Tag: law

Patent for podcasting? Seriously?

A company you’ve probably never heard of before announced today that it has been awarded a patent on podcasting. VoloMedia was awarded U.S. Patent 7,568,213  titled "Method for Providing Episodic Media" yesterday. I think the fact that VoloMedia’s Murgesh Navar posted an entry defending the patent before anyone even knew about it underscores just how silly it is.

Here’s what Dave Winer wrote today in response:

I’m certainly not a lawyer or an expert in patent law, but it seems the work Adam Curry and I did in creating the format and protocol for podcasting, in 2001, may have inspired their "invention." It certainly predates it.

Honestly it boggles my mind how software patents are awarded. First of all, VoloMedia applied for the patent in November 2003. Why did it take nearly six years for it to be decided? It’s a cliche, but that’s an eternity on the Internet. Second of all, how could the patent office not discover prior art within those six years? It’s just ridiculous.

According to NewTeeVee, VoloMedia is in talks with Apple and TV networks, among others, “about growing the business and market.” Seriously? I hope VoloMedia fails fast. I really dislike companies that exist solely to sue other companies for violating patents they should never have been awarded in the first place. That’s exactly what VoloMedia is becoming.

For more, check out Ars Technica. Here’s to hoping that VoloMedia’s patent is invalidated.

Northern Voice 2009: Borrowed Content

I did a presentation today at Northern Voice in the “bootcamp” stream called Borrowed Content: What’s OK, What’s Not. The session was intended to cover the basics of copyright, fair use, and Creative Commons for bloggers. I didn’t really know how advanced the audience would be, so I decided to keep things simple. I didn’t talk about Bill C-61 at all, instead pointing people to Michael Geist’s blog. I tried to cover the very basics, and had two key takeaways:

  1. When in doubt, just ask!
  2. Remember the Golden Rule

Basically, if you don’t know whether or not you have permission to use a piece of content, ask the person or organization who owns the rights to it. Chances are pretty good that they’ll say yes. The golden rule is of course to treat others the way you’d want to be treated – give attribution, link where possible, and say thank you.

Here are the resources I mentioned during the talk:

Thanks to everyone who came to the talk and to the folks to contributed with questions/comments/suggestions!

Download the slides for this session

Speeding just isn't what it used to be!

Post ImageNormally when I hear someone talking about GPS, I think directions. You know, the gadget you have in your car that tells you where to turn left. Like most electronics however, there are cheap GPS units and top-of-the-line GPS units. Like the one Shaun Malone’s parents installed in his car:

GPS tracking systems like the one in Malone’s car are becoming an increasingly popular way for parents to keep tabs on their kids, an outgrowth of the initial use of such devices in car fleets and trucking. Many consumer-oriented GPS navigation systems also have these capabilities, but Malone’s was hardcore: the system would even e-mail his parents in the event that he drove too fast.

Try explaining that one when you get home! Your parents would know you’re speeding before you do!

Anyway, the great part about this story is that Shaun and his retired sheriff father are using data from the GPS unit to contest a speeding ticket:

While many GPS systems don’t log travel details extensively enough to be used as a defense against a moving violation, Malone’s car was outfitted with a device that could do just that. According to Rude, all recorded plots on Malone’s route show him to be driving under the speed limit.

Kinda takes the fun out of speeding, doesn’t it? I don’t really care if they win their case or not, but I do like it when new technology challenges the status quo!

Who knew GPS units could do so much?!

Read: ArsTechnica

Thoughts on Capitol v. Thomas

Post Image

Record labels have filed over 20,000 lawsuits related to file sharing since 2003, and the first one to go to trial received a verdict yesterday in Minnesota. The jury found defendant Jammie Thomas guilty and ordered her to pay the six record companies that sued her $9,250 for each of the 24 songs they decided to focus on.

It doesn’t take a rocket surgeon to realize that this is an extremely unfavorable outcome.

  1. The record labels will take this victory as “a validation of its “sue our fans” strategy, rather than realizing it’s finally time to try a different model.” (Techdirt)
  2. This case will have absolutely no effect on file sharing. “According to BigChampagne, an online measuring service, the number of peer-to-peer users unlawfully trading goods has nearly tripled since 2003, when the RIAA began legal onslaught targeting individuals.” (Wired)
  3. The record industry needs to stop fighting the inevitable. “Eventually, unless governments are willing to take drastic measures to protect the industry (such as a mandatory music tax), economic theory will win out and the price of music will fall towards zero.” (TechCrunch)

The case has potentially set a number of legal precedents favoring the record industry, such as “making available”, described by Declan McCullagh in his excellent analysis:

Jury Instruction 15 is more important. It says that the RIAA doesn’t need to offer any evidence that rapacious Kazaa users actually downloaded songs from Thomas’ computer. All they need to do is claim that Thomas left the songs in a publicly accessible directory where they could have been downloaded. Big difference.

Wired has more:

In proving liability, the industry did not have to demonstrate that the defendant’s computer had a file-sharing program installed at the time that they inspected her hard drive. And the RIAA did not have to show that the defendant was at the keyboard when RIAA investigators accessed Thomas’ share folder.

Also, the judge in the case ruled that jurors may find copyright infringement liability against somebody solely for sharing files on the internet. The RIAA did not have to prove that others downloaded the files. That was a big bone of contention that U.S. District Judge Michael Davis settled in favor of the industry.

That’s just wrong. Is it illegal to leave a music CD out in the open? Of course not, but anyone could come along and steal it or copy it. How is leaving music files out in the open any different? Copying media for personal use is considered Fair Use (though the RIAA is doing everything they can to change that). As I understand it, combining your Fair Use rights with an open Wi-Fi connection (the default setting on virtually all wireless routers) would then make you liable for copyright infringement, if the precedent set by this case holds.

I’m not sure the precedent will be upheld, however. Last December the judge in UMG v. Lindor ruled that the record labels would have to show that Lindor actually shared the files. Demonstrating that she made the files available for download was not enough. Actually, I’m not sure why that earlier decision was not used in this case against Thomas.

Another problem is the fine amount. I think $9,250 per song very clearly conflicts with the Eighth Amendment, which states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The songs in question are available in the marketplace for less than $1. Furthermore, wholesale pricing has been confirmed by record label executives as being close to 70 cents per track. From that perspective, the fine levied against Thomas is almost surely excessive.

These lawsuits are very clearly about money, not about protecting artists. I look forward to the day when record labels as we currently know them cease to exist. It’s only a matter of time.

There is a ton of commentary on this story at Techmeme. That’s how I found Michael Geist’s post, in which he explains the Canadian context. Definitely worth a read.

DMCA and DRM: Dumb and Dumber

Post ImageOn Wednesday I wrote that the writing is on the wall for DRM. Today over at ars technica, Ken Fisher agrees:

What makes it even more deplorable this time is that it’s now 2007, and the writing is on the wall: DRM is a failed idea, and a waste of time and money.

I don’t want to pick solely on DRM though. The Digital Millenium Copyright Act (DMCA) is just as much to blame for the whole HD-DVD key fiasco. Ken explains:

AACS LA isn’t claiming copyright protections for the key. Rather, the key could constitute a circumvention device, which makes it illegal per the DMCA. Until a court has ruled, it’s all speculation of course.

I think something has gone terribly wrong when the law makes the simple act of writing a number illegal. Bill Clinton did a lot of good things while in office, but signing the DMCA into law was not one of them (in my opinion).

The DMCA is not a real solution to the problems faced by copyright holders. DRM is essentially security through obscurity. In other words, it’s not at all secure, and once the secret has been revealed there’s no going back. Organizations like the MPAA and RIAA know this, so they look to the DMCA as a sort of fallback mechanism: “if the secret gets out, or is bypassed, we’ll just sue.”

Instead of using the DMCA to punish the potential circumvention of DRM, rights holders should be figuring out how to remove the need for DRM altogether (thus removing the desire to circumvent it). You know, like this.

Fix the business model, and the problems go away. Yes, I really do think it’s that simple.

Read: ars technica

Podcasting Legal Guide

Post ImageA new legal guide for podcasting has been released at the Creative Common site with the purpose of providing “a general roadmap of some of the legal issues specific to podcasting.” The document is quite lengthly, and while I haven’t read through it all, I did notice that it only applies to US law:

This Guide covers only US-based legal questions. Since podcasts are typically distributed world wide, legal issues from other jurisdictions are relevant for you but we are unable to include them at this time. We have released this Guide under a Creative Commons license that permits derivatives works and so we hope that practitioners in other jurisdictions will translate and adapt this Guide for their jurisdictions. Please let us know if you do by emailing podcasting@vogelelaw.com so that we can link to your version of the Guide.

Interesting project, but due to the length, I question how many people will actually read it. Tip of the hat to Geek News Central.

Read: Creative Commons

Net Neutrality

Post ImageI haven’t said much about so-called “network neutrality” yet, but I do think it is a very important issue. I don’t pretend to know all about it, but I have read enough to form some opinions. First off, here’s how the term is defined at Wikipedia:

Network neutrality is a proposed principle of network regulation. It asserts that, in order to promote innovation, network service providers such as telephone and cable internet companies should not be permitted to dictate how those networks are used (ie. not permitted to ban certain types of programs, or to ban certain types of devices connecting to the network).

Currently, this is a big political issue in the United States, but I am not sure if it has received much attention elsewhere. A draft bill scheduled to be voted on tomorrow will be revised to ensure that the FCC has tools at its disposal to address violations. This is the main idea behind the bill, at least as I understand it:

The draft bill says broadband providers must provide connectivity speeds “at least equal to the speed and quality of service” that the operator offers for its own content or that of its affiliates, and “make available the same bandwidth” to everyone.

I encourage you to read the article linked to above (at CNET News.com) as it contains some background information in addition to the current happenings.

I was a little torn between whether or not network neutrality is a good idea or not. My gut feeling and initial reactions were that net neutrality is vital for the future of the Internet, and it must be protected. As I thought about it a little more, I turned to economics, and thus my secondary thoughts were that the market should decide how these services are charged for and offered. Upon still further consideration, I feel that net neutrality is important and we should all ensure the Internet remains neutral.

There are too many “ifs” associated with a network that might become tiered or fragmented in some way – who knows what the providers might do. The last thing I would want as a business consumer is to have different Internet access, whether in performance or throughput or bandwidth, than a larger company simply because the Internet providers can squeeze large sums of money out of them.

One of the great things about the Internet is that it is open and available to everyone (I realize there are people who cannot yet afford access, or areas for which access is unavailable, but as a blanket statement, the Internet is pretty open). I think it’s important we keep it that way, so I hope laws concerning network neutrality are ratified in the United States, and eventually, elsewhere.

World War 3.0

Post ImageEven though the Microsoft anti-trust trial finished quite a while ago, I just finished reading Ken Auletta’s book on the famous case, World War 3.0: Microsoft and its Enemies. As someone who followed the case quite closely (I’m a geek, what can I say?) I can honestly say the only new stuff in the book for me was the character sketches created by Auletta of all the major players.

When following the news and opinion articles, you tend to focus on the specifics of the case and the two parties, but not the individual people themselves. World War 3.0 does an excellent job of describing David Boies, or Bill Gates, or Judge Jackson as people, including some discussion on what they do outside of the courtroom. You end up with a better sense of everyone involved.

I did have to chuckle at the fact that no where in the book’s pages is Google mentioned. Auletta spends quite a bit of time talking about Microsoft’s main competitors, and the reader is left with a sense that after the trial is over, the battle will be Microsoft versus AOL Time Warner. As we know now, the company is just Time Warner again, and they aren’t Microsoft’s main concern. Probably not even a secondary concern. Linux is correctly identified as a competitive concern, though not much time is spent talking about how the operating system could affect Microsoft. Also interesting to see how successful Firefox has become – the book doesn’t even come close to predicting that another browser might challenge IE.

While definitely an interesting read, I felt that the book was rushed in the final stages. There was far more time spent on the beginning of the case than on what might happen on appeal and thereafter. I also felt that the commentary on competition and the technology specifically was rather weak. If you’re looking for a good description of the trial, this probably isn’t the right book for you, unless you really want a better idea of the people involved. You can read more about the case at Wikipedia.

Read: Wikipedia

Is using open Wi-Fi against the law?

Post ImageYou might have heard in the news recently that “wardriving”, or using someone’s open wireless connection from your car, is once again a hot topic. It seems that a man in Florida was arrested for “hacking” into an open network connection from his vehicle. Here’s what the folks an Engadget had to say:

If stories like this one result in more users setting up WEP (and, yes, we know it’s not very secure, but it’ll block “casual” intruders) on their machines, fine. If, however, every time we open a laptop in a public place (some of which, like New York’s City Hall Park, have public WiFi access), we’re tagged as a potential criminal, something truly valuable will have been lost.

I completely agree! The problem is that the law under which the man was charged was written before anyone had considered wireless network connections. Here’s what CNET found out about the topic:

Is it legal to use someone’s Wi-Fi connection to browse the Web if they haven’t put a password on it?
Nobody really knows. “It’s a totally open question in the law,” says Neal Katyal, a professor of criminal law at Georgetown University. “There are arguments on both sides.”

The law in question, of course, is in the United States. I am not sure if Canada has something similar, though I would be willing to bet that we do. I certainly hope the matter is resolved soon, because in two years I think it will be commonplace to have entire cities covered in wireless access – assuming that WiMax equipment is manufactured sometime in the near future.

Read: Wi-Fi Alliance

Today's Digital Legalities

Post ImageSome notes from the digital law session hosted by Denise Howell, Buzz Bruggeman, and Jason Calacanis:

  • Very cool website that lets you subscribe to new patents: PatentMojo.
  • Denise: Law firms are starting to wise up to the fact that maybe they need to look at communication differently, and blogging is leading the charge.
  • Jason: If you get a letter from a lawyer, pick up the phone and call the lawyer to find out what they are really after, because the letter generally won’t tell you that. You have to try to understand their position.
  • Jason: “I force [laywers] to file papers, because it’s a significant amount of work.” Good strategy to find out how serious they are. Also, Jason says to extend discussions, because the longer you can extend them, the more likely things will go your way.
  • Denise: “Jason is a warrior on the frontlines of participatory law.”
  • Hanging up the phone is Jason’s favorite technique for dealing with attorneys.
  • You have to be careful about how you phrase things on your blog. Unless you absolutely know something to be true, phrase it in such a way that your source is clear (using words like “alleged”, “claimed”, etc). Also, if you make a mistake, be sure to update quickly. And don’t ignore comments!
  • Incorporating your blog doesn’t reduce the chances of getting sued, because filing a complaint is relatively inexpensive.
  • Jason: If you get a letter, post it on your weblog and talk about it.
  • Buzz: Don’t throw anything away.
  • Jason: If you care about a project enough to put effort into it, document it.
  • Jason: Don’t do any business deals without having everything in writing, it’s really not worth your time.
  • If you’re a podcaster looking to use some music, whether recorded or live, pay attention to the proposal recently released by the copyright office that attempts to have a one-stop shop for purchasing production licenses. Jason’s personal advice: Follow the definition of fair use, and keep the percentage of what you use down to something reasonable.
  • Denise: The problem with fair use, is that its decided on a case by case basis.
  • Jason: If it’s good enough for Google, it’s good enough for you. Denise: And it’s good enough for the 9th Circuit Court of Appeals who decided thumbnails such as the ones you would find on Google Images are fine (75 pixels by 75 pixels or less?).
  • Some related links for this talk at delicious.

Read: Gnomedex