Monthly Archives: November 2004

critical montages complaint about ip

I always like to see non-usual-suspect rants about IP, so here’s one from critical montages [11/27] (you’ll have to go there to see the insightful links)

No Sharing

Ever notice the Waffle House menu’s insistence that Double Waffle is for “dine-in only, no sharing”? A common prohibition at low-end restaurants, it’s also a small-print reminder of what capitalism is all about.

From enclosure to enforcement of intellectual property rights, capital’s message is always No Sharing.

Products of intellectual labor, unlike land and waffles, can be shared by all without diminishing their use value for anyone, however. “Copies” are as perfect as “originals” for the most profitable products — such as drugs and software — in the age of mechanical production, withering the aura of private property and making the revolutionary act of sharing and sharing alike irresistible. Capital, of course, tries to stop it, but, in doing so, it makes visible the “invisible hand” of the market, demonstrating that it is not scarcity but state power at capital’s disposal that prevents us from having what we want — even what we need to save our lives.

defense of marriage

The Christian Right and the Sanctity of Marriage

As we all know, the Christian Right has now made defense of the institution of marriage, as defined as a union of a man and woman, not only its top political priority, but the very touchstone of Christian moral responsibility.

I’ve always found this rather ironic, since the Protestant Reformation, to which most Christian Right leaders continue to swear fealty, made one of its own touchstones the derogation of marriage as a purely religious, as opposed to civic, obligation. Virtually all of the leaders of the Reformation denounced the idea of marriage as a scripturally-sanctioned church sacrament, holding that baptism and the Eucharist were the only valid sacraments. Luther called marriage “a secular and outward thing,”which he did not mean as a compliment. Calvin treated marriage as a “union of pious persons,” and while he did consider marriage a “covenant,” he used the same term for virtually every significant human relationship.

More tellingly, throughout Protestant Europe, from the earliest days, one of the most common “reforms” was the liberalization of divorce laws. And even today, in America, conservative Protestants have the highest divorce rates of any faith community, or un-faith community.

My point is not to accuse today’s conservative Christians of hypocrisy, though there’s room for that; it’s that the Christian Right has made a habit of confusing secular cultural conservatism–the simple and understandable impulse to resist unsettling change–with fidelity to their own religious traditions. “Defending marriage” is far down the list of concerns, historically, of the Reformation tradition, and indeed, that tradition has done far more to loosen the bonds of matrimony, for good or for ill, and to “de-sanctify” the institution, than all the gays and lesbians who have ever lived. 11/19 [link from mike]

post-thanksgiving ip & info news

  • Australia & the US continue to work on the bilateral Free Trade Agreement. Australia is now set to implement a notice-and-takedown rules despite criticism of their impact in the US. [ 11/30]

  • Another due process victory — the RIAA can’t sue the nation en masse, even if they do think it’s cheaper by the dozen/gross/other large quantities. [wendy seltzer reports on the Texas case [11/27]]

  • fluffy spending bill includes funding for copyright czar. p2pnet reports that the Hollywood Reporter reports that:

    Under a “massive $388 billion spending bill Congress approved during the weekend” the president can appoint a copyright law enforcement officer whose job is to coordinate law enforcement efforts aimed at stopping international copyright infringement and to oversee a federal umbrella agency responsible for administering intellectual property law, says the Hollywood Reporter.

    The legislation is part of the bill funding Justice Department operations and for the first time funds the National Intellectual Property Law Enforcement Coordination Council, says the story, continuing ominously:

    “NIPLAC is charged with establishing policies, objectives and priorities designed to protect American intellectual property overseas and to coordinate and oversee implementation of intellectual property law enforcement throughout the government. While NIPLAC has been around since the early 1990s, it has never done anything, and appropriators hope that giving the organization $2 million and a new charter will make the office effective.”

    I like the p2pnet description of the story as “ominous”.

    You know, I know we live in the age of the imperial presidency, and we have our own domestic nobility, but why do we keep using the word czar? So annoying.

  • The wacky Dutch courts have now held that perfumes are copyrightable: They are “not only measurable by the senses but also … concrete and stable enough to be considered an authored work, as intended in copyright law”. Lancome v. Kecofa. [In this international world, I’m linking to the story in The Scotsman, 11/25.] This story was rife with interesting details including the fact that few smells have been trademarked in “this country” (Scotland? the Netherlands? unclear) except for “darts smelling of beer”. Don’t darts smell that way naturally?

    Apparently the Dutch Copyright Act of 1912 includes “works of applied art” and “generally any creation in the literary, scientific or artistic areas.”

  • ‘Tis the season: Rudolph Reserve Beer becomes Rude Elf Reserve Beer. This was described as a “copyright fight” by AP 11/25, but surely must be a trademark dispute.

  • Okay, this is not copyright, either, but trademark / right of publicity. The Nelson Mandela Foundation is upset over a plan to import gold coins with Mandela’s image on them. [South Africa, The Star, 11/23]

    What does it mean that so many people are calling all these different claims copyright? It’s like “copyright” has become the new “intellectual property.”

  • The E.D. Pennsylvania ruled on Nov. 12 that copyright management information (CMI) must be proximate to the copyrighted material. Reuse of images from a book, and removing just the copyright statement from the beginning of the book, did not constitute a violation of the DMCA’s CMI provisions.

  • Another DMCA case: Perfect10 is suing Google for indexing its copyrighted images. [complaint @ wendy seltzer’s site]

  • N.D. Cal. judge Maxine Chesney dismissed Kahle v. Ashcroft [11/24] [c|net 11/24. The Internet Archive plans to appeal.]

  • More reality show idea conflicts: This time the plaintiffs are suing TBS & Evolution Film & Tape, alleging that their development of a transgender reality show “He’s a Lady” infringes their copyright in a similar work titled “Sex Change.” They also charge breach of implied-in-fact contract and unfair competition. [businesswire 11/23]

    Oh. My. God. A, no copyright on ideas, please dismiss this claim right away, court. The article says that they “received protection from the U.S. Copyright Office” for their treatment. No ideas, no ideas, no ideas.

    B, how offensive is this:

    Both reality series are about a group of male contestants who believe they are in a competition to become an “All-American Man.” It is soon revealed, however, that they are actually going to be transformed to look and act like women and compete for a monetary prize – living together in a “doll house,” performing stereotypical female tasks and being assessed by a panel of judges – climaxing in a beauty pageant competition.

  • On the First Amendment side of things, Wired has a great new story explaining how recent Senate Commerce Committee, Science, Technology & Space Subcommittee hearings have shown that Internet porn is the worst scourge this nation has seen since CIA-sponsored heroin. [wired 11/19]

    “Pornography really does, unlike other addictions, biologically cause direct release of the most perfect addictive substance,” Satinover said. “That is, it causes masturbation, which causes release of the naturally occurring opioids. It does what heroin can’t do, in effect.”

    The internet is dangerous because it removes the inefficiency in the delivery of pornography, making porn much more ubiquitous than in the days when guys in trench coats would sell nudie postcards, Satinover said.

    Sen. Sam Brownback (R-Kansas), the subcommittee’s chairman, called the hearing the most disturbing one he’d ever seen in the Senate. Brownback said porn was ubiquitous now, compared to when he was growing up and “some guy would sneak a magazine in somewhere and show some of us, but you had to find him at the right time.”

    Thanks Sen. Brownback for sharing stories from your personal experience. As for Santinover, he is an advisor for a gay-cure group — clearly an unbiased social scientist with no axe to grind. Kudos to Wired for interviewing Carol Queen for the article.

    This all reminds me of a reading I attended some years ago, in which Susie Bright read dirty bits from the Meese Commission on Pornography report. [wikipedia; full-text] Can we have Susie Bright do all the CSpan coverage of these hearings? Please?

  • What is with the FCC these days? Or for that matter with the general government fascination with “indecency” and porn? It would take an entire company of bloggers to keep up with the stories. The mid-November indecency story du jour was the American Family Association’s [turn head to left, spit ceremoniously] attack on ABC’s broadcast of “Saving Private Ryan”, followed swiftly by the Monday Night Football skit or ad or something related to “Desperate Housewives.” Good grief. God forbid our coverage of live celebrations of violence and sexual exploitation (the cheerleaders and beer commercials) should be interrupted by, well, more sexual exploitation.

    The only good thing I saw about this recently was a report about a FOIA request to the FCC regarding its many indecency complaints regarding one of the recent TV incidents. I think there were a hundred or so total but maybe I’m off by a factor of 10? At any rate, there were fewer than the FCC actually claimed. And the really interesting thing is that almost all were form-generated. Total discrete complaints generated by spontaneous citizen outrage: 3. (now where did I see that article? sometime over the long food-stuffed thanksgiving weekend. darn darn darn. when will i remember to save these things when i see them?) [oh right: it was frank rich in the nyt 11/28 on “the great indecency hoax”]

looming challenges to federalism

i’ll be interested to see how the conservative, pro-federalism, pro-states’ rights, GOP-run government (and the conservative intelligentsia which carries their theoretical water) handles some of the upcoming challenges to federalism:

  • medical marijuana laws
  • state & regional initiatives on global warming: for instance, California’s mandatory cap on greenhouse-gas emissions will have to be signed off on by the EPA before it goes into effect

pre-thanksgiving IP round-up

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grokster cert. petition thoughts

I was sad to see how many different groups jumped in on the Grokster cert. petition (asking to grant cert). [EFF’s Grokster page] Our amicus (telling the court to deny cert) looks pretty lonely in comparison.

Our brief addresses what two of what I think are the four possible reasons to take the case. One argument to take the case: the 9th Circuit & the district court got it wrong, and there are not substantial noninfringing uses. Our brief points out that there are substantial noninfringing uses, and thus the decision falls within Sony. A second argument to take the case is that the court might wish to reconsider Sony. Our brief argues that there’s no reason to reconsider Sony; Sony is still a good decision and has many beneficial effects, and Congress and private parties can tinker with it on the edges as necessary.

Other arguments to take the case that we don’t address: Third: circuit split. We don’t take this one on but EFF did — there is no circuit split, really, although there is an apparent split in outcome on the technology. But the question, under Sony, is whether there are substantial noninfringing uses. Aimster court said there probably were noninfringing uses, but since the parties didn’t put forward any noninfringing uses, the lower court wasn’t wrong to not seek them out. Grokster said the parties put forward noninfringing uses and found them substantial. That doesn’t look like a circuit split to me.

A fourth line of argument says take it on because this is a big technology, a big deal, and it’s very important. Nothing you can really do with that argument except point out that it’ll work itself out, which it will. We don’t really address that in detail in our brief but we do address it implicitly.

The various arguments the amici & parties lay out in favor of granting cert boil down to this: (a) we really want Sony reconsidered; and (b) this is a big controversial issue.

But as to the second, IMO, newsworthiness isn’t enough of a reason to grant cert.

That leaves the first. The only reason, really, to grant cert would be if the court wants to reconsider Sony — if they do want to reconsider Sony, then I agree that would be a good reason to grant cert. I fervently hope the court does not want to reconsider Sony. Interestingly, the support-of-cert petitioners aren’t ballsy enough to actually say outright that they want Sony reconsidered. (Or at least, none of the ones I’ve read yet have said so.) So instead they’re just trying to poke holes at it and suggest that it’s not working for the Internet, or in these times, or with this new technology, whatever. Some of them argue circuit split but none do it very convincingly. The content industry briefs (including the party brief by MGM) take on the substantial-noninfringing-uses argument, basically arguing that the noninfringing uses are not substantial.

Admittedly, I’m biased, but I don’t think that overall they make a convincing case for granting cert.

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savage advice on election 04 & the next four years

Dan Savage’s 11/10 column advises us to enjoy our urban islands and hold out for midterm elections, being grateful that the Republicans will have no one else to blame but themselves.

If that doesn’t work:

But, hey, if this cold-comfort analysis is wrong, SSF, if we all live to regret the gay marriage issue coming to a head, rest assured that all the dykes and faggots out there will pay a high price for it.

What he said.

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a real circuit split: sampling

Forget Grokster, which is the entertainment industry’s attempt to get Sony reviewed & overturned, by trying to generate a circuit split out of the dicta in Aimster.

An actual circuit split in the making is on sampling, with the Beastie Boys’ 9th circuit decision today declining to reconsider its Nov. 4, 2003, decision (Newton v. Diamond) permitting sampling. [The article was published tomorrow, 11/11, in Australia, relating to a decision from today, 11/10, in California.] [iptablog 11/4] This is in contrast with the beknighted* decision out of the 6th Circuit a few months ago which held that you have to get a license to sample, period. [Bridgeport Music v. Dimension Films, 6th Cir., Sept. 7, 2004] The recording industry has asked for that decision to be reheard en banc.

* Why do I do that? I know there’s not a “k” in benighted. What, like it has to do with being granted an honorary “title” … I really find myself making many more spelling and homonym spelling errors in my mid-30s than I did in my youth. What’s that all about?

what to name those xtians?

one suggestion: call them leviticans

i kinda like it, but discussion over on making light points out that there are folks who follow leviticus faithfully and not selectively / hypocritically.

maybe levitican christians? but no, that’s two words, and doesn’t get at the point.

the point being that the people (a) call themselves christians; (b) but are more interested in old testament than new testament doctrines; and (c) and are rather selective about the old testament.

selective christians?

but as a matter of naming, you want something punchy, short, recognizable. leviticans is so good! but it also has to be accurate — neither over-inclusive nor under-inclusive.

someone else suggested christianists. a la “islamists”. i take it to mean, approximately, using the doctrine to advance a political agenda. another definition i saw said it meant, not following christ, but following the followers of christ.

i find it inelegant and hard to say.

others have suggested reconstructionists a la the rushdoonie (i think that’s the right spelling) crowd. i think that’s a bit inaccurate. reconstructionists are a specific philosophy, and not all the random bible-thumpers are reconstructionists. not even most of them.


oh well. will think about it later.

monster slash

No, it’s not fanfic about Bigfoot & Yeti, together at last. Bobby “Boris” Pickett remakes “Monster Mash” to point out Bush’s slash & burn environmental policies. See


We were hiking in the forest late one night
When our eyes beheld an eerie sight
Our president appeared and began to frown
Then he and his friends cut the forest down.
(he did the slash)
they did the forest slash
(he did the slash)
it was brutally brash
(he did the slash)
public opinion was mashed
(he did the slash)
they did it for the cash

The lobbyists were having fun,
The horror party had just begun
The guests include big timber, big oil
Mining magnates and their sons.
These visions haunt me and fill me with disgust
If we don’t stop them our environment will be lost
So come on now and join me; I’m glad to show you how;
Tell our president to save our forests now.

info news

  • Sex research is stigmatized. [nyt 11/9] Yeah, not least because of the Bush Administration.

  • Microsoft settles antitrust suit by Novell for $536M. [nyt 11/9]

  • FCC asserts federal control over VOIP. [nyt 11/9]

    To subject a global network to disparate local regulatory treatment by 51 different jurisdictions would be to destroy the very qualities that embody the technological marvel that is the Internet.

    Hmm. “[D]isparate local regulatory treatment” … federalism.

  • Margaret Mitchell estate (Gone With the Wind) sues Project Gutenberg. [NYT 11/8]

    PG’s Australian affiliate posted GWTW on the Internet after it entered the public domain in Australia. Unfortunately, thanks to the copyright maximalists & the folks in Congress who just don’t care enough to figure out the issue, the CTEA extended copyright terms in the US, keeping GWTW out of the public domain. Of course the US is busily getting rid of various national public domains through bilateral trade agreements, such as the US-Australia trade agreement.

  • Iran continues censoring Internet speech and access to information, including sites relating to democracy and the rights of women. [NYT 11/8]


John Ashcroft is retiring. Yes, I’m sure that Bush will show us how it could be worse, but for right now, I’m taking my pleasures where I can. [nyt 11/9]

The objective of securing the safety of Americans from crime and terror has been achieved.

Not yet, John, but your resignation is a good first step.

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