Tuesday, 20 March 2007
PTO: P2P threatens national security
The U.S. Patent & Trademark Office apparently thought it wasn't in the headlines enough this month. On March 5, it issued a press release announcing a November 2006 report (1.22mb) which claims that P2P networks threaten national security. The logic is, at best, bad and, at worst, intentionally deceptive.
Information Week reports:
The report, which the patent office recently forwarded to the U.S. Department of Justice, states that peer-to-peer networks could manipulate sites so children violate copyright laws more frequently than adults. That could make children the target in most copyright lawsuits and, in turn, make those protecting their material appear antagonistic, according to the report.Conclusion: Software is to blame when record companies act without social responsibility. The article continues:
File-sharing software also could be to blame for government workers who expose sensitive data and jeopardize national security after downloading free music on the job, the report states.The basis for this last statement is apparently a bullet point on page 22 of the report, which quotes an unnamed and undocumented source within the Department of Homeland Security as stating: "There are documented incidents of P2P file sharing where Department of Defense (DoD) sensitive documents have been found on non-US computers with no protection against hostile intelligence services." No documentation (or even a footnote) is provided in this report, however. The PTO report does not even state who within DHS made this claim or in what context.
Email me if you're interested in the betting pool on whether this "fact" was made up by DHS or by the PTO.
Saturday, 30 October 2004
Sony BMG Music to partner with Grokster?
This morning, SiliconValley.com posted a San Jose Mercury News article ("Sony ready to join music file-sharing") claiming that Andrew Lack, President of Sony BMG Music has been negotiating quietly with Grokster "for more than a year to hammer out a distribution agreement with the file-sharing networks that have allowed millions of people to illegally download copyrighted songs." Let us hope something productive comes from this — i.e., something useful and valuable for consumers that is not overhwelmed with DRM. If so, let us also hope it does not whither in the light of day. (Via GigaLaw Daily News)
Saturday, 20 December 2003
Declan's FAQ on RIAA v. Verizon
DC Circuit stumps RIAA
By now the world has heard of the D.C. Circuit decision in RIAA v. Verizon. Previously, the D.C. District Court ruled that Verizon must comply with RIAA's subpoenas, issued under § 512 of the Digital Millennium Copyright Act (DMCA). Those subpoenas are designed to force ISPs to disclose the identities of users whom RIAA suspects of illegally making copyrighted music available for others to download. RIAA can trace users by itself as far as their IP addresses (the sets of numbers that uniquely identifies every computer on the Internet), but it needs the cooperation of ISPs to connect an IP address with an individual's name and address. Once it has that information, it can send a cease & desist letter or file a lawsuit.
Yesterday's Circuit decision reverses the District Court's interpretation of the statute. The appeals court gave the statute an extremely close reading in rendering its decision. The relevant section has a complex sentence structure and many cross references, so it is no wonder that the parties (and two different courts) disagreed as to its meaning. Derek Slater makes a few interesting points, including: "I find it fascinating when opinions contrast in this way — when they see the same issue clearly, unambiguously, but oppositely. [District] Judge Bates, just like [Circuit Judge] Ginsburg, claims to stick to the statute's text and go no further, yet their opinions are night and day."
The decision is a victory for privacy, but not a victory for privacy as such. The result was reached on a technical reading of the statute, and turned on the fact that a subpoena can only be sent if a DMCA notice-and-takedown letter can also be sent. […] The constitutional issues that would have made this a victory for privacy as such, or for freedom of expression, were not addressed by the court.
The Circuit panel adopted most of Verizon's statutory argument — that § 512(h) authorizes subpoenas only in cases where the plaintiff alleges that the infringing material is stored on media controlled by the ISP. However, when the ISP is a mere conduit for data stored on media controlled by a third party (the ISP's subscriber, in this case), § 512(h) does not permit subpoenas outside of the context of a lawsuit.
This line of reasoning rests on the cross references between § 512(h) and § 512(c). Subsection (h) permits a copyright owner to apply to the Clerk of the court for a subpoena so long as the application contains "a copy of a notification [of claimed copyright infringement, as] described in [§ 512](c)(3)(A)." The relevant language in § 512(c)(3)(A) is: "To be effective under this subsection, a notification of claimed infringement must be a written communication … that includes substantially the following" six elements. The third enumerated element is "(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material." (Emphasis added)
The court agreed with Verizon that this language requires the subpoena application to assert that the ISP has the ability to remove or disable access to the allegedly infringing material. However, most current P2P applications use a decentralized architecture. This means that all shared data is stored on users' computers, not on any central server — except for temporary copies incidental to transmission, which the DMCA permits. Therefore, the ISP has no legal right to remove or disable access to the material shared on the P2P network:
No matter what information the copyright owner may provide [in its subpoena application], the ISP can neither "remove" nor "disable access to" the infringing material because that material is not stored on the ISP's servers. Verizon can not remove or disable one user's access to infringing material resident on another user's computer because Verizon does not control the content on its subscribers' computers.
This holding does have some privacy implications, but they are small compared to Verizon's alternative argument. Having decided this case on statutory grounds, the court ducked the larger First Amendment questions.
So what implications does it have? Dozens of people predict that RIAA will lobby Congress to close what it surely sees as a loophole in the DMCA. Ernest quipped, "[T]he RIAA has nearly hosed itself." The trade group has been trying to consolidate all its DMCA subpoena litigation in Washington, D.C. for administrative convenience. Now, however, it cannot be happy with its "success" in transferring the SBC case to the D.C. District from the Northern District of California in San Francisco — because the Verizon decision is now binding precedent in the nation's capital. This will not stop RIAA from getting users' information, however. It will only make the process slower and more expensive. Instead of paying its lawyers simply to draft subpoena applications, it now has to pay them to draft and file complaints and motions in addition to subpoena applications. These costs will be passed on to consumers in the form of higher average settlements.
John Palfrey sees a broader trend: "Add this development to the Grokster opinion, and the trend of the law in favor of digital rights holders is at least in a holding pattern." The trend may be even broader than Palfrey recognizes — this was a banner week for civil liberties everywhere. (It could, however, be just a blip on the post-9/11 radar screen.) The Dutch supreme court ruled that the makers of Kazaa are not liable under Dutch law for copyright infringement committed by the software's users. A day earlier, the Second Circuit ruled that the U.S. government may not classify Jose Padilla as an enemy combatant — which should assure that his constitutional rights are no longer suspended. Just a few hours later, the Ninth Circuit wrote "that the [Bush] administration's policy of imprisoning about 660 non-citizens on a naval base in Guantanamo Bay, Cuba, without access to U.S. legal protections 'raises the gravest concerns under both American and international law'" (source).
If nothing else, we live in interesting times.
Friday, 19 December 2003
Dutch high court: Kazaa not liable
The decision by the Dutch court, the highest European body yet to rule on file-sharing software, means that the developers of the software cannot be held liable for how individuals use it. It does not address issues over individuals' use of such networks. […] The Supreme Court rejected demands by Buma Stemra, the Dutch royalties collection society, that distribution of Kazaa cease and that future versions be modified so that copyrighted materials cannot be exchanged over the network, lawyers representing Kazaa said.It looks like Matt Oppenheim, a senior vice president of RIAA, has to eat his words from March 2002. Describing the Dutch appeals court action underlying yesterday's supreme court decision, he said: "I don't think this summary decision…will have any more impact than it would have from any other country that doesn't enforce copyright law consistent with the United States." Matt, perhaps you can tell me if I spelled "jingo" correctly.
Wednesday, 17 December 2003
The last five days have brought big copyright news from the Great White North — allegedly also known as "Canada." First, the Canadian Copyright Board issued a decision levying fees on many new media and interpreting Canadian law to permit downloading (but not uploading) of copyrighted works via P2P networks. Then the National Post reported that the Canadian Recording Industry Association (CRIA) might soon begin suing file sharers, ala RIAA.
During this time, I have been reading up on CRIA's chief, Brian Robertson. While he is reluctant to discuss CRIA's lawsuit plans, he loves to talk about the number 30. That is the percentage of revenue he claims the Canadian recording industry has lost due to file sharing. As far as I can tell, he has never cited any source for this figure, and the next-highest estimate is 23% — and many estimates are even lower. Sources: CRIA press release, Globe & Mail, National Post, LA Times. Additionally, CRIA (like RIAA) fails to acknowledge that the recent recession might have had a negative effect on music sales equal or greater to the effect of file sharing.
Tuesday, 16 December 2003
CRIA Follows Big Brother's Lead
The millions of Canadians who share music files on the Internet should be prepared for the possibility of facing a lawsuit early in the new year, the head of the Canadian Recording Industry Association said yesterday. … [Brian] Robertson would not specify how many lawsuits would be filed, but he did say the legal action would be similar to the lawsuits filed in the United States. For some time, CRIA has been using software that tracks and identifies users involved in trading free music files. "Users should be aware that using file-sharing services is a very public process," Mr. Robertson said.Since Canada has no analog to the Digital Millennium Copyright Act (DMCA), it will be interesting to see whether CRIA's tracking software is anywhere near as effective as RIAA's subpoenas. Neither one, it cannot be pointed out often enough, has any judicial oversight. And both are ripe for abuse.
Update: Canadian decision on downloading
…and news coverage:
Monday, 15 December 2003
God Considers Smiting Copyright Pirates
God is considering his options for action against Bible pirates. "God did not rule out smiting as a final measure against those who share his most famous work, the Bible, on the Internet," wrote Kristian Werner of BBspot Technology News.
Citing misuse of His word, misquotation, and putting hardworking Bible printers out of work, God said he would now start hunting Bible pirating around the globe. "I have to defend both my world-famous brand — the Bible and its distinctive likenesses — and the livelihood of those who create and distribute legal copies of it. Sure, they live not by bread alone, but website hits — someone else's website mind you — don't pay the bills for these folks."
Canada deems P2P downloading legal