DMCA Rulemaking: The Caveat

Many are celebrating the release of the Copyright Office's new set of 17 USC 1201 (a)(1) exemptions which allow for the circumvention of certain technological protections to make lawful uses of copyright protected works. They include circumventing:

1. DVD protection for copying short portions for commentary or criticism;
2. mobile phone programs for interoperability (such as adding a program that the operator doesn't want added);
3. mobile phone programs for network interoperability (such as allowing use on another operator's network);
4. video games for testing security flaws;
5. computer programs protected by obsolete dongles; [This one is particularly satisfying to me as I helped the Internet Archive get this way back in 2003.]
6. literary works when no edition allowing read-aloud exists.

I'm paraphrasing and over-simplifying, so take a look at the actual determination of the Librarian of Congress for more (and more accurate) detail.

While these are significant steps forward in both the specific "classes" exempted and the more reasonable scope of "class" that the Office continues to embrace, the celebration misses the fact that the vast majority of us will not be able to take advantage of the new exemptions. For example, the first exemption that allows for the circumvention of DVD access protection for educational and other uses of short clips clearly envisions students and media professors copying and short bits of films for use in criticism and discussion. This is a good step forward but its actual usefulness is hampered by the fact that the tools these students and professors might use to make that (now) lawful fair use are still illegal under 17 USC 1201 (a)(2) and/or 17 USC 1201 (b). The exemptions only apply to the actual act of circumventing (17 USC 1201 (a)(1)) but not any of the tools needed to accomplish the circumvention (17 USC (a)(2) and 17 USC 1201 (b)). So unless the students can somehow circumvent the DVD protections all by themselves, what they have received is a theoretically appealing but practically useless exemption. For students to actually be able to reasonably and legally make use of DVDs and cell-phone owners to exercise the ordinary "ownership" rights in their phones we need exemptions from (a)(2) and (b). Those are not forthcoming.

The exemptions won today are big steps forward and many were hard fought and well-won by the Electronic Frontier Foundation. The EFF deserves our thanks, congratulations and donation, but we still have a long way to go.

Update: El Pedro points out in the comments that there may be non-circumventing ways to record from DVD.

Copyright Issues Ripe for Reform

Wrote a post on the Tools of Change in Publishing blog. Some thoughts about important issues in copyright related to ebooks. Comment there if you can.

In Praise of Transactional Attorneys

I have always respected the attorneys that draft and negotiate commercial agreements. In the last while, I've been doing a bunch of that myself and so have increased my understanding of the joy and difficulties they face.

The basics of the job include working with one or more groups of other attorneys from other companies to negotiate and draft an agreement to reflect the terms of a commercial deal. It can be as simple as I will give you X number of widgets for Y amount of dollars or as complex as hundreds of pages attempting to deal with all sorts of contingencies. These deals are then used by companies to figure out what they should do, for example pay $Y when X widgets are delivered, and, extremely rarely, they are used by courts to figure out whether a company has wronged another by violating the contract.

There is a lot of joy in making a deal work and thinking of creative solutions to disagreements but the job is also VERY tough. To put it in computer terms, imagine the contract as a computer program. In each the object is to be able to interpret the words and have that interpretation drive a result. Now imagine that there is no compiler for your program and that you can't run any tests. All debugging must be done only theoretically and in your head. Imagine that you are coding with another person that is likely to be trying to develop a program that does something significantly different from what you want it to do. You and the other programmer may have different time constraints and, even though you are trying to do different things, you have to be on good terms with the other person because she could just as easily decide to stop working on your project. You and the other person take turns editing the code but without a common coding environment or standard tools to figure out whether the other person (or you) goofed it up. Then imagine that the code you are writing has a high probability of only ever being "run" through two different interpreters with significantly conflicting points of view about desirable outcomes and you likely won't get to see the result of any of these "runs." Or you may be asked to interpret the code in light of complete changes in context. Include a small chance that your code will be "run" by a relatively unbiased interpreter but the outcome of that one interpretation will be at extremely high stakes, often millions of dollars. Finally, know that you will likely get little credit for writing good code but will be crucified if the one time your code is run it doesn't work flawlessly. Now you are beginning to understand how hard the job of a good transactional attorney is.

Great transactional attorneys also pack a whallop of business sense and are very hard to find. Of course I believe our department at Twitter has some folks that are extremely good at this, and the team at Google is also wonderful. If you are not lucky enough to work at either of these companies I'd also recommend the great folks at Fenwick, Heather Meeker of Greenberg Traurig and Suzanne Bell of Wilson Sonsini. Wherever you work, give thanks for your transactional attorneys, I'm sure they deserve it.

Twitter Lists

Loving Twitter Lists. Just added the widget to this blog for my list of folks who tweet about internet law.

Google Book Search Hearing

Full video is up. Am looking forward to seeing it all. Cnet has a story with some quotations from it.

Twitter

Today was my first day at Twitter. Good vibe about the place. Shouldn't change this blog much though it may allow me to blog a bit more about copyright since I won't be dealing with those issues at work.

"Makers" Schedule

Another great essay by Paul Graham. This time about keeping control of your schedule to ensure large chunks of uninterruped time. Paul can sometimes wear programmer-colored glasses and this essay is no exception. I completely agree that programmers are one group that often needs uninterupted time, but they are not alone in any way. Even Paul's bogeyman -- "managers" -- often need uninterrupted time to focus on problems of strategy or operation (or any other type of problem or goal). There are LOTS of ways to do this. Paul mentions office hours as a way to consolidate and shorten meetings. We've been doing that for product counsel legal advice for years now and I highly recommend the "office hours" approach. In a large organization, it can also have big benefits in terms of reminding people that maybe they should drop in to ask your advice on something as long as you consistently schedule the office hours and hold them in visible locations (our preferred room was a glass walled room on a busy walkway in the center of campus).

Some other things I have heard tried:

• Meeting Mondays (or no meeting Thursdays): The important thing here is that you designate certain days as acceptable for meetings and others as not throughout the company. The fewer exceptions, the more likely this will work.
• Meeting with yourself: My calendar at Google was world-writeable within Google. That meant that if I wanted uninterrupted time, I had to schedule it. One way to do "no meeting Thursdays" is to just schedule yourself for an all day meeting with yourself on Thursday.
• Retreats: Being in a physically different place as well as being "booked" for uninterrupted time can be amazingly productive. Bill Gates and Jeff Bezos, two other programmers turned managers like Paul, to regular extended retreats to think.

I'm sure there are many more ideas along these lines and I'll try to update this post with links as I come across them.

Update: David Weinberger on office hours.

On Leaving Google

Working in Google Legal has been a dream job. The people at Google are phenomenal. In every part and at every level of the company there are great people with multiple useful talents in addition to those that got them the job. For a lawyer, the issues we dealt with every day were fascinating, the real-world impact of our work was humbling, and the ethical compass of the place remained true

Among many other things, I am proud to have been part of the legal department that helped:

Increase transparency for removals: Google remains the only search engine that sends legal notices to ChillingEffects.org to document search results suppressed for legal reasons. UPDATE: I'm pleased to report that as of sometime in the last few months, Yahoo! is sending at least some (maybe all) of their notices to ChillingEffects. This is GREAT news and I apologize to Yahoo! for not noticing this earlier.

Stand up to the Department of Justice: Google was the only search engine provider that stood up to the Department of Justice’s overbroad request for search query information.

Launch Google Book Search: Google is making books easier to find by using fair use for a great purpose and is working to expand access to books through the Book Search settlement.

Stand up for users: In my experience, Google does “focus on the user.” Google Legal is no exception in its decisions about everything from global product functionality to individual removals. As a result, we’ve been threatened or sued many times for user-focused functionality and what our users have said through our services.

There are many other examples, and many more that are confidential or privileged, but these give you a flavour of the types of things the Google legal department gets to do. I still can’t recommend it highly enough (really, go check out the jobs page).

Thank you Googlers, it was an honour.