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Archive for the ‘law’ Category

AP claims web sites have to license 5-word quotations

Posted by Fred on June 19, 2008

Cory Doctorow notes the Associated Press’ claim that you should have to license 5-word quotations:

In the name of “defin[ing] clear standards as to how much of its articles and broadcasts bloggers and Web sites can excerpt” the Associated Press is now selling “quotation licenses” that allow bloggers, journallers, and people who forward quotations from articles to co-workers to quote their articles. The licenses start at $12.50 for quotations of 5-25 words. The licensing system exhorts you to snitch on people who publish without paying the blood-money, offering up to $1 million in reward money (they also think that “fair use” — the right to copy without permission — means “Contact the owner of the work to be sure you are covered under fair use.”).

When attacked over the plan and its demand that The Drudge Retort remove some unlicensed excerpts, the AP backed down and is reconsidering its position:

After that, however, the news association convened a meeting of its executives at which it decided to suspend its efforts to challenge blogs until it creates a more thoughtful standard.

“We don’t want to cast a pall over the blogosphere by being heavy-handed, so we have to figure out a better and more positive way to do this,” Mr. Kennedy said.

That’s all well and good, but what is more worrisome is the claim in the NY Times article that

The A.P.’s effort to impose some guidelines on the free-wheeling blogosphere, where extensive quoting and even copying of entire news articles is common, may offer a prominent definition of the important but vague doctrine of “fair use,” which holds that copyright owners cannot ban others from using small bits of their works under some circumstances.

No, it won’t, because it can’t. Fair use is a legal doctrine, and the AP can no more redefine what it means than the Times can define libel to mean “a false and malicious publication printed for the purpose of defaming a living person, unless it is published by the New York Times.”

Posted in Blogging, law | Tagged: , , | Leave a Comment »

Is the Kozinski story less than it seems?

Posted by Fred on June 13, 2008

By now everyone knows the story of Alex Kozinski, Chief Judge of the 9th Circuit Court of Appeals, who recently suspended an obscenity trial due to some issues of his own:

A closely watched obscenity trial in Los Angeles federal court was suspended Wednesday after the judge acknowledged maintaining his own publicly accessible website featuring sexually explicit photos and videos.

Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, granted a 48-hour stay in the obscenity trial of a Hollywood adult filmmaker after the prosecutor requested time to explore “a potential conflict of interest concerning the court having a . . . sexually explicit website with similar material to what is on trial here.”

That’s a story bound to attract attention, what with the sex and the alleged hypocrisy.  Prof. Lessig, however, says all is not as it appears to be:

What I mean by “the Kozinski mess” is the total inability of the media — including we, the media, bloggers — to get the basic facts right, and keep the reality in perspective. The real story here is how easily we let such a baseless smear travel – and our need is for a better developed immunity (in the sense of immunity from a virus) from this sort of garbage.

Here are the facts as I’ve been able to tell: For at least a month, a disgruntled litigant, angry at Judge Kozinski (and the Ninth Circuit) has been talking to the media to try to smear Kozinski. Kozinski had sent a link to a file (unrelated to the stuff being reported about) that was stored on a file server maintained by Kozinski’s son, Yale. From that link (and a mistake in how the server was configured), it was possible to determine the directory structure for the server. From that directory structure, it was possible to see likely interesting places to peer. The disgruntled sort did that, and shopped some of what he found to the news sources that are now spreading it.

Cyberspace is weird and obscure to many people. So let’s translate all this a bit: Imagine the Kozinski’s have a den in their house. In the den is a bunch of stuff deposited by anyone in the family — pictures, books, videos, whatever. And imagine the den has a window, with a lock. But imagine finally the lock is badly installed, so anyone with 30 seconds of jiggling could open the window, climb into the den, and see what the judge keeps in his house. Now imagine finally some disgruntled litigant jiggers the lock, climbs into the window, and starts going through the family’s stuff. He finds some stuff that he knows the local puritans won’t like. He takes it, and then starts shopping it around to newspapers and the like: “Hey look,” he says, “look at the sort of stuff the judge keeps in his house.”

This analogy, I submit, fits perfectly the alleged scandal around Kozinski. His son set up a server to make it easy for friends and family to share stuff — family pictures, documents he wanted to share, videos, etc. Nothing alleged to have been on this server violates any law. (There’s some ridiculous claim about “bestiality.” But the video is not bestiality. It lives today on YouTube — a funny (to some) short of a man defecating in a field, and then being chased by a donkey. If there was malicious intent in this video, it was the donkey’s. And in any case, nothing sexual is shown in that video at all.) No one can know who uploaded what, or for whom. The site was not “on the web” in the sense of a site open and inviting anyone to come in. It had a robots.txt file to indicate its contents were not to be indexed. That someone got in is testimony to the fact that security — everywhere — is imperfect. But this was a private file server, like a private room, hacked by a litigant with a vendetta. Decent people — and publications — should say shame on the person violating the privacy here, and not feed the violation by forcing a judge to defend his humor to a nosy world.

According to Jesse Walker (linking to conservative pundit Patterico), the lawyer with a grudge who outed Kozinski was Cyrus Sanai.

I don’t think the professor’s analogy is entirely apt – the server in question was accessible to the world at http://alex.kozinski.com, although the index page just provided a message telling a visitor to go away.  That’s not really private, and blocking the Google spider via a robots.txt file doesn’t make it private either.  It could have been private with a password or other security, but it wasn’t.  So it’s not really the same as Judge Kozinski’s house.  But it’s not a “publicly accessible website featuring sexually explicit photos and videos” either.  Nor is the material revealed to date a “sexually explicit website with similar material to what is on trial” before the Judge.  It appears to be far more akin to the sort of mildly offensive viral email that would have gotten Kozinski in trouble had he forwarded it from work.

None of this should bar Judge Kozinski from presiding over this trial, of course.  Who is really aggrieved by any of this?  This offended lawyer with a grudge, to be sure.  People who hate judges generally or the 9th Circuit in particular.  People who think pornography should be excised from society by any means necessary and are afraid Judge Kozinski won’t put this particular smut-peddler in jail where he belongs, even if he didn’t actually break any laws.  That’s not necessarily a huge group, but it is a loud one, so this story isn’t going anywhere anytime soon, truth be damned.

Posted in internet, law, Politics | Tagged: , , | Leave a Comment »

"Former Nuclear Safety Officer" says Large Hadron Collider is a Doomsday Machine, sues to stop the apocalypse

Posted by Fred on March 28, 2008

061229_lhc_hmed_6p

 

Proving that a little scientific knowledge is a dangerous thing and that a lawyer with a little scientific knowledge is an even more dangerous thing, safety gadflies Walter Wagner (described as a former nuclear safety officer – no word whether he ever worked in Springfield or whether he is a big fan of donuts) and Luis Sancho have filed suit in Hawaii to stop the Large Hadron Collider, a scientific facility under construction on the French-Swiss border:

The suit calls on the U.S. Department of Energy, Fermilab, the National Science Foundation and CERN to ease up on their LHC preparations for several months while the collider’s safety was reassessed.

“We’re going to need a minimum of four months to review whatever they’re putting out,” Wagner told me on Monday. The suit seeks a temporary restraining order that would put the LHC on hold, pending the release and review of an updated CERN safety assessment. It also calls on the U.S. government to do a full environmental review addressing the LHC project, including the debate over the doomsday scenario.

The LHC is hardly the first such particle collider, but don’t worry, Wagner thought previous efforts, such as the Relatavistic Heavy-Ion Collider, were apocalypses in a bottle, too.  It’s not clear why these defenders against science think a US federal court in Hawaii should have jurisdiction over CERN (the tenuous jurisdictional thread relies on the magnets for the collider, which are produced by Illinois-based Fermilab), nor why they think this particle collider will destroy all matter in the universe when the previous fifty years of such experiments have failed to do so.  Hopefully, the courts will throw them out on their ears.

Documents related to the case have been posted on the paranoid meeting space LHC Concerns, which leads one to ever more entertaining rants, such as one from “Agent 1266” comparing the LHC to a suicide bomber:

in regards to my dialogue/conversation(s) with f.b.i. and u.s. secret service offices of pensacola, fla. on jan. 18th, 2008 and my claim under the federal false claims act. I, agent 1266, of Milton, Fla.  do hereby further reiterate claim of my rights under the federal false claims acts/titles/laws/statutes/subsections and provisions in regards to the fact that Nasa and The National Science foundation has fraudulently claimed that CERN’s LHC super cooled magnets are colder than space when in fact they are NOT. I claim these rights as a documented disabled american citizen in relation to the americans with disabilities acts, titles, laws, statutes, subsections and provisions as set forth by the Department of Justice  pertainant to aforementioned rights aforded me under my constitutional “we the people” and “e pluribus unum” rights which we find under “U. S. Constitution”.  Disparage of which exists in substantial and prima facie evidence form shall also be substantiated by TCP|IP packet dumps in place/use at time of aforementioned dialogue with said f.b.i. agent, contrary notwithstanding…

NASA scientists/ websites/ research claims that LHC’s super cooled magnets are colder than space when they are in FACT NOT the coldest place in space due to the FACT that the boomerang nebula IS in FACT known to be at 1 kelvin…altho 0 kelvin is a theoretical temperature and not at all proven in FACT: It is a documented FACT that scientists can agree that 1 kelvin IS colder than 1.9 kelvin. If Large Hadron Collider super cooled magnets are claimed to be (fraudulently/criminally) colder than space at 1.9 kelvin; then how is 1.9 kelvin colder than ‘1’ kelvin?…the temp. of the boomerang nebula…

These rights and claims are regarding the FACT(s) that NASA and other u.s. agencies, including but not limited to; the national science foundation.,etc, has fraudulently claimed and/or channeled money into CERN based on the FACT that the temperature of space is in FACT not FACT but theoretical based data…Many who oppose CERN and the Large Hadron Collider argue that the machine IS going to destroy the world when it goes online this May 2008. Evidence on this page substantiates opponents arguments based on FACTS not mere ‘theory’…Physicists at RHIC in Brookhaven, New York have already potentially imposed the death sentence on us all by creating a blackhole in 2005…Are we going to sit idly by while similar experimentation/negligence is allowed to continue?

Posted in law, Science | Tagged: , , , , , , | 4 Comments »

Sony announces Musicpass, the Betamax of digital music

Posted by Fred on January 7, 2008

musicpass_cards_pr.jpg

Last week, Sony made minor news (call it a newslet) by finally joining the Release a Tiny Portion of their Music Catalog as MP3s Party, becoming the final major label to sell music without DRM.  This week, Sony announced the details of their new Musicpass service, and it just may be the dumbest idea ever to come from Sony, which is saying a lot. Want to download a song via Amazon or iTunes? Nope, because that would actually make sense.  Instead, you’ll have to schlep down to a bricks and mortar store and buy a Platinum Musicpass gift card for $12.99 or $19.99, take the card home, scratch off a little strip, go to the Musicpass site and input the code heretofore hidden by said little strip, and then download the songs and “exclusive bonus content.”

Sounds incredibly stupid, no?  But wait, there’s more.  You can’t buy the gift cards online, you have to have the little plastic rectangle.  You can’t send a gift electronically – maybe Sony’s getting a kickback from Hallmark for all the cardboard rectangles people will buy to send the plastic rectangles as gifts.  If you do buy a Musicpass card, it’s not just for $12.99 worth of digital tunes, it’s for a specific album.  That means there are no singles, and the gift card suddenly became 97% more useless as a gift.

Let’s presume you manage to find an album you want among the 37 available at launch, say Britney Spears’ Blackout or Barry Manilow’s The Greatest Songs of the Seventies. You could go down to Best Buy and drop $12.99 on the gift card, jump through all the hoops Sony has placed in your path, and import the MP3s into iTunes.  Or you could just buy the CDs for $12.99 or $13.99, stick the disc in your computer and let iTunes create its own DRM-less files.  You’d lose the “exclusive bonus content” but gain a handy plastic disc to use as backup or turn into a Christmas tree ornament or coaster.  Of course, in doing so, Sony would say you’ve stolen a copy.

It’s hard to envision the target market for this service, which makes one suspect Sony engineered it to fail.

Customer: That’s stupid.

Sony: Look, we didn’t make any money from our MP3 service, which just proves that people are thieves at heart who need to be held back with new laws. Or rootkits.

Customer: But your service is stupid, and could be improved by a bunch of blind, deaf monkeys typing their new business plan on manual typewriters lacking the letters “s” and “e”.

Sony: Thief!

[via BB Gadgets or Download Squad, I can’t remember which because the utter stupidity of Sony’s plan has broken my brain]

Posted in law, Music, Technology | Tagged: , , , , , , , | Leave a Comment »

Does the RIAA believe personal copying is legal? No.

Posted by Fred on January 4, 2008

There’s been a bit of a kerfuffle lately regarding some statements made by the record industry in a brief filed in their case against Jeffrey Howell.  The plaintiffs in that case said that “[o]nce Defendant converted Plaintiffs’ recording into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs.” Marc Fisher at the Washington Post interpreted that statement to mean that the industry believes that the act of converting your own CDs to MP3s is an unauthorized use.  Others, notably Mike Masnick (notable given his continuing battle against old business models, which inherently includes a lot of criticism of the RIAA), argued that Fisher got it wrong, and what the industry really meant was that placing the MP3s in a shared folder accessible to the world was an unauthorized act.  To wit, rip all you want, just don’t share.

Fisher refused to back down.  The RIAA refused to clarify its position.  Yesterday, Fisher and RIAA President Cary Sherman appeared together on NPR to discuss the issue.  As one would expect in any battle of wits between a lobbyist and a print reporter, Sherman had a decided advantage.  CNET’s Greg Sandoval, himself a former Post reporter, says that the RIAA shredded the Washington Post story in the on-air debate:

But as numerous bloggers and copyright experts have noted, the quotes cited by Fisher are incomplete. Fisher wrote that the RIAA had argued in the brief that MP3 files created from legally bought CDs are “unauthorized copies” and violate the law.

“The Post picked up one sentence in a 21-page brief and then picked the part of the sentence about ripping CDs onto the computer,” Sherman said during the radio show. “(The Post) simply ignored the part of the sentence about putting them into a shared folder.”

The “shared folder” omission is at the center of what’s wrong with Fisher’s story. Anyone who reads the brief can see that the RIAA says over and over again what it considers to be illegal activity: the distribution of music files via peer-to-peer networks.

Sandoval says that Sherman missed a golden opportunity to clarify the RIAA’s position.  In his follow-up post, Masnick agrees with Sandoval.  And indeed, when asked directly whether it is legal for an individual to make MP3 copies of his or her own CDs, Sherman refused to answer the question, arguing that copyright law is too complex for such a simple statement.  Sherman went on to claim that the RIAA’s record is clear — “Not a single (legal) case has ever been brought (by the RIAA against someone for copying music for personal use) … Not a single claim has ever been made.”

So what’s the truth? As usual, it’s somewhere in the middle.  Fisher is almost certainly wrong about the Howell brief, which was inelegantly worded, to say the least.  That case follows the RIAA’s pattern – Howell shared some songs, so the record labels sued him.  Rather than prove that anybody actually downloaded the songs, they rely on proof that he put them in his shared folder.  Whether ripping the songs to MP3 was legal is essentially irrelevant, given that sharing the material via Kazaa certainly isn’t.  But as usual, the RIAA is being disingenuous, and Sandoval and Masnick have gone too far in claiming the record industry believes that converting your own CDs to MP3 is a legal use.

So what does the RIAA actually believe? Go to their site, and you can get the industry’s take on The Law.  Included there is a list of ways you can break the law, with horrendous consequences (Do the Crime, Do the Time…).  The list includes this nugget:

You make an MP3 copy of a song because the CD you bought expressly permits you to do so. But then you put your MP3 copy on the Internet, using a file-sharing network, so that millions of other people can download it.

That’s entirely consistent with the Sandoval/Masnick view of the Howell brief – it’s the file sharing that’s the problem, not the ripping.  But note what the RIAA also says – it was OK to make the MP3 because the CD you bought expressly authorizes you to do so. That is, you don’t have a legal right to make the MP3; the industry granted you a right via the terms of the CD license (remember that in the industry’s view, you don’t own the song, you own a license to play the song).  What the RIAA grants, it can take away.

Later on that page, the RIAA says that you do have a legal right to “copy music onto an analog cassette, but not for commercial purposes.”  They don’t say that this legal right comes from the Audio Home Recording Act, enacted in 1992 as a means to permit electronics manufacturers to produce digital recording devices without fear of RIAA lawsuits.  The RIAA also says that you have a legal right to “copy music onto special Audio CD-R’s, mini-discs, and digital tapes (because royalties have been paid on them) – but, again, not for commercial purposes.”  That’s also a right granted by the AHRA.

So what about MP3s or songs burned onto discs that you haven’t paid the RIAA extra for?

Beyond that, there’s no legal “right” to copy the copyrighted music on a CD onto a CD-R. However, burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns so long as:

  • The copy is made from an authorized original CD that you legitimately own
  • The copy is just for your personal use. It’s not a personal use – in fact, it’s illegal – to give away the copy or lend it to others for copying.

Ah, so the RIAA position becomes clearer.  You don’t in fact have a right to transfer your own CDs onto your iPod.  Rather, this particular unauthorized use “won’t usually raise concerns.”  This is absolutely consistent with the industry’s longstanding view that making recordings at home is illegal but unenforced.  If the RIAA believed that home copying was legal, we wouldn’t need the AHRA. We wouldn’t have had lawsuits against Sony for the DAT and Minidisc or against Diamond for the MP3 player.

What the record industry really wants is for you to pay again for every copy of a song in a new medium. Pay for the CD, pay again for the download, pay again for the ringtone, pay for using Pandora, pay for using XM.  They were able to extract this concession from Sony in 1992, but customers have gotten around paying twice by using data CDs instead of more expensive (but identical) audio CD-Rs.  They were able to extract a concession from Microsoft with the Zune, but Apple has refused to pay a tribute to our RIAA masters.  They’ve tried to get mandatory royalties from Congress, but have thus far been unsuccessful.  What they haven’t done is sue individuals for making personal copies not expressly authorized by the AHRA. Yet. Sony’s Jennifer Pariser let the industry’s real position out of the bag when she testified that “when an individual makes a copy of a song for himself, I suppose we can say he stole a song.”  Sherman now says that Pariser misspoke because she misunderstood the question, but the question really wasn’t hard to understand – any lawyer worth the parchment her diploma is printed on should have understood it. Certainly she misspoke, but not because she misunderstood – she misspoke because that particular view is not yet ripe for public discussion.

The bottom line really is simple.  The RIAA does not believe you have a legal right to transfer songs to your MP3 player.  You only have that right for media that the RIAA gets its racketeering cut from.  But the RIAA recognizes (a) that suing individuals for making personal copies would be a public relations disaster, and (b) any such claims would likely result in legislation making such copying explicitly legal, which would take away a justification for mandatory royalties from electronics manufacturers.  All they really want is to get paid over and over again.  How they get there is immaterial.

Posted in law, Music, Technology | Tagged: , , , , , , , | 1 Comment »

New developments for the West Memphis 3

Posted by Fred on October 30, 2007

pl_cover.jpgBefore the Jena 6, there was the West Memphis 3.  Jason Baldwin, Jessie Misskelley and Damien W. Echols were convicted in Arkansas in 1994 of the brutal murder and mutilation of three eight-year-old boys. Prosecutors portrayed the defendants as black-shirted Satanists who enjoyed heavy-metal music and ritual sacrifice. Defenders say the three were railroaded by overzealous prosecutors and townspeople afraid of their taste in clothes, taste in music (the cover of Metallica’s Master of Puppets was introduced as an exhibit at trial) and general outsiderness. It does seem clear that the “confessions” were suspect at best, particularly that of Misskelley. The case spawned two excellent documentaries, Paradise Lost: The Child Murders at Robin Hood Hills and Paradise Lost 2: Revelations.

Watching the documentaries, I certainly came away thinking that (a) Echols was severely troubled and ill-served by the school system and local social service infrastructure and (b) the three may have been guilty of something, but the murder case was a pile of stinking monkey feces fueled by the same sort of Heavy Metal Hysteria that blamed Don’t Fear the Reaper for suicide in the 1980s or Marilyn Manson in the 1990s. It seemed inevitable that new evidence would come to light or the system would reconsider, but if anything local opinion became even more firmly entrenched over the next 13 years. Now comes word of a defense filing calling the original case into serious question:

In 1994, three teenagers in the small city of West Memphis, Ark., were convicted of killing three 8-year-old boys in what prosecutors portrayed as a satanic sacrifice involving sexual abuse and genital mutilation. So shocking were the crimes that when the teenagers were led from the courthouse after their arrest, they were met by 200 local residents yelling, “Burn in hell.”

But according to long-awaited new evidence filed by the defense in federal court on Monday, there was no DNA from the three defendants found at the scene, the mutilation was actually the work of animals and at least one person other than the defendants may have been present at the crime scene….There was no physical evidence linking the teenagers, now known as the West Memphis 3, to the crime.

One hopes the barely luminescent glow off in the distance is the light at the end of the tunnel for these boys, but it seems unlikely that anyone but the court can save them now. Luckily, Echols sits on death row still, so if they are to be freed it’s not too late.

ico_shoutbox.gifvia Hit & Run

Posted in law | Tagged: , , , , | 1 Comment »