Posts by Sherwin Siy:

The US Copyright Office and the Patent and Trademark Office today held a roundtable discussion to hear from various industry and public interest organizations before the WIPO meeting in Geneva later this month. Like last September's roundtable, the discussion was fairly informal, with each speaker given two minutes to speak, and the chance to rebut counter-arguments only after everyone in the room had a chance to talk.

Manon Ress at CPTech has a more detailed blow-by-blow account of the meeting; I'll try and summarize the main points here.

Ann Chaitovitz of the USPTO opened the discussion by noting that the WIPO General Assembly had called for a narrower signal-based treaty, and that the US delegation was interested in hearing the attendees' opinions on that, as well as particular concerns about the current draft of the treaty. Basically, a signal theft treaty would require countries to prohibit illicit retransmission of broadcasts, while an exclusive rights-based treaty would grant broadcasters ownership of their signals–in most drafts, even after the broadcast signal had been recorded by a user.

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Time’s 2006 Person of the Year

December 21, 2006

Well, congratulations to all of you, since we're all collectively Time's Person of the Year. Granting this honor to the second-person pronoun may be slightly goofy, but it does show that Time understands the growing importance of user-generated content. Some, however, have problems with Time's selection, and not just because it's an amorphous mass of people. Take, for example George Will, who, growing increasingly agitated on a segment of This Week, criticized the choice as "narcissism." "So much of what is done on the Web is people getting on there and writing their diaries as though everyone ought to care about everyone's inner turmoils."

Will is right in that narcissism probably does play a big part in a lot of user-generated content. But that's not the sum total of what's on the Web, and even that narcissism is put to good use. The thousands upon thousands of people who "narcissistically" upload their ideas, voices, and videos to the Web create a vast pool of information from which we all can draw, and see for ourselves (and our friends) whether it is funny, insightful, or informative. And the distributed, individualistic (narcissistic, if you will) nature of all of these contributions means that, within that massive pool, there's going to be something that appeals to even the smallest niche group. Even more interestingly, the broad diversity of stuff means that the sudden popularity of a blog, song, video clip or catchphrase can identify previously unknown cultural touchstones among people scattered all over the world. These are the ideas that would have escaped the notice of television executives and record labels, ideas that have their day through people voting with their eyeballs–and then their links.

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The California Attorney General just announced a $14.5 million settlement with Hewlett-Packard for its use of pretexting, a type of fraud, to spy on its board members and journalists who were reporting on internal strife at the company. Nothing so surprising there–the investigation has been going on for a while, and there was no question as to wrongdoing on the part of HP leadership. What's interesting, though, is where that money is going. According to the settlement agreement and the AG's own press release, $13.5 million is going to create a new "Privacy and Piracy Fund," which will finance "law enforcement activities related to privacy and intellectual property rights."

Now, I'd be the first to note that there are intrinsic links between privacy and copyright law and policy, but more often than not, this link comes about because overzealous, self-appointed copyright cops are all too willing to invade users' privacy: installing spyware on computers; lobbying for personal information to be web-accessible before registering a domain; and defeating laws that would specifically target actions like HP's pretexting.

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As Alex has mentioned, the Wall Street Journal today printed an editorial that broadly describes Google’s business as being “legally ambiguous” in terms of copyright law. But the editorial itself does clarity no favors in making its argument. The piece not only blurs the facts of what Google’s doing, it also mischaracterizes the legal landscape, in promoting a system where anyone providing an online service has to either seek permission from copyright owners before setting up shop or to pre-screen and pre-approve everything that their users do online. According to the Wall Street Journal:
Google and YouTube claim it’s impossible for them to chase down permission from tens of millions of video and printed-word copyright owners. Hey, this was their idea; it seems like a $150 billion, smarter-than-everyone company should be able to figure out how to police its Web site.
The piece does a bad job of laying out the facts surrounding several distinct Google activities–BookSearch, YouTube, and news and image searches. Vaguely referring to these all in the same breath, the Journal suggests that the company is posting entire bookstores’ worth of copyrighted materials for anyone to read. This just isn’t the case. Google only posts short snippets of copyrighted books owned by its library partners, so that, for instance, users trying to identify a given quote or passage can identify its source. Longer passages are hosted only with the permission of the publisher, or if the book has already entered the public domain. In the case of copyrighted books, no more than a few lines at a time–certainly no more than would be available in a book review or in any other “unauthorized” use.
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Here's something you might have seen floating around the 'net: a video of some Bank of America employees celebrating the MBNA acquisition with a version of U2's song "One." And, of course, there's now the obligatory cease-and-desist from the record label, according to the New York Times. (As of this writing, the text of the cease-and-desist was available in the comments section of Stereogum's post on the video). There are many, many things wrong with this situation, but I'm going to limit my analysis of the problems to the legal situation, and leave the aesthetic judgment to you.

Part of Universal's claim in the cease-and-desist is that the video was created and uploaded by B of A as part of a viral promotional campaign. I'm sure Universal wants that to be true, because if it were, it makes their case a lot less silly-looking. But right now the video looks like what it claims to be–a recording of a goofily earnest suit having some fun with a well-known tune at a private conference. If B of A had put this version of "One" on TV ads celebrating the merger, that would be a clear violation of copyright, and few would object to Universal suing over that. Universal, as the owner of the copyright in the U2 song, has the exclusive right to create (or let others create) so-called "derivative works" based on the original recording.

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One of the many compelling reasons to oppose the WIPO broadcast treaty in its current form is that it wraps another layer of property rights around works that are broadcast. The problems this causes become far clearer when works in the public domain are involved.

Imagine an old Charlie Chaplin movie in the public domain. Anyone has the right to view it, copy it, distribute it, or play it in public. The movie belongs to all of us, Chaplin and his affiliates long since compensated by its sales while it was subject to copyright law.

Under the proposed WIPO broadcast treaty, a TV network that took this public domain movie and played it over the air would have the right to sue anyone who taped the movie off of that broadcast and redistributed it.

Compare this to what happens when a book falls into the public domain. The text is available for anyone to read, copy, distribute, or adapt. If a publisher decides to print some copied of the work and sell them, anyone who acquires a copy can copy, distribute, or adapt the text from that new printing. It doesn't matter that the publisher has invested money in finding a previous copy of the work, or spent money on the paper and bindings. Those costs, presumably, are offset by the price the publisher charges for the book itself. The fact that others can subsequently copy the book is just part of the calculus that a publisher has to make when putting a public domain work into print.

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Free Range TV

November 9, 2006

On Monday, Albert Cheng of the Disney-ABC Television Group gave a presentation at the FTC's Tech-ade event. In it, he outlined the network's strategy for distributing TV shows online, while still bringing in revenue. ABC needed to have online distribution of its shows, he said, because if they didn't someone else would put them up on the Net anyway. "If someone's going to be eating our lunch, it might as well be us," he said.

The point was that consumers aren't looking to cheat companies out of revenue; they simply want to see the show with a minimum of hassle. They want to be able to record the show and watch it when they want. They don't want to have to put up with lengthy ads. They want to be able to watch shows on the various devices they own.

To that end, ABC is starting to offer shows after they've aired on iTunes for a couple of bucks; they're also letting people stream the latest episodes of the shows to their computers for free, with revenue coming from short streaming ads. This seems like a fine way to provide consumers with a show across different platforms, and is likely to cut down on the demand for pirated versions of ABC shows on YouTube.

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This week, the Federal Trade Commission hosted a set of hearings called "Protecting Consumers in the Next Tech-Ade." The hearings featured a series of talks and panel discussions about how technology will change the way consumers act and are acted upon over the next ten years. As you can see from the agenda, the hearings covered a wide variety of topics–far too many for me to blog about all of them. But my next few posts will focus on a few particular issues that caught my eye.

One discussion at the Tech-ade conference focused on digital rights management, or DRM. One of several problems with DRM is that it often restricts how consumers can use the music, movies, or software they've bought, without telling them beforehand. Currently, media companies are trying to fix this with end-user license agreements, or EULAs. According to the companies, a EULA provides consumers with notice that they won't be able to have their computer read an audiobook aloud, or copy a downloaded song from one music player to another.

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