A friend just sent me a link to this fan video about the TV series “Supernatural”. What an awesome demonstration of the power of technology to enable media criticism. A thousand feminists could comment about exploitative or graphic visual depictions of violence against women in a series or on TV generally, and it would never have the effect of this video. … And to conclude: this is why DRM and the DMCA suck. Because they prevent (or try to prevent) people from being able to do this.
Last week a copyright imbroglio broke out at a science blog which had written a post critiquing mainstream coverage of a science article; the blog had posted a figure from the paper to demonstrate bad science writing in the mainstream media. Wiley sent a C&D; the blogger agreed to take the material down (actually took the data and recreated the figures herself) but posted about the incident; a blogstorm erupted (see also coturnix); THEN Wiley apologized … and the blogger as far as I can tell just left her own recreated figures on the blog post, and who can blame her? It’s a (relative) pain in the ass loading images on a blog.
So some good will come out of this incident: that a bajillion people will have heard the words “fair use” and been inspired to participate in discussions about open content, fair use, control of information, etc.
I really, really hope that people do *not* take the lesson that if the publisher had not apologized and “granted permission” that the original figures would have had to stay down. This was a classic example of the chilling effect that comes from cease and desist letters. In other words, a classic example of the growth of copyright paranoia.
The law is actually on the blogger’s side on this issue. That blogger would have been well within rights to completely ignore the C&D to begin with because this was as fair use (as many people pointed out). Wiley would have then had to do a s.512 notice to the ISP (scienceblogs.com) which would also have been within its rights to ignore the notice. They could have then filed a 512(f) suit against Wiley for a bad faith s.512 notice, and EFF or any number of attorneys would have been delighted to take them on as pro bono clients, I’m certain.
My point: These incidents raise questions about the growth of copyright and whether copyright should be usefully applied to certain kinds of knowledge and how public investments in scientific research should be monitored. But they also raise simple questions of the abuse and misuse of copyright law — misuse which is illegal in some circumstances and can cost the misuser a lot of money.
I’d like to see in-house counsel advising their “junior staff” about the possible liability for misusing its copyrights. A few more high-profile cases might put that in their list of important topics to cover in their in-house trainings.
How timely — I just finished a report on exactly this issue. I spoke with representatives from 25 different educational institutions and online service providers to understand their processes and practices, and pressures.
What we found is that universities have indeed set up overly harsh policies in response to P2P notices. The policies were typically created in the last few years, under significant political pressure and media spotlight — pressure and spotlight engineered by the large entertainment companies. University officials are typically very concerned about academic expression interests, but may not have looked at these policies in relation to all their other policies.
We found a lot more of interest — including really problematic behavior on the part of the rights enforcement companies. The report (Intellectual Property and Free Speech in the Online World) is available online, for free, in PDF.
The WSJ editorial page is not something I ordinarily frequent, but they recently wrote an editorial on the DMCA. Aside from a reflexive and simplistic “intellectual property is good so don’t bother me with nuance or details” attitude, this paragraph struck me:
Google claims “a legal safe harbor” from copyright infringement under the 1998 Digital Millennium Copyright Act, which allows Internet firms to provide a thumbnail of copyrighted material. The firm also asserts a right to reproduce and distribute intellectual property without permission as long as it promptly stops the trespass if the copyright owner objects. That’s like saying you have the legal right to hop over your neighbors’ fence and swim in their pool — unless they complain.
WSJ 2006/12/1 (it’s the editorial page so the person who actually penned this embarrassment doesn’t have to sign his or her name)
I realize that editorial pages don’t require fact-checking, but getting the law this wrong is embarrassing. Readers of this blog probably are very familiar with the DMCA, but a couple of quick pointers:
- The DMCA doesn’t “allow Internet firms to provide a thumbnail of copyrighted material.” I believe the hopelessly inept WSJ editor was probably thinking about the Kelly v. Arriba 9th Cir. decision, supported recently by the 2d Cir. decision in Dorling-Kindersley. Both of those interpreted fair use (17 USC 107) to include offering thumbnails for a different purpose.
- “… without permission as long as it promptly stops the trespass if the copyright owner objects.” Presumably here they’re talking about the DMCA notice-and-takedown provisions, 17 USC 512. Of course, these provisions don’t apply to original infringement — reproduction and distribution — but to the responsibility of ISPs and other intermediaries when their networks are used for reproduction and distribution. That is, at best, secondary infringement (contributing to or vicariously responsible for someone else’s infringement), and it’s really not at all clear that ISPs would be liable for it even in the absence of the safe harbor provisions. Which aren’t “claimed” by Google et al but ”given” to them by Congress.
Since they can’t be bothered to do even the barest minimum of fact checking, and don’t understand what they’re talking about, it’s hard to actually take them seriously. Are they this bad all the time?
Gigi Sohn of Public Knowledge probably very wisely didn’t bother correcting their extremely shoddy fact-checking but responded to the overall tenor of their arguments; the WSJ published their letter – and because the WSJ puts their content behind passwords, the full-text of the letter is available at PK’s blog by Alex Curtis.
The Library of Congress / Copyright Office issued its third set of DMCA rulemaking exemptions, just before taking off for the holidays. I was eagerly anticipating the rulemaking (even more eagerly than usual) after David Carson, General Counsel at the Copyright Office, kept dropping hints about the what we could all look forward to at a panel at Fordham last Friday. (The ever witty Hugh Hansen said it was the closest he’s seen to a legal strip tease.)
The rulemaking is more generous than it has been in past years (though still not as generous as I would be).
To sum up & paraphrase:
“Persons making noninfringing uses of the following six classes of works will not be subject to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)) during the next three years.” (The exemptions go into effect starting Monday 11/27 & expiring Oct. 27, 2009.)
- Film professors. (new) Film professors etc. can circumvent CSS on DVDs for teaching. (Limited to works in the school collection.) (New exemption)
- Preserving old video games. Libraries & archives can preserve computer programs & video games for obsolete platforms & medias. (This kind of exemption shows the weirdness of the 3-year expiration for each of these rulemakings. Libraries & archives had better do a lot of preservation in the next 3 years because who knows if we’ll get it again in 2009! This is a carry-over exemption, but every 3 years librarians have to make the case again.)
- Malfunctioning dongles. You, me, and anyone else can disable malfunctioning access dongles on computer programs if the dongles are obsolete. (Another carry-over.)
- EBook blind readers. Blind ebook read-aloud exemption continues from past exemptions.
- Cell phone switching. (new) If you switch cell phone companies you can disable proprietary technologies to keep your cell phone. (This is a new exemption.)
- Sony rootkits. (new) Sony rootkits and other CD copy protections can be disabled to test, investigate, or correct security flaws or vulnerabilities. (This is a new exemption, and I’m glad it’s here, but, honestly, we got more bang for the buck out of the furious glare of news media & public outrage & a little state’s attorney general scrutiny.)
The Librarian of Congress carefully reminded us that “[t]his is not a broad evaluation of the successes or failures of the DMCA.” Also, that the rulemaking is just for access-control exemptions, not copy-control exemptions, nor does the rulemaking craft exemptions for the prohibitions on making / distributing circumvention tools.
There’s a lot more detail in the 88 page “Recommendation of the Register of Copyrights”, which is where the juicy comments on everybody else’s proposed recommendations will be. What a fun txgiving read! O thank you Copyright Office — this is much better than a football game. (I’m not being sarcastic.)
oh happy day! The war on us is progressing nicely and soon we will have won the war against ourselves. Phones are being tapped willy-nilly and surely some of them will generate some useful information to allow us to be held without trial or access to the courts indefinitely under the president’s powers. The government is cracking down on those enemies of the state, video game retailers.
I never cease to be astonished by how smarmy politicans can be: today, leaders in the Smarm Community, the anti-choice people (‘pro-lifers’). The latest RU-486 story in the NYT, sensationalistically titled “2 More Women Die After Abortion Pills”, covers two recent RU-486 deaths (two, for a total of five; four of which were probably infection-related). Naturally the pro-lifers jumped on it, using the opportunity to pontificate piously and misleadingly. Here’s “Concerned Women of America” policy director Wendy Wright:
“Sadly, people who support RU-486 apparently believe the risk of death is preferable to having a child.”
Wright’s politicized sorrow obscures the facts, some of which are included in the NYT article. It turns out that these two deaths are from infection after RU-486 abortion, and, statistically, the deathrate from infections after childbirth and abortion remains consistent across procedures and methods. [The NYT article fails to mention anything in response to this misleading quote; I would have thought that the risk of death from 'having a child' would have been appropriate here. The risk of long-term health problems, considerably greater for childbirth than for any method of abortion, might also have improved the article. But ranting about the NYT is a task for another day. For many other days.]
The statistics are unsurprising, but in the politicized world of abortion statistics you would have difficulty verifying the data, or trying to flesh out Ms. Wright’s statement. For instance, if you googled something like ‘childbirth abortion mortality rates’, you could see that Google has been successfully bombed by a flood of political sites on the topic (largely anti-abortion). You have to get to the second page of results before you actually start seeing any material from the medical community.
A search of PubMed proved much more helpful. The scientific literature largely treats abortion, pregnancy, and birth control as part of a continuum of family planning and reproductive outcomes — what I’ll call the reproductive medicine approach. This makes sense. Research that seems tailor-made to proving somebody’s point about abortion (from whatever perspective) is just inherently less trustworthy.
The reproductive medicine approach makes clear that when the government gets involved in restricting women’s reproductive choices there are clear medical consequences: Whatever the risks of specific procedures, techniques, and reproductive outcomes, what’s really risky is lack of access to family planning and contraception. Unplanned pregnancies are, ultimately, the cause of most pregnancy & childbirth-related mortality, by leading to high-risk pregnancy, or in many countries, illegal or quasi-legal abortion. In the US, for instance, restrictions on abortion delay many women’s access to the very safe first trimester abortion, perversely leading to more late-term abortions. But the message from those who would politicize and involve the government in individual medical decisionmaking, is never about healthcare or policy, probably because the healthcare policies they would propose would be unacceptable to most people. Instead, they focus on particular technologies, techniques, and procedures — effectively establishing technological mandates and prohibitions.
Technological Mandates Are Bad Government
It’s almost never a good idea for the government to establish technological mandates. Technological developments are notoriously difficult to second-guess or steer; tech mandates all too often exemplify the law of unintended consequences [Library of Economics, WikiPedia]. Whenever Congress or state legislators try to take aim at specific technologies, they end up effecting a lot of other changes, scattershot. And any technologically specific law is bound to be out of date very quickly.
We usually think of tech mandates & prohibitions in geeky areas, like copyright: the DMCA (thou shalt not tamper with copy protection measures, etc.); DAT (digital audio tape recorder manufacturers shall include copy protection schemes); broadcast flags (thou shalt include broadcast flag recognition technology in video recorders). But the same impulses are clearly at play in the politics around abortion and birth control. And as in copyright, politicians’ attempts to mark out this or that technology, technique or method as sinful and wrong is bad policy. The politicization of this or that reproductive medicine technique (most recently emergency contraception and intact dilation and extraction, or so-called ‘partial-birth abortion’) only hampers attempts to improve reproductive medicine and outcomes for women, infants, and their families.
Abortion is only the most obvious example. Legislators do nobody any favors when they start toying with technological mandates in any field.* Look at the recent Congressional hearings on stem-cell research. Saletan in Slate tried to put a good spin on it: These guys are working really hard & exploring the issues; isn’t that nice? Yeah, that’s nice from a personal growth standpoint, but the problem is these guys are making laws about very specific techniques, and they have no clue what they’re talking about, much less doing. They don’t understand biology, they don’t understand genetics, they don’t understand development.
But Congress members do understand policy-making, and one might argue that they understand ethics. Well, err, anyway, they understand policy-making. So if Congress members feel they must Take Action, then I have a suggestion for them: Do what you know — make policy. Set out broad principles of respect for life (which includes the lives and health of women as well as the lives of their potential children) and autonomy. Fund research into family planning methods that enhance autonomy and health. Make principled statements that are general about no wanton cruelty (or whatever) in harvesting stem cells. Skip the specific tech mandates.
Then Congress could let the NSF & NIH apply those guidelines when funding specific grants. That’s what regulators & grantors are good at: reviewing specific proposals to see if they fall within general guidelines. And Congress could let the courts interpret those terms in the course of litigation. That’s what courts are good at: reviewing the facts of particular cases, heartwrenching, difficult cases, and figuring out how to apply broad principles. And Congress could stop grandstanding and micromanaging cases (like Schiavo) and technologies (anything to do with biology, family planning, and copyright protection is by definition a Bad Idea for Congress to muck with — others no doubt will occur).
follow-up: 2005/7/25: The AP version of the story also pointed out that the women who got the infection and took the drugs may not have followed FDA-approved instructions.
The agency also said the four deaths occurred among women who were treated at clinics that didn’t follow FDA-approved instructions for the two- pill regimen. Although the FDA stressed that it could not prove that the “off- label” use was to blame, its new public health advisory warns doctors of the possible link to such use.
The fifth death followed a ruptured tubal pregnancy, a dangerous condition and type of pregnancy that the drug does not terminate.
Geez. Could the NYT article have been any less informative?
* For that matter, technological mandates & prohibitions really might be considered a subspecies of micromanaging generally. The Terri Schiavo fiasco demonstrates why legislators should stay out of individual cases, and far, far out of medical decisionmaking.