October 7, 2015

The enigma of the Trans-Pacific Partnership

Filed under: Economics — Tags: , , , , — Nicholas @ 05:00

We don’t know what’s in it, so it could be a multi-national version of “we have to pass it to find out what’s in it”. Megan McArdle manages to raise one cheer for the agreement:

I’ve spent the morning reading about the Trans-Pacific Partnership. I went in prepared to deliver a column full of details, winners and losers, strong opinions about the good provisions and the bad. But what really comes to mind is a dismal thought: “Is this the best we can do?”

Oh, yes, I know the statistics. Forty percent of the world’s economy. Thousands of tariffs falling. I know the opposition points too, about giveaways to business, intellectual property rules, outsourcing jobs. No one is talking about the larger story, though, which is that the biggest trade news in a decade involves a regional deal of relatively limited impact.

It was not always thus. When I was a fledgling journalist, a wee slip of a thing, we economics writers looked to major global trade negotiations to advance the cause of freer markets, and not incidentally, the material progress of mankind. We looked down on regional side-deals because they were such weak tea compared with the robust brew of a global agreement. Regional deals distorted the flow of trade, encouraging people not to exploit comparative advantage and production capabilities, but rather to seek the best combination of tariff rules from among competing regional frameworks. I have heard arguments that such deals, by distorting trade and weakening the pressure to make global deals, were actually worse than doing nothing. Indeed, I may have made such arguments.

You don’t hear those arguments any more, and that’s because we free-traders have largely given up on global trade agreements. The Doha round of World Trade Organization talks collapsed in the face of European agricultural protectionism and intransigence among countries with large numbers of subsistence farmers. Nativism, protectionism, nationalism seem to be rising as a political force in many countries. Global trade volumes are looking anemic. In this climate, regional agreements seem attractive, in much the same way that the remaining bar patrons assume a winsome glow around closing time.

How have things come to such an unpretty pass?

August 6, 2015

Michael Geist on the latest TPP leaks

Filed under: Cancon, Economics, Law, Politics — Tags: , , , , — Nicholas @ 04:00

As you’d expect from a set of negotiations — secret negotiations, at that — what the politicians say about it doesn’t necessarily have much to do with reality:

KEI this morning released the May 2015 draft of the copyright provisions in the Trans Pacific Partnership (copyright, ISP annex, enforcement). The leak appears to be the same version that was covered by the EFF and other media outlets earlier this summer. As such, the concerns remain the same: anti-circumvention rules that extend beyond the WIPO Internet treaties, additional criminal rules, the extension of copyright term, increased border measures, mandatory statutory damages, and expanding ISP liability rules, including the prospect of website blocking for Canada.

Beyond the substantive concerns highlighted below, there are two key takeaways. First, the amount of disagreement within the chapter is striking. As of just a few months ago, there were still many critical unresolved issues with widespread opposition to (predominantly) U.S. proposals. Government ministers may continue to claim that the TPP is nearly done, but the parties still have not resolved longstanding copyright issues.

Second, from a Canadian perspective, the TPP could require a significant overhaul of current Canadian law. If Canada caves on copyright, changes would include extending the term of copyright, implementing new criminal provisions, creating new restrictions on Internet retransmission, and adding the prospect of website blocking for Internet providers. There is also the possibility of further border measures requirements just months after Bill C-8 (the anti-counterfeiting bill) received royal assent.

Given the extensive debate on copyright during the 2012 reforms, the TPP upsets the balance the Canadian government struck, mandating reforms without public consultation or debate. The government has granted itself the power to continue to negotiate the TPP during the election period, but all the major parties should publicly declare where they stand on these issues.

July 13, 2015

Do photographers have any rights left?

Filed under: Bureaucracy, Law, Liberty — Tags: , , , , — Nicholas @ 03:00

I no longer do much in the way of “serious” photography (my digital SLR has been out of service for a couple of years now), but I still occasionally do a bit of cellphone photography when the occasion arises. On the byThom blog, Thom Hogan provides a long (yet not exhaustive) list of things, places, and people who are legally protected from being photographed in various jurisdictions … and it gets worse:

Funny thing is, smartphones are so ubiquitous and so small, many of those bans just aren’t enforceable against them in their natural state (e.g., without selfie stick), especially if they’re used discriminatingly.

I’m all for privacy, but privacy doesn’t exist in public spaces as far as I’m concerned. Indeed, I’d argue that even in private spaces (malls, for example), that if you’re open for and soliciting business to the public, you’re a public space. As for Copyright, placing artwork in open public spaces (e.g. Architecture) probably ought to convey some sort of Fair Use right to the public, though in Europe we’re seeing just the opposite start to happen. FWIW, I no longer visit and thus don’t photograph in two countries because of national laws regarding photography. Be careful what you wish for, Mr. Bureaucracy; laws often have unintended consequences. As in reducing my interest in visiting your country.

About half of this site’s readers actively practice some form of travel photography, either during vacations or while traveling for business. Note how many of the restrictions on photography start to apply against those that are traveling (locally or farther afield). It’s always easy to impose laws on people who don’t vote for you. it’s why rental car and hotel room taxes are so high, after all.

What prompted this article, though, wasn’t any of the latest photography ban talk, though. Here in Pennsylvania we have fairly restrictive regulations on “recording” another person (e.g. conversations, phone calls, meetings, etc.). In some states, it only takes one party to consent for a recording to be legal. Here in Pennsylvania it takes all parties to consent to being recorded.

H/T to Clive for the link.

June 22, 2015

Are software APIs covered by copyright?

Filed under: Business, Law, Technology — Tags: , , — Nicholas @ 03:00

At Techdirt, Mike Masnick looks at a recent Supreme Court case that asks that very question:

The Obama administration made a really dangerous and ignorant argument to the Supreme Court yesterday, which could have an insanely damaging impact on innovation — and it appears to be because Solicitor General Donald Verrilli (yes, the MPAA’s old top lawyer) is absolutely clueless about some rather basic concepts concerning programming. That the government would file such an ignorant brief with the Supreme Court is profoundly embarrassing. It makes such basic technological and legal errors that it may be the epitome of government malfeasance in a legal issue.

We’ve written a few times about the important copyright question at the heart of the Oracle v. Google case (which started as a side show to the rest of the case): are software APIs covered by copyright. What’s kind of amazing is that the way you think about this issue seems to turn on a simple question: do you actually understand how programming and software work or not? If you don’t understand, then you think it’s obvious that APIs are covered by copyright. If you do understand, you recognize that APIs are more or less a recipe — instructions on how to connect — and thus you recognize how incredibly stupid it would be to claim that’s covered by copyright. Just as stupid as claiming that the layout of a program’s pulldown menus can be covered by copyright.

The judge in the district court, William Alsup, actually learned to code Java to help him better understand the issues. And then wrote such a detailed ruling on the issue that it seemed obvious that he was writing it for the judges who’d be handling the appeal, rather than for the parties in the case.

May 28, 2015

The copyright fight over Sherlock Holmes … again

Filed under: Books, Britain, Law — Tags: , — Nicholas @ 05:00

At Techdirt, Mike Masnick explains why the estate of Sir Arthur Conan Doyle is still trying to fight the public domain availability of anything Sherlock Holmes, even though they’ve lost at each stage of the legal proceedings:

And thus, Sherlock Holmes is considered to be mostly in the public domain. One might argue that a US federal court outside of the 7th Circuit might find otherwise, but it appears that the Estate has given up the fight and now will readily admit that the earlier works are in the public domain. That does not mean, however, that it is done suing. Not at all. The Estate has now sued over a book and movie that purport to tell the story of Holmes’ retirement. The author, Mitch Cullin, wrote the book A Slight Trick of the Mind about a decade ago, and that’s now been adapted into a film called Mr. Holmes, being released by Miramax.

First, the Conan Doyle Estate at least seems willing to admit that the earlier works are now fully in the public domain:

    The first fifty of Conan Doyle’s Sherlock Holmes short stories and novels are in the public domain. But the last ten of his original Sherlock Holmes stories, published between 1923 and 1927 (the Ten Stories), remain protected by copyright in the United States. These copyrighted ten stories develop the details of Holmes’s fictional retirement and change and develop the character of Holmes himself.

And that’s where the trouble comes in. The Conan Doyle Estate makes some reasonable claims that Cullin used a few details from the stories that are still under copyright in developing the ideas for his book and the subsequent movie (where he worked on the screenplay). As the complaint notes, the public domain works mention Sherlock Holmes’ retirement just twice, without that much detail. The works still under copyright delve into it much more. The complaint also notes some pretty clear similarities in certain scenes. For example, it points to this passage from the (still under copyright) Holmes story “Blanched Soldier”:

    It is my habit to sit with my back to the window and to place my visitors in the opposite chair, where the light falls full upon them. Mr. James M. Dodd seemed somewhat at a loss how to begin the interview. I did not attempt to help him, for his silence gave me more time for observation. I have found it wise to impress clients with a sense of power, and so I gave him some of my conclusions.

    “From South Africa, sir, I perceive.”

    “Yes, sir,” he answered, with some surprise.

And contrasts it with the following from Cullin’s work:

    As was my usual custom, I sat with my back to the window and invited my visitor into the opposite armchair, where — from his vantage point — I became obscured by the brightness of the outside light, and he — from mine — was illuminated with perfect clarity. Initially, Mr. Keller appeared uncomfortable in my presence, and he seemed at a loss for words. I made no effort to ease his discomfort, but used his awkward silence instead as an opportunity to observe him more closely. I believe that it is always to my advantage to give clients a sense of their own vulnerability, and so, having reached my conclusions regarding his visit, I was quick to instill such a feeling in him.

    “There is a great deal of concern, I see, about your wife.”

    “That is correct, sir,” he replied, visibly taken aback.

Certainly a similar setup, but is it infringing? That’s where things get pretty tricky, and why I still have trouble with the idea of using copyright to cover “a character.” After all, copyright is supposed to only protect the specific expression, rather than the idea. That’s why it’s never made sense to see courts accept the idea that someone writing a different story using the same characters should be seen as infringing. The courts here seem to handle different cases differently, allowing something like The Wind Done Gone (a retelling of Gone With The Wind from another character’s perspective) but not allowing Coming Through the Rye, an unauthorized sequel to Catcher in the Rye. For reasons that are not entirely clear, judges seemed to feel that The Wind Done Gone was more acceptable as a commentary on the original, rather than just a new work building off of the original.

May 9, 2015

Every time you extend copyright terms, you reduce the availability of our musical heritage

Filed under: Business, Cancon, Law — Tags: , , — Nicholas @ 03:00

Michael Geist on the negative aspects of the Canadian government’s surprise extension of copyright terms:

The government yesterday tabled its budget implementation bill (Bill C-59), which includes provisions to extend the term of copyright for sound recordings and performances. The extension adds 20 years to the term (to 70 years). It also caps the term at 100 years after the first fixation of the sound recording or performance. The change is not retroactive, so sound recordings currently in the public domain will stay there. The government’s unexpected decision to extend the term of copyright for sound recordings and performances will not only cost consumers by reducing competition and stop cheaper, legal music alternatives from coming to the market – but it will also reduce access to Canada’s music heritage.

This is the inescapable conclusion based on studies elsewhere, which find that longer copyright terms discourage re-issuing older releases, which often means that the musical heritage is lost. For example, Tim Brooks conducted a detailed study in 2005 on how copyright law affects reissues of historic recordings. He concluded that longer copyright terms significantly reduce public access. First, he examined the data in the United States, which at the time had the longest term of protection:

    our analysis shows that rights-holders have reissued – or as a practical matter allowed legal access to – only a small fraction of the historic recordings they control. Overall, 14 percent of listed pre-1964 recordings were found to be available from rights holders, mostly from the 1940s, 1950s and early 1960s. The figure drops to ten percent or less for most periods prior to World War II, and approaches zero for periods before 1920. This study focused on recordings in which there is demonstrated interest; it is likely that the percent of all recordings that have been reissued is even less.

March 28, 2015

Is Clean Reader a form of censorship?

Filed under: Books, Business, Law, Liberty, Media — Tags: , — Nicholas @ 03:00

Charles Stross and Cory Doctorow are both professional writers, both write science fiction and near-future stories along with contributing to magazines and other publications. They both have strong feelings about a new app called Clean Reader, which “sanitizes” eBooks by bowdlerizing the text on the fly to allow sensitive (or neo-Victorian) readers to avoid getting the vapours by being exposed to foul language. Charlie thinks this violates the writer’s Moral rights:

Mangling an author’s text is a clear violation of the author’s Moral rights, an element of copyright which is very weak in the United States and very strong elsewhere (primarily in civil law jurisdictions). (The moral right is the right of an author to be identified as the creator of a work, and for the work represented as their creation to be unaltered by other hands, so that the relationship between creator and created work is clear.) Mangling an author’s text may be legal or illegal in the USA, depending on whether it occurs before or after sale. After all, I can’t stop you buying one of my books and editing it with a sharpie: it’s a physical object and according to the first sale doctrine, it’s yours to do with as you wish. I may be able to legally stop you modifying an ebook, though: ebooks are not sold but a limited license to download and use them is granted in exchange for money — a fine legal distinction that was borrowed from the software business’s tame sharks — and that limited license may permit or deny such usage.

Clean Reader claim to get around this by (a) being a licensed distributor (they provide the app and sell books for it sourced from PageFoundry, a distributor who back-end onto various publishers), and (b) the censorship is performed on the reader device by the reader app, once the book has been purchased and downloaded. There’s a bunch of case law around whether or not it’s legal to do this to movie rentals or downloads, or legal to skip advertisements in recorded programming on your TiVo—it gets murky fast. But let’s suppose they’re right and what they’re doing (“protect the children! At any cost! From naughty words like ‘breast’ and ‘fuck’!”) is legal.

Speaking as an author who deeply resents the idea of his books being mutilated to fit the prejudices of a curious reader’s blue-nosed and over-protective parents (hint: I write for adults — if you don’t think my books are suitable for your or your child’s tender eyes, don’t buy them), what can I do about this?

On the other hand, Cory also hates it but will “defend to the death your right to censor”:

It’s a truism of free expression that if you only defend speech you agree with, you don’t believe in free expression. That doesn’t mean you have to defend the content of the expression: it means you have to support the right of people to say stupid, awful things. You can and should criticize the stupid, awful things. It’s the distinction between the right to express a stupid idea, and the stupidity of the idea itself.

I think Clean Reader is stupid. I think parents who want to ensure that their kids don’t see profanity have fucked up priorities.

I think readers should be allowed to skip my foreword and author bio. I think they should be able to search out their favorite passages and read them out of order.

I think racist readers should be allowed to make an index of “scenes that racists find disturbing,” so that other racists can avoid them. I think those racists are fools and worse for doing it, and I will condemn them if they do. I just won’t say they’re not allowed to do it. A rule that says this kind of list is prohibited would also prohibit a the same list, compiled by anti-racist activists, under the heading, “Scenes with which to annoy racists.”

Shortly after putting this post together on Friday, I got a link from John Lennard to this article in the Guardian:

The Clean Reader app, launched by a couple in Idaho in the US, has announced that after significant feedback from authors, many of whom did not want their work being sold in connection with the app, it has “taken immediate action to remove all books from our catalogue”.

Clean Reader set out to enable customers to, in its own words, “read books, not profanity”. A filter could be applied to ebooks purchased from its online store, which exchanged words that were judged to be offensive with alternatives.

Profanities such as “fucking” and “fucker” became “freaking” and “idiot”, “hell” became “heck” and “shit” became “crap”, according to an analysis of the app by Jennifer Porter. It was not only swear words that Clean Reader scrubbed out of books: Porter, who ran a series of romance novels through the app, found that body parts were also replaced. “Penis” became “groin”, “vagina” was swapped for “bottom” and “breast” changed to “chest”. Exclamations such as “Jesus Christ” became “geez”, “piss” became “pee”, “bitch” became “witch” and “blowjob” was switched with the euphemistic “pleasure”.

Update: Added the link to Cory Doctorow’s post at Boing Boing.

February 14, 2015

Fan fiction’s greatest breakout hit (so far)

Filed under: Books, Business, Law, Media — Tags: , , — Nicholas @ 03:00

Jonathan Band talks about “fifty shades of fair use” and how E.L. James found wealth and fame after filing off the serial numbers and rebranding her fan fiction:

Fifty Shades of Grey, which is being released this Friday just in time for Valentine’s Day, is sure to be one of the top grossing films of the year. Depending on your point of view, fair use is to blame — or thank — for the existence of the Fifty Shades franchise.

The movie is based on the three erotic Fifty Shades novels, which have dominated (pun intended) book sales for the past three years. Over 100 million copies of the novels have been sold, the first novel of the series has been on the New York Times bestseller list for 140 weeks, and the novels have been translated into 51 languages. And to make sure that no dollar is left behind, Target just began distributing a line of Fifty Shades sex toys to coincide with the film’s release. Similarly, Vermont Teddy Bear is offering a Fifty Shades of Grey Teddy Bear, featuring smoldering eyes, a suit and satin tie, a mask, and mini handcuffs.

The British author of the series, E.L. James (a pseudonym for television executive Erika Mitchell), originally wrote the trilogy as fan fiction of Stephanie Meyer’s popular Twilight series, and posted it in installments on the fan fiction site FanFiction.net under the title Master of the Universe. Some of the readers complained that it was too racy for the site, which tries not to host adult content, so James moved it to a website she created, FiftyShades.com. At some point the popularity of the story must have convinced James of its potential commercial value, so she eliminated the potentially infringing references to Twilight characters and plotlines while retaining her original bondage/discipline, dominance/submission, and sadism/masochism themes. She divided this revised version into three novels that were published as e-books by an Australian virtual publisher.

February 10, 2015

Edmund Curll, “printer, pirate, and pornographer”

Filed under: Books, Britain, History, Law, Media — Tags: , , , — Nicholas @ 03:00

Sherwood Smith and Rachel Manija Brown, guest-posting at Charlie’s Diary, discuss a thoroughly awful man of letters:

Like now, there were ripoff booksellers masquerading among the legitimate ones, though today’s scammers (see Writer Beware) are rarely as colorful as the rascally Edmund Curll — printer, pirate, and pornographer. He stole material with flagrant disregard for copyright. As soon as some prominent person died, he collected gossip — it didn’t matter if it was true — for a biography, and if he didn’t have enough material, he made it up. Prominent people reportedly dreaded dying because of what Curll would do to them. A faint echo of the Curll treatment occurred a couple weeks ago, when Colleen McCullough’s obit started off by noting how fat and unlovely she’d been.

Curll churned out so much X-rated stuff under various guises that the word ‘Curlicism’ became synonymous with porn. Prison, a stint in the stocks, even being blanket-tossed and beaten by the boys at Westminster school not only didn’t stop him from theft and libel, he turned them all into marketing opportunities. Even when he was convicted of libel and forced to publish an apology and a promise to stop printing, his repentant words touted his latest books.

He’s best known for the twenty-year running duel with the poet Alexander Pope, from whom he not only stole, he lampooned under his own name and with sockpuppets. It began when he first pirated Pope, prompting the poet and his publisher to meet Curll at the Swan, where they slipped a mega dose of “physic” (think ExLax) into his drink. He turned that, too, into a marketing event, once he’d recovered from the extremes of ejecta; when Pope published a couple of triumphant pamphlets, claiming Curll was dead, Curl came right back with new material demonstrating that he was very much alive and up to his usual racket.

Their history — and there are other equally crazy-ass stories — remind me of the whoops and hollers of internet feuds and FAILS now, among writers, editors, publishers (some individuals wearing all three hats).

Aside from the Curlls, most booksellers, the publishers of the eighteenth century — like the editors working at traditional publishers now — were hardworking people who made careful decisions about what to publish because they were the ones fronting the costs of printing and of copyright.

The booksellers of Grub Street were all about copyright. For most of the eighteenth century, they met yearly, over sumptuous dinners, to hold a copyright auction that was exclusive to the booksellers. Interlopers were unceremonious chucked out.

January 13, 2015

The mess over the new copyright rules was avoidable

Filed under: Business, Cancon, Law, Media — Tags: , , , , — Nicholas @ 07:47

Michael Geist says that the fiasco with the new Canadian copyright notice scheme was not necessary and that the minister should have paid closer attention:

Last week I posted on how Rightscorp, a U.S.-based anti-piracy company, was using Canada’s new copyright notice-and-notice system to require Internet providers to send threats and misstatements of Canadian law in an effort to extract payments based on unproven infringement allegations. Many Canadians may be frightened into a settlement payment since they will be unaware that some of the legal information in the notice is inaccurate and that Rightscorp and BMG do not know who they are.

The revelations attracted considerable attention (I covered the issue in my weekly technology law column – Toronto Star version, homepage version), with NDP Industry Critic Peggy Nash calling on the government to close the loophole that permits false threats. Nash noted that “Canadians are receiving notices threatening them with fines thirty times higher than the law allows for allegedly downloading copyrighted material. The Conservatives are letting these companies send false legal information to Canadians in order to scare them into paying settlements for movies or music no one has even proved they’ve actually downloaded.”

With the notices escalating as a political issue, Jake Enright, Industry Minister James Moore’s spokesman, said on Friday the government would take action. Enright said that “these notices are misleading and companies cannot use them to demand money from Canadians”, adding that government officials would be contacting ISPs and rights holders to stop the practice.

January 12, 2015

If you’ve used the term “Streisand Effect”, you need to pay royalties now…

Filed under: Humour, Law, Liberty — Tags: , , , , — Nicholas @ 03:00

Techdirt‘s Mike Masnick isn’t asking for a lot, he just wants to ensure that his intellectual property is respected … in a way that ensures that his kids won’t starve in the street:

I have to admit that I had no idea that it had been 10 years since I coined the term “The Streisand Effect” until the SkepticHistory Twitter feed called my attention to it earlier this week. I had thought about saving this for the weekend “this week in history” post, but it seems worth delving into today — especially with folks like the thieves at Gawker Media putting up a whole story about it and stealing all the attention and whatnot.

So, yeah, ten years ago this week, I coined “the Streisand Effect,” which was actually on a story about how the Marco Beach Ocean Resort was all offended by the fact that Urinal.net (a site that, yes, still exists and is still being updated) had posted a photo of a urinal from the resort, and the resort insisted that it was illegal to use its name. As we pointed out, this stupid takedown request would only draw more attention, and then we wrote:

    How long is it going to take before lawyers realize that the simple act of trying to repress something they don’t like online is likely to make it so that something that most people would never, ever see (like a photo of a urinal in some random beach resort) is now seen by many more people? Let’s call it the Streisand Effect.

That last link then went back to a 2003 story about how Barbra Streisand had sued photographer Kenneth Adelman for photographing her house from a helicopter. Adelman had been photographing the entire California coastline, hoping to use it to document coastal erosion, and posted all the photographs online. Streisand got upset that her coastal home was shown, and sued. But, of course, before this, no one knew (or cared) that it was Streisand’s home. The image had been viewed six times (including twice by Streisand’s lawyers), but following the news of the lawsuit, hundreds of thousands of people went to see the photo. It was a story that stuck with me, and seemed to be repeated every few months in some form or another. So when I saw that Urinal.net threat, I just jokingly said we should call such things “The Streisand Effect.”

January 8, 2015

Copyright is to culture what salt is to snails

Filed under: Books, Business, Law, Media — Tags: , , , — Nicholas @ 02:00

Mike Masnick included a fascinating chart in this story:

New books by decade at Amazon

What it shows is that while new books are available for sale, they quickly go out of print and are basically not available — until you get down to 1923, at which point the works are in the public domain. Think of all those works that are no longer available to buy in that major gap in the middle. Heald has since updated that research to show how serious a problem this is — and demonstrating how the arguments against letting these works into the public domain make no sense. He demolishes the arguments made by some that a public domain will be either “under” or “over” exploited (yes, both arguments are made), as neither makes much sense.

It appears that copyright is doing similar damage in Europe. At the latest Chaos Communications Congress in Germany, Julia Reda, the European Parliament member from the Pirate Party gave a talk on the state of copyright law today (you can see the video here and included a similar graphic concerning books available in Europe:

The 20th century black hole

January 4, 2015

The MPAA may have found the super-enforcement tool they think they need

Filed under: Law, Media, USA — Tags: , , , , — Nicholas @ 10:09

Russell Brandom explains why a slight change of wording in a recent court case may have handed the Motion Picture Association of America (MPAA) exactly the kind of power they’ve been demanding to crack down on piracy and “infringement”:

Hollywood’s war on piracy has reached a strange impasse. While the MPAA and others have launched lawsuits against US-based infringers, reaching offshore torrent sites like Isohunt and The Pirate Bay is still a slow process, and whenever a site is taken down, others quickly pop up to fill its place. As a result, the MPAA has consistently pushed for the power to block infringing sites from the internet: first by pushing for new laws like SOPA in 2011, then through a series of novel legal tactics. The fight has pitted them against some of the most powerful companies on the web, and drawn them into a long, secret battle with Google.

But leaked documents show that Hollywood has a new secret weapon in the fight, a little-known legal venue that’s poised to take on new powers over the digital realm. It’s called the International Trade Commission, a quasi-judicial agency that regulates imported goods as they enter the country. Traditionally, that means physical goods — if you want to ship in a boatload of fake iPhones, the ITC is the agency that will stop you — but the ITC recently gave itself the power to rule on data as it crosses US borders, as a result of a complex 3D printing case. If the ruling holds, it could have huge implications for the way data moves across the global web, and give the MPAA the site-blocking powers it’s been grasping at for years.

The heart of the case is a company called ClearCorrect, which 3D prints clear plastic braces custom-designed for each patient’s teeth. Much of the technology involved in the process is already under patent, but ClearCorrect has gotten around those patents by farming out its intricate computer modeling to an office in Pakistan. That modeling violates a number of US patents — and if ClearCorrect were shipping back the resulting braces in a box, it would be a simple case: the goods would be contraband, to be stopped at the border. But instead, ClearCorrect is only transmitting digital models from Pakistan and printing out the braces in local offices in Texas. The only thing coming in from Pakistan is raw modeling data. So what’s a trade commission to do?

In April of last year, the ITC arrived at an answer with huge repercussions: stop the data at the border. The ITC is only supposed to rule on “articles,” which has usually been taken to mean physical goods, but last year’s ruling took it to include data too. That gives the ITC the power to stop ClearCorrect’s contraband braces data at the border, but it could have far greater implications. If a web service like Gmail or Facebook ends up on the wrong side of a patent dispute, the court could potentially forbid the service from transmitting data into the US until the dispute is resolved — making the cost of a losing a court battle astronomically higher. It would also require powerful new tools for monitoring data as it crosses national borders, a fundamental break from the international structure of the web. Aware of the huge issues at stake, the ITC stayed the ruling until the Federal Circuit weighs in later this year — but already, legal groups are reeling from the possible consequences.

January 2, 2015

Works that didn’t enter public domain, thanks to copyright extension

Filed under: Books, Law, Media, Science, USA — Tags: , , , — Nicholas @ 02:00

The Center for the Study of the Public Domain (at Duke Law), lists some of the better-known works that should have become public domain in the United States this year, except for the extension of copyright terms:

Works from 1958 that won't enter public domain

Current US law extends copyright for 70 years after the date of the author’s death, and corporate “works-for-hire” are copyrighted for 95 years after publication. But prior to the 1976 Copyright Act (which became effective in 1978), the maximum copyright term was 56 years — an initial term of 28 years, renewable for another 28 years. Under those laws, works published in 1958 would enter the public domain on January 1, 2015, where they would be “free as the air to common use.” Under current copyright law, we’ll have to wait until 2054. And no published works will enter our public domain until 2019. The laws in other countries are different — thousands of works are entering the public domain in Canada and the EU on January 1.

What books and plays would be entering the public domain if we had the pre-1978 copyright laws? You might recognize some of the titles below.

  • Chinua Achebe, Things Fall Apart
  • Hannah Arendt, The Human Condition
  • Isaac Asimov (writing as Paul French), Lucky Starr and the Rings of Saturn
  • Simone de Beauvoir, Mémoires d’une jeune fille rangée (Memoirs of a Dutiful Daughter)
  • Michael Bond, A Bear Called Paddington, with illustrations by Peggy Fortnum
  • Eugene Burdick and William Lederer, The Ugly American
  • Truman Capote, Breakfast at Tiffany’s
  • Agatha Christie, Ordeal by Innocence
  • John Kenneth Galbraith, The Affluent Society
  • Graham Greene, Our Man in Havana
  • Dr. Martin Luther King, Jr., Stride Toward Freedom: The Montgomery Story
  • Claude Lévi-Strauss, Anthropologie Structurale (Structural Anthropology)
  • Mary Renault, The King Must Die
  • Dr. Seuss, Yertle the Turtle and Other Stories
  • T.H. White, The Once and Future King

What a trove of books — imagine these being freely available to students and educators around the world. You would be free to translate these books into other languages, create Braille or audio versions for visually impaired readers (if you think that publishers wouldn’t object to this, you would be wrong), or adapt them for theater or film. You could read them online or buy cheaper print editions, because others were free to republish them. (Empirical studies have shown that public domain books are less expensive, available in more editions and formats, and more likely to be in print — see here, here, and here.) Imagine a digital Library of Alexandria containing all of the world’s books from 1958 and earlier, where, thanks to technology, you can search, link, annotate, copy and paste. (Google Books has brought us closer to this reality, but for copyrighted books where there is no separate agreement with the copyright holder, it only shows three short snippets, not the whole book.) You could use these books in your own stories — The Once and Future King was free to draw upon Sir Thomas Malory’s Le Morte d’Arthur (a compilation of King Arthur legends) because Malory’s work was in the public domain. One tale inspires another. That is how the public domain feeds creativity. Instead of seeing these literary works enter the public domain in 2015, we will have to wait until 2054.

December 30, 2014

How did so many episodes of Doctor Who go missing?

Filed under: Britain, History, Media, Technology — Tags: , , , , , — Nicholas @ 02:00

At Samizdata, Patrick Crozier explains how the cost of a new technology and the union work rules of the 1960s led to so many great (and not-so-great) British TV shows being lost to posterity:

Something like two fifths of the Doctor Who episodes produced before 1970 are “missing” from the BBC archive. Although it is now 20 years since I found out about it, I still find it difficult to believe that such an act of cultural vandalism was allowed to take place. But it was.

So why are so many missing? In Wiped! Richard Molesworth describes the whole sorry tale in exhaustive (and some times exhausting) detail. It begins with Doctor Whos being recorded on videotape. In the 1960s videotape was a new technology and as such, expensive. Broadcasters were understandably keen to re-use the tapes whenever they could.

Another factor in this was the deal that the BBC had made with the actors’ union Equity. Younger readers may be unfamiliar with this but in the 1960s and 1970s unions were extraordinarily powerful. The deal between Equity and the BBC meant that an episode could only be repeated for two years and after that only with Equity’s specific permission. So, you’d have a situation where after 2 years you would have videotapes that effectively could not be broadcast and an engineering department banging on the door demanding they be allowed to wipe them. As a consequence every single inch of 1960s Doctor Who was wiped. It was far from alone. Episodes of Top of the Pops, the Likely Lads, Not only but also…, Z-Cars, Til death us do part and many others met a similar fate.

In the interests of fairness I should point out that when it came to wiping TV programmes the BBC was far from the only offender. There is almost nothing left of the first season of the Avengers for instance. Or Sexton Blake. About half of the highly-rated Callan (played by Edward Woodward) is also missing. However, all the Saints and Danger Mans are still with us. Meanwhile, my understanding is that most American TV, even from the 1950s still exists.

And compounding the problem … even when the BBC wanted to get rid of old episodes of TV shows, they still held the copyrights:

One thing that particularly sticks in my craw is the fact that even after the BBC did everything in its power to destroy these episodes it still has copyright to them. This has some very peculiar effects as I shall explain.

As I said, many episodes no longer exist as films or tapes. But all the audios exist (recorded off-air by fans), as do the scripts and a large number of photographs, otherwise known as “tele-snaps”. Over the years a cottage industry has grown up assembling these disparate elements into what are known as “reconstructions”. Now, they’re not very good and they are really only for the dedicated fan – people like me in other words – but right now they are the best we’ve got. Sadly, these too are affected by BBC copyright. For many years they were only available on videotape and on a non-profit basis. The producers were wary of annoying the BBC. And then one day someone (quite reasonably you’d think) decided to start putting them up on YouTube. Oh dear, the BBC really didn’t like that. Not only did they force YouTube to take a whole load of them down but seem to have closed down the reconstruction business temporarily if not permanently. Bastards.

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