark realizing how hard that is.
As usual, Copyfight is worth a read. This time about the intersection of the Eldred v. Ashcroft decision, "limited times" and the DMCA. These are good arguments that have also been made in the context of the current round of comments to the Copyright Office on exceptions to Section 1201(a)(1) of the DMCA, including those made by Barry Klawans, Eric Eldred, Michael A. Rolenz, the EFF (Class #4), and, of course, Brewster Kahle that I, Lawrence Lessig and Wendy Seltzer are proud to have also signed.
In a bit of a strange opinion [via Bag and Baggage], the First Circuit just adopted an explicit opt out requirement for unauthorized access to web sites without technological protections under the Computer Fraud and Abuse Act (18 USC 1030).
The case is EF Cultural Travel BV et al. v. Zefer Corp. and Explorica, Inc., No. 01-2001 (1st Cir. 2003). EF and Explorica are competitors in the student travel business. EF has a web site where it publicly displays its prices. Explorica, formed by former EF employees, hired Zefer* to write an program to scrape EF's site and create a database of EF's prices. Then Explorica undercut EF's prices by 5 percent and, presumably, enjoyed some competitive success. EF brought a motion for a preliminary injunction to stop Explorica and Zefer from scraping its prices. The motion was granted and both Explorica and Zefer appealed. Zefer's appeal was stayed because of bankruptcy proceedings and Explorica's was denied [west summary] based on a breach of a confidentiality agreement argument (that publicly available codes and prices can be protected by a confidentiality agreement is beyond me, but not the subject of this post). The current opinion tackles the question of whether the injunction was valid against Zefer, the company Explorica hired to make and run the scraper.
Chief Judge Michael Boudin wrote the opinion of the Court. It affirmed the injunction but only to the extent Zefer would be bound not to help Explorica violate the injunction against it in any case (ie without Zefer having done anything wrong in the first case). However, the wonder of the opinion, and why I write that it is a bit strange, is all of the other (unnecessary) things in it.
knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period;
18 USC 1030(a)(4). For the purposes of its opinion the First Circuit assumed that the fraud element(s) were met and focused on the appropriate test for "exceeding authorized access." The District Court had proposed a "reasonable expectations" test based on what the user might have expected was reasonable (a la reasonable expectation of privacy and the Fourth Amendment). The First Circuit flatly rejected that test and instead made clear that in order to "exceed authorized access," in accessing publicly available web pages, that access had to be explicitly prohibited (through a terms of service or other such mechanism).
Later I will try to excavate other interesting nuggets from the decision and give my take on the ramifications...
* note, all links to Zefer are to different Archive.org snapshots of the site (old to closing) because Zefer.com no longer responds.
I am posting the following as a bit of celebration after reading the decision discussed below.
National Geographic posts some incredible photographs for use as backgrounds on its Photo of the Day page along with instructions (for Windows and Mac only) on how to make the image your desktop background. The following script downloads the daily background to automate that task. If you need to convert the image, I suggest ImageMagick's wonderful collection of utilities.
#always use strict
#for the getting of the page and image
#get the entry page and look for the link to the big background picture
#store that big picture
I've been using the script for a few months now and seeing a new national geographic picture every day has made me want to resubscribe to the magazine.
Just finished my first read of the Introduction to Professor Fisher's new book "Promises to Keep: Technology, Law, and the Future of
Entertainment" [via John Palfrey] It restates some of the arguments Professor Fisher previously made at The Future of Music Policy Summit and which I discussed earlier and even earlier. It also outlines the monstrous assignment Professor Fisher has given himself.
Chapter 1: The Promise of the New Technology
Chapter 2: The Baseline: Entertainment Law and Practice in 1990
Chapter 3: What Went Awry
Chapter 4: Taking Property Rights Seriously
Chapter 5: Online Entertainment as a Regulated Industry
Chapter 6: An Alternative Compensation System
Seems like a good way to go about the analysis and I love the title. Can't wait to read the rest.
Later: The ruling is (almost) all about statutory construction. Verizon argued that 512(h), which allows copyright holders to serve subpoenas on service providers for users' identities without the necessity of filing suit, did not apply to service providers covered by Section 512(a), including Verizon. [A short detour to refresh readers' recollections that Section 512 is directed at four types of service providers defined in the section's subsections providing safe harbor to these providers. They are: 512(a) (mere transmitters), 512(b)(cachers), 512(c) (hosters) and 512(d) (information locators) ] Verizon argued that 512(h) did not apply to them because 512(h) requires that a 512(c)(3)(A) notice be provided. A 512(c)(3)(A) notice is part of section 512(c) (and incorporated into 512(b) and (d)) and requires, in part:
Verizon argued that the notice can't be applied to them because they do not host the allegedly infringing material.
The Courth sided with the RIAA and found that 512(h) covers Section 512(a) providers (and by extention 512(b) and 512(d) entities as well.) The decision discusses the constitutional issues relating to anonymous speech (and gives a lot of dicta about the lack of a problem) but declines to rule on them because they were not appropriately raised by the parties.
Other quotations from the opinion to note:
- "The copyright holder, however, cannot readily determine whether its infringed material was stored on or merely transmitted across the service provider's system, and hence whether it faces a subsection (c) or subsection (a) situation. As a result, if the copyright owner could only utilize the subpoena process for subsection (c) service providers, it would have to establish at the outset that the service provider fell within subsection (c) in the particular case at hand." - I don't understand this, the copyright holder still has to figure out who to send the subpoena to, no? And if so, are there really instances where this would be a higher burden? Especially since good faith is all that 512(h) requires of the request.
- "Moreover, the Supreme Court recently confirmed in Eldred
v. Ashcroft that the proximity of the Copyright Clause and the First Amendment demonstrates 'the Framers' view [that] copyright's limited monopolies are compatible with free speech principles,' and that copyright serves to promote First Amendment ideals as ''the engine of free expression.'' "(citations omitted) - Again, this seems to be taking Eldred way out of context, indeed as Jack Balkin has argued, Eldred may stand for the opposite proposition with respect to paracopyrights such as those in 512(h).
Still Later:Donna passes along a question from Blythe that asks:
[As] we saw from the headlines, no judge is necessary to obtain the subpoena...nor, it seems, does the copyright holder have to prove infringement in order to get a subpoena.
Of course, this has always been the case because a copyright holder could simply file suit against a John Doe defendant and then serve a subpoena on the ISP. Notice that no judge is required to intervene, nor is any copyright infringement proven before the information is turned over. However, there is a line of cases attempting to change that with some success in the defamation context. See e.g. Dendrite International v. John Does, et al.
That seems extraordinarily foolhardy to me. When my hard drive fried I needed to download a few Linux and FreeBSD distributions. That was easily in the many gigs in a day. I would have been absolutely flabbergasted had my service provider shut me down in the middle of my transfer. And, I assume that my service provider (or Verizon) would soon have very few broadband customers, or be overrun with "action items" requiring them to violate their customers' privacy by checking on what they were downloading if they took Ms. Loizides' advice.
Later:Not to pick on Ms. Loizides, but her most recent web log entry also has this to say about the decision: "Under the law, Verizon lost their bid to re-define themselves." While I agree with her proposition that definitions matter in law, the Verizon decision was not about Verizon trying to redefine itself or fit into a different sub-section of 512. The court found that the type of service provider that Verizon is (512(a)) doesn't matter for 512(h). Any type of service provider under 512(a)-(d) must respond to a 512(h) subpoena.
A friend of mine who has been a courts reporter for a daily newspaper and is now freelancing about, among other things, digital rights issues, sent me the following:
lines of playing cowboy, but instead of cattle, you're roping the abyss. When
I was writing about the courts, so much of it dealt with established criminal
statutes that it was hard to find something unique -- it usually involved a
tiny point of federal sentencing guidelines. Here, it's completely under
construction -- the laws are still being written and the new ones are still
Good luck building the barn...
Of course, that made my day, but I am not sure we are so unique either in the legal profession or in the world. I wrote back:
You made my day. Thanks, never been called a cowboy before. But, this is true of every type of law -- I think. If you look closely enough, there are always issues that have never been heard, or facts that laws have never been applied to, or the need to come up with a creative application of some old legal doctrine or new statute. As with journalism, whatever story you are currently working on has never been told the way you are about to tell it (and you get to be learning along the way). Probably why I love my job and why freelancing is such a kick.
And, why I think bricolage is something that we all do and that we all could do more of.
Here I want to take issue with Seth's question: whether Fisher has suggested the "dreaded pay-per-view society." To which I would answer, not necessarily. As I understand Fisher's suggestion, money is collected as a tax/license on media or other digital music associated goods (bandwidth etc) and then is allocated based on use. So I pay what amounts to a fee for use of bandwidth or other goods and then the money I pay gets distributed (along with everyone else's) based on my (and everyone else's) listening etc. to the music. Artists are paid-per-view (although sampling may be more appropriate here and I don't know which Fisher proposes) but I pay-per-related-good. Some uses will in fact be pay-per-use (streaming if bandwidth is taxed and metered for example) but many will be flat rate (listening to an mp3 on a taxed hard drive for example).
One of the main questions is, how will the compulsory license revenues be distributed. In Fisher's model, there will be some sort of counting done. Since I have been working on a voluntary version of this for some time in order to help me keep track of what I listen to and listen more often to tunes I don't hear as much, I can certainly attest to how difficult it is to do rigorously. So, Seth's point is certainly well taken. The devil is in the details and 100% measurement sounds Fritzian, (or Orwellian). However, on many platforms it is relatively easy -- hey if I can code it, it must be easy. Particularly if you don't have to worry about cheating. So, if we aren't worried about being accurate, but only about sampling and estimating, I think it can be pretty easily done (see Neilson's).
Update: Ed Felten has picked up the thread with a similar but different post which takes into account why people might want to cheat.
See also my comments on Seth's reply.
A busy day, already the ClearPlay countersuit is reported, the copy editors at Seattle Post-Intelligencer worry that European copyright expirations loom over the U.S. recording industry (gotta love "looms"), Ed Felten got the times to change its tune on the same issue, the Peter Pan suit gets more press (see also the summary from Stanford and Amy Harmon has an article on DRM. [some from Copyright Bibliography others from Felton: Freedom to Tinker].
Only under extraordinary circumstances can an article be removed (e.g., plagiarism, scientific misconduct, gross error such that human safety is at risk) and then a statement is inserted to indicate the removal.
This highlights one of the unique difficulties true archives face in keeping their promise of perpetually preserving a work. [via FOS Blog].
Another problem with zonker's proscription is that it argues that mirroring/caching should require permission (be opt-in) but the web would be a much less beautiful place if that were the case (think of the problems Google or the Internet Archive would face -- or even IE or Netscape and caching).
Instead, I would argue that sites like Slashdot should:
- Provide caches of the first page or movie or image on which they are reporting for pages that do not have advertising (but leave direct links for very large sites and pages supported by advertising)
- Keep links off that page pointing to the real site; and
- Remove the caches after a limited (short) time.
That way advertising supported sites get the maximum amount of advertising, but sites not supported by advertising on the about to be slashdotted pages are not overwhelmed. I would not require permission for linking or caching. That permission is implicit in the posting of a publicly accessible web page. Prohibiting linking in order to deal with slashdotting is not a sensible argument.
Phish is trying a new way of distributing music for their most recent tour. At Live Phish you can buy MP3s and SHNs from the tour and receive them by download two days after each show. No DRM. Interesting experiment, especially since Phish allows taping of their shows. I just downloaded the New Year's Eve show.
From their FAQ:
Why should I pay for what I can get for free?
Primary advantages of Live Phish Downloads over audience recordings are: pristine soundboard quality, faster and more reliable downloading and quick turnaround. In most cases, shows will be available for download within forty-eight hours. Each show is carefully indexed and comes with printable booklets (containing liner notes), tray inlays and CD labels. The files are served by a robust delivery network capable of serving thousands of simultaneous downloads, ensuring the fastest and most reliable download experience for the user. We also offer quick response customer service to help sort out any problems that may arise. That being said, audience taping has always been and will continue to be a defining element of the Phish experience. Live Phish Downloads offers an alternative, convenient route to obtaining live recordings and is in no way intended to supplant or undermine the taping community.