The Great Change: Turning Cathy into a Lawyer

I'd recently read about Arista's plans to start releasing in larger quantities "cd's" with so-called "copy protection" in yet another volley by the Record Industry in the war against fair use.

Meanwhile, and this is one of the details about me that was bound to leak out at some point, I'm a Huey Lewis and the News fan (someday I'll explain further about what this means vis a vis my life...) and I've been participating on a chat board for Huey Lewis and the News fans.

Someone posted that Duran Duran (yes, this was off-topic) had just been signed to Arista. I commented thusly:

Way way back in 7th grade I met one of my best friends because of Duran Duran. I was a HLN fan, and she a Duran Duran fan. We used to ask each other trivia questions about each other's bands. Back and forth... for months! In the meantime we did discover other things to say to each other and became proper friends... But even though I've never gotten all that into Duran Duran, I still have a soft spot in my heart for them because of that.

I do not, however, have a soft spot for Arista who plans on polluting the market with copy-protected "cd's". I would not recommend buying them*, not if you believe you should own the music you buy and be able to play it on whatever device you choose, be it a stereo, computer, or any device designed to play media created with the CD standard. Copy protection is not part of the standard, so these copy-protected "cd's" frequently break standards-compliant devices as well as eliminate the fair use rights you have previously enjoyed. And by "break" I mean anything from "not play properly or at all" to "get jammed inside of" to "permanently damage the equipment."

* It's very difficult to tell which compact discs are legitimate and which are the usage-impaired "copy-protected" ones because only some of them are labelled as such. You might want to think of supporting the Digital Media Consumers' Rights Act (DMCRA, H.R. 107) which would call for labelling all such discs so that you don't get caught buying the wrong ones.

Stay tuned to see how people react. I do think I may need to learn to be more subtle (at least in that forum - I'm probably developing a reputation, and maybe it's not one I would want). On the other hand, Paul Revere was said to have galloped through the village shouting "The British are coming!" and I don't think many Americans would have wished him to have been more subtle in the warning. Sometimes the threats are more real and more urgent and need to be treated as such. The problem is when other people are unaware of the urgency and get turned off by a tone of alarm that they can't possibly believe is reasonable, so they therefore never become informed of just how dire the circumstances are.

It turns out that Duran Duran may not have been signed to Arista after all. Apparently the source of this tidbit may not have been all that reliable. Nonetheless the points about Arista still stand.

In other depressing news regarding the RIAA's bullying, today the Justice Department weighed in on their side in the RIAA v. Verizon case. This is very annoying, particularly in light of the Appellate court's decision limiting Verizon's ability to present amicus curiae briefs in support of their position. The RIAA are under the same limitation, but they get a bonus by having the government on their side.

In this case the government is wrong. If the RIAA wins it will represent a horrible blow to personal privacy and significantly chill people's inclination to speak freely. Of course, with Total Information Awareness, the Patriot Act and all its demon offspring and inbred cousins, the current Justice Department has already shown a tremendous disregard for all sorts of privacy. So while it's a disappointing position for them to take, it's hardly surprising.

I suppose within the context of my own blog I should explain the cases and other items I refer to. But I am way too tired and have too much of a headache to be able to do so coherently. Go follow the link for more information for now.

It's not like I don't have enough on my mind without having to deal with these fair-use-killing, freedom-squelching, technology-stifling small-minded greedy oligarchs.

The chilling and threatening litigation continues. I'll comment on it specifically one of these days but I wish to go on record now protesting the general absurdity.

In addition to stifling all sorts of freedoms and innovations, it's abhorrent the way they try to claim the moral high ground on the issue of file sharing. I got in an argument with one of my best friends last night, and I'm on the verge of picking a fight with another musician I've admired for nearly 20 years because although the RIAA doesn't serve their interests, they essentially buy into the RIAA's rhetoric equating file sharing with piracy.

It isn't. That association is wrong and oversimplistic. I think file sharing is the Kindergarten principle simply expanded: that it's good to share. (Although this too is oversimplified. My thoughts on it are more robust but for the moment I will linger on this particular aspect.) My friend did raise an interesting point, wondering if it's one thing to share with friends and another to share with strangers on such a wide scale. It's worth thinking about, but I don't think a negative answer to that question should still impugn file sharing, if for no other reason than by banning file sharing and its technology, you also ban myriad legitimate uses, both actual and future, in an unaccepatable way that threatens others' freedom of expression. Not all files shared on P2P systems are copyrighted by entities unwilling to have them shared, but destroying the technology at the behest of those who are unwilling also destroys the avenue for other people who would wish to have their work disseminated through that technological vehicle. And by work, it's not just music or MP3s: pictures, other sound technology, video, documents... file sharing is file sharing. All sorts of files - and encapsulated in them, all sorts of ideas - can be shared. The impact of shutting down the alleged "copyright-infringing" tools means that much more is destroyed.

At some point I will be inclined to elaborate further. Right now I want to throw a tantrum at the persistent destructive litigious stupidity of the RIAA, and I mourn the fact that a huge rift is opening up between me and others I care about over this issue. This type of battle for these types of threatened freedoms is what I want to devote my life to. I hope I don't have to lose people who mean a lot to me in the process.

In the meantime, for a humor break, here's a funny comment on Slashdot today regarding the RIAA's legal activities.

I didn't get a chance to post yesterday because of the frenzy of activity surrounding what I'm going to talk about: there finally was a legal decision regarding file sharing that was made correctly.

The RIAA and MPAA juggernaut, fearing what they allege to be "piracy" in the trade of music and video files, have tried to pick off each P2P service. They managed to effectively shut down Napster, having a court rule that Napster was liable for copyright infringement its users may have committed.

In the wake of that decision, the players in the P2P space readjusted their businesses and their technology and introduced new client software. The RIAA and MPAA then went after them. And thanks to the EFF, they didn't succeed.

Assuming the decision survives on appeal (and it's a near certainty that the US District Court ruling will be appealed) it correctly makes a delineation between the Napster P2P model and the new model of P2P technology, it correctly applies the Sony Betamax decision (1984 or thereabouts), and it notes that tools that allow for legitimate uses cannot be banned because some people might use them for illicit uses.

I read the decision and found it to be quite readable. I recommend all people interested in this issue to read it for themselves. It's written in plain (enough) language and does not require extensive knowledge of the issue in order to understand.

This needed to be posted. The RIAA is going to look for downloads of certain songs, then send threatening instant messages via the P2P client software telling them they're breaking the law.

I wonder if they can be found guilty of practicing law without a license. To my knowledge, file sharing may in fact be a legitimate instance of fair use. To say otherwise is an opinion, not a factual certainty as the RIAA would have us all believe.

On edit, here is the text of the warning:

COPYRIGHT INFRINGEMENT WARNING: It appears that you are offering copyrighted music to others from your computer. Distributing or downloading copyrighted music on the Internet without permission from the copyright owner is ILLEGAL. It hurts songwriters who create and musicians who perform the music you love, and all the other people who bring you music.

When you break the law, you risk legal penalties.There is a simple way to avoid that risk: DON'T STEAL MUSIC, either by offering it to others to copy or downloading it on a "file-sharing" system like this.

When you offer music on these systems, you are not anonymous and you can easily be identified.You also may have unlocked and exposed your computer and your private files to anyone on the Internet. Don't take these chances. Disable the share feature or uninstall your "file-sharing" software.

For more information on how, go to http://www.musicunited.net/5_takeoff.html.

This warning comes from artists, songwriters, musicians, music publishers, record labels and hundreds of thousands of people who work at creating and distributing the music you enjoy. We are unable to receive direct replies to this message. For more information about this Copyright Warning, go to www.musicunited.net.

This article talks about how Congress is organizing committees to come down on file sharing. What these Congresspeople don't seem to understand is that by controlling intellectual property, they are controlling ideas. All ideas. Not just songs, but any conveyance of thought. Article excerpt:

...

Three members of the U.S. House of Representatives are creating a new congressional caucus devoted to combating piracy and promoting stronger intellectual property laws.

A letter sent to some members of Congress last Friday by Rep. Robert Wexler, D-Fla., warned of the threat of "ever-changing technologies" and asked colleagues if they would like to join the caucus. "The concerns of the thousands of Americans whose livelihoods depend on intellectual property protection are not being fully debated or addressed," said the letter, which was obtained by CNET News.com.

A representative for Wexler said on Monday that planning for the caucus--formally titled the Congressional Caucus on Intellectual Property Promotion and Piracy Prevention--is still in its early stages. "We literally just submitted the papers at the end of the last week, so it's just in formation," the representative said, adding that many possible Republican members have not yet been contacted.

Wexler co-sponsored a bill last year, backed by the major record labels, that would authorize copyright holders to disable PCs used for illicit file-trading. He also serves on the House Judiciary subcommittee that writes copyright laws.

It's unclear what immediate effect the caucus will have on new laws aimed at peer-to-peer (P2P) pirates, although one likely outcome is a new focus on what has emerged as a hot topic in the 108th Congress. The founding of the caucus comes as Congress is spending more time scrutinizing peer-to-peer piracy. One recent House committee hearing blamed P2P networks for spreading illegal forms of pornography, while another fingered universities as hotbeds of widespread--and felonious--copyright infringement.

Joining Wexler as co-founder of the caucus is Rep. Adam Smith, D-Wash., who helped author a note last fall to 74 fellow Democrats assailing the Linux open-source operating system's GNU General Public License as a threat to America's "innovation and security." Smith's Ninth District includes the Seattle surburbs near Microsoft's Redmond, Wash., headquarters. The third founder is Rep. Tom Feeney, R-Fla., a first-term congressman and former speaker of the Florida House of Representatives who was once Gov. Jeb Bush's running mate.

...

gleeful comments by RIAA and MPAA removed

...

By Declan McCullagh
Staff Writer, CNET News.com
May 19, 2003, 3:51 PM PT

It's too soon to be able to comment fully on this ridiculous situation, mostly because SCO, who is alleging that Linux illegally contains their intellectual property, can't or won't be bothered to actually articulate their concerns in a substantive way that people could actually respond to.

But there is something wrong when one company, or even one man (interview with SCO's Chris Sontag), can nearly paralyze an entire industry and all its users by aggressively - if not justly - wielding the legal system as a weapon.

There are in fact many things wrong with this whole situation. Another is that there's something very amiss with intellectual property laws if a private concern can in any way co-opt communal labor, in this case that of the Open Source Linux community. Open Source initiatives protect us all from the whims and ulterior motives of private software companies (even the most progressive still needs to have an eye on the bottom line, a priority that can sometimes be inconsistent with providing stable, robust, or secure software to fulfill its users' needs). We are much better off if these groups and software products survive and thrive, giving us viable alternatives to solely proprietary offerings.

(As a counterpoint to the interview, this was a comment on Slashdot.)

Darl McBride, SCO Group's president and CEO, said in an InformationWeek article:

The Linux business model was bound to change, and some people are having a hard time accepting this, he says. "The whole concept of getting something for nothing just doesn't hold up," he says. "The notion that you're going to run a Fortune 1,000 company on something that in the end could be more like Napster than an enterprise software system, it's a big question mark."

and Matt Oppenheim, senior vice president of business and legal affairs for the Recording Industry Association of America, responded on PBS's Online Newshour:

... Intellectual property should not be treated any differently than other property. ...

Each comment is wrong, and although they approach the question of the legal status of intellectual property in different ways, both opinions share a remarkably anti-social attitude towards the free exchange of thought (meaning thoughts, ideas, knowledge, information, memes, etc.), as well as also being short-sightedly ignorant about the economic benefits of this free exchange.

Both speakers are essentially arguing that all thoughts (the products of thinking) should be ownable, but what would happen if they all were? How would people learn? How would there be further innovations? How would society benefit from this arrangement, and if society at large didn't benefit, how would individuals benefit either?

It may sound noble and reasonable to say that people should be able to capitalize on their own thoughts, but treating every idea as a commodifiable entity isn't a good idea in the long run. Taken to its logical conclusion, this would mean that all people would have to make enough money on the economic exploitation of their own ideas to be able to afford the exposure to others'. Innovation would ground to a halt because no one could be sure that their breakthrough would really have occurred in a vacuum (and of course it wouldn't, because few innovations ever occur in a vacuum).

McBride's sour grapes aside, Linux is a great example of the greater value EVERYONE gets to enjoy when ideas are shared. In the commodified-idea world there would be no Linux, and megapolies would own all of the intellectual tools (software, books, music, art, etc.) and everyone would be stuck with that. Including Oppenheim and McBride. It's in society's interest to buck the commodification trend, and the Oppenheims and McBrides of the world should hope that their rhetoric is resisted. If it is, in the end we will all be much richer.

I wrote the last post when I was tired and stressed, in part because I want to keep up the blog regularly. I imagine there will be more tired and stressed posts in the fall when I will be a 1L...

The post may read in such a way as to suggest that I advocate the complete destruction of all legal precepts for intellectual property, thinking that all ideas should be inherently free and unownable. In a pinch I think that paradigm is preferable to the hyper-greedy legal paradigm being touted by the RIAA, MPAA, SCO, et. al., but my overall point is that there's a sane way to draw intellectual property legalities that allows for idea originators to profit from the commercialization of their ideas while not completely undermining society's inherent dependency on a freer exchange of ideas in order to grow, develop, and remain cohesive.

Every new advance in technology seems to send shivers up the spine of any business who depends on the commercialization of ideas. And as such they routinely push the government and the courts to change intellectual property laws to specifically protect what they believe their interests to be. These efforts need to be resisted because

a) frequently they are incorrect about what their economic interests actually are (for instance, the MPAA failed famously in its quest to destroy the home video and has since profited handsomely by their failure) and

b) it's unnecessary. Intellectual property laws based on strong and socially generous principles DO scale in such a way that both society and idea "owners" benefit. Overly-manipulated laws do not because they lose sight of the principles the Founding Fathers incorporated into the Constitution, a tradition that recognizes that openness in idea exchange best achieves a balance between social and commercial interests.

McBride and Oppenheim et. al. seek to quash that openness, to undermine that balance, by supplanting that legal tradition with a new paradigm which treats intellectual property as any other property. This would be a mistake, and as I wrote in the previous post, if McBride and Oppenheim et. al. succeeded in gaining what they (think they) want, their commercial interests will be harmed along with everyone elses.

According to this, Sweden is thinking about passing a law that would a) outlaw file sharing, and b) create a compulsory licensing scheme through a tax on blank media (like cdroms).

It's not that there aren't merits to compulsory licensing, but that arrangement is best intended as a means of compensating authors who *might* lose out on income to file sharing and thus remove the one possible objection to the technology. Instead this law puts excessive financial burdens on consumers of blank digital media, including for myriad indisputable fair use means, while at the same time overly criminalizes file sharing, which is insane. The consumption of ideas should NEVER be criminal. Doing so causes the same challenges to freedom as the criminalization of their expression.

My high esteem for Sweden will plummet significantly if this law passes.

Unlike the case with Sweden, I already hold Hatch in incredibly low esteem. However, he seems insistent on descending to new lows of unworthiness. From an article picked up in a number of places, including the Washington Post (emphasis mine):

...

During a discussion on methods to frustrate computer users who illegally exchange music and movie files over the Internet, Hatch asked technology executives about ways to damage computers involved in such file trading. Legal experts have said any such attack would violate federal anti-hacking laws.

"No one is interested in destroying anyone's computer," replied Randy Saaf of MediaDefender Inc., a secretive Los Angeles company that builds technology to disrupt music downloads. One technique deliberately downloads pirated material very slowly so other users can't.

"I'm interested," Hatch interrupted. He said damaging someone's computer "may be the only way you can teach somebody about copyrights."

The senator acknowledged Congress would have to enact an exemption for copyright owners from liability for damaging computers. He endorsed technology that would twice warn a computer user about illegal online behavior, "then destroy their computer."

"If we can find some way to do this without destroying their machines, we'd be interested in hearing about that," Hatch said. "If that's the only way, then I'm all for destroying their machines. If you have a few hundred thousand of those, I think people would realize" the seriousness of their actions, he said.

...

I'm nearly struck mute by the perversely humorous audacity of his plan. Do civil liberty advocates get to come over and destroy his computer until he learns a thing or two about copyrights and fair use? Let alone the Consitutional principles and basic tenets of liberty (and jurisdictional boundaries) which would be considerably undermined by permitting the destruction of property, particularly without any sort of due process.

I'll cite Gwen Hinze of the EFF on this:

This is an entirely unreasonable proposal, tantamount to a debt collector sending you two warnings that your car payment is late and then claiming that he is entitled to burn down your garage.

(Also see a comment on Slashdot for more analogies.)

Of course, today's news is that Hatch doesn't respect copyrights himself. From Wired:

Sen. Orrin Hatch (R-Utah) suggested Tuesday that people who download copyright materials from the Internet should have their computers automatically destroyed.

But Hatch himself is using unlicensed software on his official website, which presumably would qualify his computer to be smoked by the system he proposes.

The senator's site makes extensive use of a JavaScript menu system developed by Milonic Solutions, a software company based in the United Kingdom. The copyright-protected code has not been licensed for use on Hatch's website.

...

According to the article Hatch's site might have since scrambled to achieve compliance, but that's not the point. It's more the "Pot? Hi, I'm Kettle and we're both going to get obliterated due to my really stupid idea" schadenfreude kind of thing.

After reading about Matt Oppenheim's dental threats to college student Jesse Jordan, who unfortunately fell in the sights of the RIAA, I suddenly flashed on this quote from Marathon Man.

And no, it's not safe. It's not safe to in any way enable, support, build, look at, pet, feed, or even contemplate any sort of indexing technology. Jesse was one of the college students who ran a service that indexed files (ALL files) on a local area network (NOT the internet, a network within a contained community.) Because this service was capable of reporting that MP3s existed on the network (along with myriad other files of no interest to the RIAA), even though it did not HOST these MP3s itself the RIAA nonetheless decided to help itself to Jesse's life savings via Extortion-By-Lawsuit (although it's unclear why they haven't similarly tried to help themselves to Microsoft's billions since Windows supports a technology that essentially does the same thing).

Jesse says he settled to avoid the costs of litigation, but now the RIAA has issues with him exercising his freedom of speech so this may go to round 2.

Is it safe? To express oneself? To develop innovative technologies? Not by a long shot. I hope Jesse fights the RIAA and takes them to the mat. Or at least takes them to the dentist. There's something rotten over there that needs pulling.

The situation is so complex it's hard to know exactly what's going on with the SCO-Linux thing (it's more than just a lawsuit against IBM, it's an entire offensive to undermine Linux).

But here's a few links with some helpful analysis:

• Penguin on Thin Ice? Why IBM Should Win in the Fight to Save Linux, by Anupam Chander on Findlaw. Of the two links, this is a bit more readable and takes more of a high-level analysis. I recommend it in particular because it does help clarify and contextualize the issues, and as a lawyer Chander can speak authoritatively on the IP issues.
• FSF Statement on SCO v. IBM by Eben Moglen, counsel to the Free Software Foundation. This is more dense and consequently a little less readable, but it's an important voice in the discussion. The FSF, as I understand it, is the organization that handles the licensing and possibly also much of the project management for open source endeavors including Linux (or, as Moglen points out, GNU/Linux. One of the things this statement attempts to do is clarify the correct nomenclature with regards to what Linux actually is, which SCO is trying to muddle along with everything else). Also, Moglen himself is an expert in IP and as such his analysis carries more credibility than the many laymen who have weighed in (including me.)

Moving is such a mess it's easy to lose sight of why I'm doing this law school thing. And then things like this happen and I remember what it's about.

This law would make it an automatic felony to have uploaded a copyrighted file. A felony. Not just a crime, or a civil liability (as copyright violations have been considered in the US until recently), but a felony. With jail time. With the various other consequences of a felonious history including the loss of the right to vote.

It's interesting though because many stereotypes about partisan politics don't hold here. Usually the conservative right is the propoent for civil-liberty-restricting legislation. In this case the law was sponsored by 2 Democrats (Reps. John Conyers Jr. (D-Mich.) and Howard Berman (D-Calif.)). I'm incredibly disappointed by this fact. I don't like being a knee-jerk supporter of a single party, but because of issues like reproductive freedom I generally find it necessary to unilaterally support the Democrats in order to have a solid-enough voting block to prevent Republican-led incursions on many of my other freedoms. But how can I support the re-election of Democrats such as these who would seem to be doing the Right's dirty work? Ironically, the allies here would be the true conservatives who would prefer to have a less-meddling government in the affairs of the individual.

Edit: Later in the day I came upon this article on Salon about how the RIAA is clogging the courts with their P2P subpoenas. The volume is staggering, with 75 more added each day. If the above law was passed, an entire generation could be disenfranchised within a year. (Unless, as it seems, they are Time Warner [AOL] customers....?)

Another edit: Although before I start lauding the elephants outright, there was also this article in Salon. This incident bears striking resemblance to the showdown in Texas when the Republicans called out the police when the Democrats weren't governing to their satisfaction. For some reason, Republicans seem to think they are entitled to do this. (Yesterday involved calling Capitol Police when Democrats had withdrawn to a library in the Capitol to protest procedural heavy-handedness.)

I'm going to cite Slashdot on this (and hope that the translation of the ruling is accurate):

[Note: my hyperlinking is a bit different than Slashdot's]

BlueWonder writes "German news site Heise Online reports a recent decision of the Bundesgerichtshof, the highest court in Germany: Deep linking is not illegal. Newspaper company Verlagsgruppe Handelsblatt had sued the news search engine Paperboy for deep linking to their articles. According to the Bundesgerichtshof, the public interest in a well-working Internet takes precedence over the commercial interests of the newspaper company, even if the advertizing of the company is bypassed. The Bundesgerichtshof has clarified that users can access any page if they know the URL, and deep linking is just a technical simplification for entering the URL manually...."

The reason this caught my eye and I decided to blog it (as opposed to the zillions of other interesting and important things that I also see on Slashdot) is because of the line, "the public interest in a well-working Internet takes precedence over the commercial interests". This should be the trumping consideration in nearly every case involving the Internet. Too bad it hasn't quite worked out that way (yet)...

Although I agree with the California Secretary of State that punchcard ballots are an unacceptable mechanism for holding an election, they are a dream compared to some of the new electronic voting systems being installed all over the country. Though they improve on punchcards in that they better insure that the votes initially recorded actually capture the voters' will, their tremendous vulnerabilities to tampering means that there is absolutely no guarantee that the votes will actually get counted correctly. (And it's the counting which was of such concern to the Supreme Court and Ninth Circuit Court of Appeals.)

Salon recently ran an interview with Bev Harris, a writer who investigated Diebold's system, its technological vulnerabilities, and the political motivations which seem to be inhibiting Diebold from making appropriate and necessary corrections to their technology in order for it to be a legitimate medium for an election.

From a technological stanpoint, Diebold's system suffers from two major, substantive flaws: the databases storing these results are incredibly easy to be overwritten by anyone on the Internet, and there is no audit trail to either track nefarious changes via hacking or to provide a redundant paper record immune to tampering in the event of any discrepancies.

From a political standpoint, there are reasons to suspect that the company's reluctance to address these deficiencies is to permit them to be exploited by the political interests preferred by the company. This may be conjecture and not turn out to be the case at all, but memos from the company suggest the plausibility of the aforementioned suspicion. These memos have been published in a variety of places, places that Diebold has now served with Cease and Desist letters demanding their removal by claiming copyright on them. Of course, as Harris pointed out:

"...I don't believe you can protect intent to break the law by slapping a copyright on it. And the memos that we posted show that the law has been broken. If you can protect intent to break the law, all anybody would need to do is take their bank robbery plans and put a copyright on it, and then say nobody can look at them because they're copyrighted."

Of course, as she also points out, their claiming copyright on them essentially also authenticates them as well. But where can one see these memos? It's become a giant shell game as the memos are passed around from mirror site to mirror site, trying to stay one step ahead of Diebold's lawyers. These are memos which need to be reviewed and questioned. Perhaps they are all innocuous and Diebold can easily explain them all away. If not, then every citizen has a right and obligation to review documents detailing how their right to vote is being deliberately undermined. With that knowledge citizens can demand redress (e.g., discontinuing use of the technology, prosecution of criminal parties, etc.) but without that knowledge citizens are sitting ducks to be exploited by those who would chose to. To protect criminal activity with the shield of copyright protection would be a great travesty and a complete abdication of any social value to copyright protection in the first place.

Of course, that's only part of the problem. As long as integral civic institutions are maintained through proprietary systems, citizens will forever be at the mercy of the motivations and limitations of those entities which produce them. Even without any nefarious intentions, a company's technology is limited to the finite brainpower of its workforce and its own fiscal self-interest. Closed off from the world, proprietary technologies' vulnerabilities will be accessible only to criminals whose respect for copyright protections would likely be as negligible as their respect for the other laws they would seek to flaunt with their exploitation.

Governments need to add their voice to the chorus clamoring for open source solutions to modern institutional problems. Only with that visibility can citizens be sure they can know how it works and depend on the combined intellect of the world to address defects. To use proprietary solutions for such integral civic operations is, in fact, unprecedented. In any other civic work, plans are filed as public documents. Image a bridge where the blueprints are protected as proprietary company property, reviewable by no one. "Don't worry about it," the company says. "The bridge will stand up. Trust us."

We wouldn't trust the bridge builder, so why would we trust the technology vendor?

To make my Halloween costume I stopped off at the drug store and bought a shower curtain liner for $3.49. Pretty simple curtain, pretty simple packaging. Or was it?

I happened to flip over the package and noticed it included a few messages: care instructions, a bar code, a logo and the name of the manufacturer, a "made in China" reference, and, naturally, a copyright notice (exactly as typed below, though without the quotes):

"This Package and Package
Design are Fully Protected by
Copyright. Infringements will
be Prosecuted."

I am chagrined that I had not previously realized the devastating effect rampant piracy was having on the shower curtain industry. It's just a matter of time before Orrin Hatch proposes that shower curtain companies who suspect that people are using infringing bathroom products be allowed to barge into their bathrooms and flush the toilets while they are showering.

I knew a guy at college who'd always been a bit flaky but not in any way to prompt any alarm. Until a conversation several months after not hearing from him for a while when he informed me that he was about to corner the hemp market.

"Now I know how Bill Gates felt, right before things got really big and he knew he was going to own the whole industry."

Um, ok....

I worried that my acquaintance's shaky grip on reality may have been due to him consuming his own inventory.

I have a harder time explaining the latest surprisingly similar delusions of SCO executives Darl McBride and Chris Sontag. Based on one of the comments McBride made, it appears they've been trying to toke a Linux CD. I imagine the toxic smoke of the smoldering plastic might cause hallucinations, but to this extent?

It should be noted, and celebrated, that Verizon won its appeal against the RIAA for its subpoenas. I posted about this elsewhere but I'll summarize here as well.

The Digital Millennium Copyright Act includes some language that allows copyright owners to subpoena ISPs for the identities of people who, according to the RIAA's interpretation, are sharing files. The DC Circuit Court of Appeals disagreed, and said that only ISPs who were actually hosting infringing material could be subpoena'd, not ISPs who merely transmitted data from one user to another node on the Internet. Verizon was being subpoena'd for its subscribers' identities, people who used it in order to connect to the Internet. This wasn't the same scenario as if Verizon's users had posted copyrighted material on Verizon's servers. The Appeals Court said that the statute itself made the distinction between types of ISPs and didn't allow subpoenas to be brought against a transmission-type ISP. Resting on statutory interpretation the Court made no inquiry into any of the Constitutional arguments that might have come in to play if the statute had permitted subpoenaing those ISPs as well.

Regardless of filesharing, the Appeals Court's decision was a good one from a civil liberty standpoint. Although we haven't studied it yet in Civil Procedure, my understanding is that the RIAA subpoenas differed from normal subpoenas in that they could be served without the standard judicial oversight that normally applies. This meant that the RIAA could menace (and in fact did) all sorts of people with the threat of ruinous lawsuits without demonstrating to a court any sort of justification beyond mere suspicions of wrongdoing. Pretend the RIAA isn't the party involved - we really wouldn't want subpoenas to be so easily issued in any sort of case.

My problem with the decision is that in the dicta the Court sounded overly sympathetic to the "plight" of the recording industry. The concern is that the Court might not be inclined to balance its interests with the other Constitutional concerns that arise in contemporary copyright debates. The problem is that the RIAA is winning the rhetorical war, that people are starting to accept that filesharing is "bad" without giving it a thoughtful analysis on whether it actually is bad, or stealing, or adverse to the industry's interests, or even contrary to some sort of industry entitlement. In these areas the counterarguments to the RIAA's position need to be articulated loudly and more publically.

Date changed to reflect when it should have been posted. Actually posted 1/2/04.

Several years ago there was a cartoon show called Animaniacs with several sets of characters, including two lab mice named Pinky and The Brain. Each ill-fated episode invariably concluded with Pinky asking The Brain, "What will we do tomorrow night, Brain?" and The Brain always answering, "Same thing we do every night -- try to TAKE OVER THE WORLD!" (The mice never succeeded, of course, but the producers were able to make a series out of their various attempts.) As SCO officials ['SCO'] have said one megalomaniac statement after another, statements to the effect of "our view of intellectual property is the correct one, and we won't rest until the world does things our way," I couldn't help but make the comparison. The obstinate narrow-mindedness of their view, the zeal with which they promote their inaccurate and uninformed interpretation of the relevant laws, the utter hubris with regard to their litigious behavior, their adamant refusal to take voluminous critical outcry as a sign that their claims may be damaging to say nothing of entirely wrong, and their willingness to wield any weapon available (e.g., lawsuits, FUD) in efforts to make the everyone else do things to their satisfaction made me realize that they, in fact, are trying to take over the world.

But that was just an impression gleaned from reading dozens of articles. Perhaps in person they would inspire a more favorable opinion.

On Monday night I attended a presentation at Harvard by SCO CEO Darl McBride and senior executive Chris Sontag (I'm unsure of his title these days) where they presented their case to explain why they are suing IBM, Novell, and an "end-user" to be named later, along with lobbying Congress to disavow open source software and sending letters to various companies requiring payment if they wish to continue to use Linux. To their credit both men are polite, professional, and willing to play to a hostile crowd. Which is not to say that the crowd was actively hostile, but there seemed to be few in attendance who did not regard SCO's recent litigation and public comments without a lot of suspicion or outright disgust. Though the event took place at the law school the crowd seemed to be comprised mostly of concerned technical professionals and students. People for whom what SCO is doing feels very, very wrong intuitively but who know too little about how the law works to be able to understand why. I seemed to have been one of only a handful of law students there.

In all of SCO's actions and public statements they seem to be making two general points, and they use each point to substantiate the other. One is that they are a wronged party seeking compensation. This argument is the general assertion that they had intellectual property (of some kind) that got contributed to Linux without their permission, and as such they are entitled to legal remedy. The specifics of the argument are numerous and several, ranging from contractual violations to licensing disagreements, and the remedies also various, although most seem to involve monetary payments to SCO, either as licensing fees or damages.

The second argument is that, even without the concerns about their IP being in Linux, open source software is incompatible with copyright law and the Constitutional mandate to promote the progress of science. SCO describes open source software as a scourge that must be rooted out, and they will lead the effort to do so. This view seems to be predicated on the notion that copyright requires that profit be made, so giving software away, thereby making no money, must not be legal. This is a paraphrasing of their argument so it may miss some subtleties that they think important, but even at their most articulate and verbose they fail to address the inherent inconsistencies in their claim. For instance, their view is inconsistent with the fact that many, many vendors (such as IBM, their number one nemesis) have made money with open source software. Their view also doesn't account for the fact that nowhere in the copyright statute is monetary profit mandated. SCO does, however, address the assertion that open source encourages innovation by saying that everything in Linux that makes it in any way valuable today isn't a product of open source development at all but rather because of SCO's allegedly stolen IP allegedly having been inserted into Linux. Without that IP, SCO has said before and said again on Monday, Linux would effectively be useless in any environment more sophisticated than "hobbyist." So SCO combines their "woe-be-us" arguments with the pretense that through their actions (lawsuits, Congressional lobbying, etc.) they are trying to save not only other vendors from having their IP misappropriated but the advancement of civilization itself.

Unfortunately SCO repeatedly refuses to address (in any substantive way) the criticisms that their stolen IP arguments are factually indefensible and that their legal claims on Linux resemble little more than an intellectual landgrab. Whenever SCO is confronted with the apparent fallacies of their legal position, SCO switches to their meta-message about the defects of open source. In one sense they may have to do this - they may have to impugn the GPL or else some of their legal arguments may immediately collapse. In another sense it justifies a deeply cynical view of their behavior. Like a magician employing misdirection, they prey upon their audience's ignorance of actual IP law to cast themselves as authorities in the area. Whenever they are challenged, they pull the rhetorical equivalent of "Look! Shiny object!" to redirect any ire to something else. An example of this tactic has been, and was again on Monday night, the reference to terrorism.

Unfortunately for all who favor civilized discourse as a means to solve disputes, SCO was the victim of a few Internet attacks, flooding their webserver and essentially forcing it offline. Although there was some speculation that the first attack had been wrought by a misguided Linux supporter, SCO used the incident as an excuse to excoriate the entire Linux community. SCO repeated these baseless claims against the community on subsequent occasions of denial-of-service ['DoS'] attacks, repeating their accusations more voraciously than they actually protected themselves from such attacks. The most recent "attack" stemmed from the MyDoom virus. SCO wasted no time last week erroneously and publicly impugning the Linux community. Monday was the first time I'd heard them acknowledge what experts had been saying days earlier, that the real source of the virus was spammers in Russia, possibly with mob ties, and that the SCO DoS was really a diversion against the real damage the virus caused. But rather than apologize for jumping the gun in castigating Linux supporters, McBride seized the revelation of the true source of the virus to drive home his arguments. People are angry at us, he said, because we are using the law to support our rights and people are trying to get even by doing bad things beyond the bounds of the law. See how important the law is? Now watch: when open source developers give software away for free, they are also acting beyond the bounds of the law. And we know how dangerous illegal activity can be; look at all the damage the virus caused. So isn't it time to stop this illegal problem of giving software away before we suffer any more damage?

He went on to link Linux with terrorists directly but the argument is far too baseless and farcical to even attempt to replicate here. I'm not sure I even could: I like my sentences to make some sort of sense and I don't think I could manipulate SCO's premise into anything remotely logical without distorting it into its exact opposite. I could point out, as someone did Monday night, that it was only proprietary Microsoft software that was vulnerable to the virus and not open source Linux, but I think it's more important to note how tactically SCO tries to defuse skepticism about their position by playing a provocative rhetorical card like terrorism.

And that's just one example. The presentation Monday night was essentially a rehashing of most of the things SCO has been quoted has saying in recent months past, although somewhat toned down (which makes sense, what with it being a hostile crowd and all.) I took notes the entire time and am linking them here. The notes are as accurate as I could make them, and they are interspersed with my own comments and analysis, some of which I have referred to above. I'm not a trained lawyer yet, but what I do know about IP bears little relation to what they believe they know. In typing the notes I referred to the relevant section of the copyright statute if I could. I may not know enough about copyright yet to be able to fully analyze their arguments, but I can read the law and note when it and their statements don't match.

Groklaw has some additional reports from people in attendance (or who watched the webcast) that make good points and are worth reading (in particular, scroll down to "Notes from Harvard" posted by 'jrc' at Tuesday, February 03 2004 @ 12:46 AM EST). Also Eric Jonas at MIT posted a good summary on his blog. And Groklaw has pictures of the event which prove I was there (lowest shot, lower left corner, green sweater.) [Edit 3/1/04: the pictures seem to have been removed. I was still there, however - honest!]

I just read this "analysis" on zdnet about SCO and the Linux indemnification issue it spawned. The article seems fairly attrocious in terms of its analysis throughout, but I had a particular question about this statement:

"As far as I can tell, the best time to get indemnification is the point at which you are acquiring a solution that involves the use of intellectual property that doesn't belong to you. Imagine, for example, buying a car and finding out a couple of years later that the inventor of the windshield wiper was suing you for the misappropriation of the patent. Wouldn't you want the company that sold you the car to accept responsibility for the claims?"

I didn't think that scenario could happen, that the consumer would have liability for misappropriated IP, in this case patent or in the SCO case (apparently) copyright. Only the vendor would.

Even SCO seems to be making the distinction between a car buyer and a Linux customer. At the Harvard talk Darl McBride piggy-backed on Eben Moglen's example of a customer going to Barnes and Noble and buying a book. Of course we can't sue you for going home and reading the book. SCO's argument is that they can sue you if you turn around and make copies of the book for all your friends. SCO thinks that with Linux there is no such thing as buying and reading a single copy of Linux, that because in a typical situation you make copies of the software to put on multiple machines that this is what makes you take on copyright infringement liability.

I don't think that the SCO analogy is impervious to challenge itself, but it does differentiate their argument from the zdnet analogy, which would seem to imply that after you take your car home you somehow replicate a copy of it for your spouse, with windshield wipers and all.

Thematically this post follows the previous one for the day.

Earlier in the day I attended a hearing at the National Institutes of Health. The topic was whether the NIH, having given public grant money as allowed by the Bayh-Dole Act (35 U.S.C. 203) to Abbott Laboratories to develop an important AIDS drug, could use the march-in mechanism of the Act to permit other vendors to make a generic version of the drug.

What started the controversy (and forgive typos and technical gaffes as I'm not an expert in this area; what I relate is the understanding I gleaned from the hearing) is that Abbott recently raised the price of its ritonavir drug by 400%. Ritonavir is a distinctive drug. On its own it appears to be too toxic to effectively fight the disease. But some of its side-effects make it an effective "booster" drug that, used in combination with other drugs, makes them more effectively potent. It seems to be the only drug that does this and is an important part of the drug regimen for many (perhaps most?) patients.

Raising the price so substantially has huge effects on public interests. One is financial, relating both to the patients who now need to come up with the money to pay for it, or the insurance companies who might foot the bill. Of course insurance companies pass along the costs eventually so one way or another the public pays. And if the insurance is part of a public program, the public pays then too.

Also, it squeezes other pharmaceutical companies on whom the public is dependant to make new drugs. The marketability of their other drugs is what will generate the revenue to support their further R&D efforts. But their drugs' profitability, and with it the ability to fund new R&D, is being undermined by the price increase, especially in light of the fact that Abbott did not raise the price of ritonavir as part of its own pre-combined drug (Kaletra). Typically a patient will take ritonavir and another protease inhibitor, often a drug from another company. With Kaletra the required ritonavir is already part of the same pill as the other protease inhibitor. Taking fewer pills means that on its own Kaletra should be financially appealing to the market (meaning fewer pills and fewer copays). But by not raising the ritonavir price by the same amount in its Kaletra formulation, Abbott is essentially subsidizing its protease inhibitor by making it, in Kaletra, now the only cost-effective combination to take.

From what I understand, there are people in Congress already concerned about the anti-competitive nature of such actions. The issue raised at the NIH focused on intellectual property and public policy implications attached to Abbott's patent. A patent gives a company monopoly power. With that power, unless barred by some other legal obstacle, a patent-holding company can do whatever it wants with the product the patent protects. The market is a captive audience that has to accept what's offered.

The implications of the patent monopoly system on pharmaceuticals have already been felt in developing nations where AIDS-ridden populations are too poor to purchase the drugs, and have no access to cheaper alternatives since there generally are none – the patent-owner is the exclusive supplier. In this instance there's an even more egregious problem though, which is that the reason the private company has a patent at all is because THE GOVERNMENT GAVE IT THE MONEY TO DEVELOP IT.

On the one hand, if we give someone a monopoly (e.g., through a patent), we can't be completely surprised when they act monopolistic. But in this case there's a different bargain that was struck: the people already got a piece of the action through the public grant. They've paid. It's not fair to make them pay again and again: through the pocketbook for the drug itself, and in terms of reduced R&D by other companies for new drugs because now their own drugs are less marketable. Especially because the premise of the patent system is to stimulate new discovery. A monopoly is supposed to be the tradeoff for bearing the development risk: the company takes the risk and gets a monopoly, but the public gets the good from the discovery. But in this case the public bore the risk too. Surely it's entitled, if not to the same abject benefit of profit, to at least not being victimized by the monopoly it enabled, in this case through direct public investment.

The question today is what can or should be done about it. The NIH is involved because it was the grantor, and under the Bayh-Dole Act which permitted the grant, it could use the march-in language to demand that the public be better served by relicensing the drug to other manufacturers. Or at least that's the argument. There's some controversy as to whether the march-in language could apply to this situation which has been described as one of pricing control. Many testified, including Bayh himself, that the Act and its march-in clause were not intended to be used in instances to control price. There was, however, at least one person who testified that the legislative record indeed supported the opposite conclusion, that this was indeed an intended application of the march-in mechanism, and Scalia was cited by someone in reference to (paraphrased) "The question is not what was in the legislators' minds but what the language of the law says." Then there was the argument that said that even if the legislative intent didn't generally support this type march-in employment, this was the perfect and appropriate occasion to use it anyway. The point was made that the march-in mechanism was put into the Act so that there would be a safeguard to protect the public's interest. If the public interest was being harmed through egregious pricing then it is the harm itself that justifies the intervention.

The Bayh-Dole Act, it is reasonably agreed upon, is a good law designed to make sure that discoveries wouldn't just sit on a shelf, that if they had public value they would be able to reach the public. This was particularly important for public entities who were good at developing things but not at marketing them. The Act fostered public-private partnerships by bearing some of the R&D costs publicly, with the idea that the public would reap the benefit when the private entity made it available.

But the lanuage of the statute requires it to be "reasonably available," and the argument is that disproportionately high prices, for no good reason other than the monopoly permitted the company to set them as such, means that the drugs are not actually "reasonably available." As such, the government has a duty, and an empowerment under the act, to step in and do what it takes to make sure those inventions, which the public already underwrote, become or remain "reasonably available." In this case the NIH would license vendors to produce cheaper generics.

The private entities say that they should be able to work this out on their own. Market forces and all. And there is the reasonable fear that the precedent set by such an intervention by the NIH could chill future development since the perceived exclusivity of the patents may turn out not to be quite so exclusive after all. But I don't think such abdication of responsibility to them is wise. First of all, they have interests that aren't necessarily aligned with that of patients. Returning shareholder value may result in different corporate behaviors than trying to keep as many people alive as possible. In fact I'm sometimes surprised that any private entity really wants to find a cure to certain diseases when it's much more profitable to keep people sustainably sick.

Secondly, drug companies will still produce drugs. The patent system remains (for now) unchanged, so a drug developed entirely out of private money will remain beyond the reach of the NIH. Yet I'm inclined to think that drug companies may still be willing to take the public money. Money is money and it helps bear the investment risk. Plus it's not like the NIH action here would force the company to lose money on the drug. Abbott has already made a huge profit from ritonavir since it hit the market, expediciously it turns out thanks to action by the government to hasten its release. High profits are permitted, but exploitatively high profits may not be and that should seem fair to all involved.

And thirdly because the public has the right to insist that we get value for our money, or at the very least not be exploited by the company benefiting from the fruits of that investment. We've already paid for this drug in inventing it. And then we pay and pay again to use it. US customers in fact pay more than customers in other nations, for a drug that the US public funded. This funding arrangement was supposed to be a partnership, and as such the public should have the right to ensure it be treated equitably within it.

It's this partnership idea that seems to have been the true goal of the Bayh-Dole Act, but it's incumbent on both parties to maintain it: the private company in not abusing its position, and the public in not letting it. The Bayh-Dole Act provided the mechanism for the public (via the government) to protect itself. For the NIH, as a representative of the Executive Branch's power to enforce laws, to do nothing would amount to an abdication of its duty and ability to protect the public's interest, which currently appears to be gravely harmed.

Today I took my first trip to the Patent Office for a meeting. It's in a newish building in Crystal City, Washington's urban-planning answer to La Defense.

The meeting aside, I approached the building with a sense of reverence, in no small part because of this letter to the editor I found in the New York Times archives:

To the Editor of the New York Times:

To the majority of uninformed inventors and the hundreds of applicants for patents, the charges of an inventor that the ills of our patent system are concentrated in the United States Patent Office and its personnel should call for further investigation. Another avenue has been opened to undermine and shake the confidence of American business. Another governmental agency is charged with being corrupt and dishonest, favoring big business and destroying the initiative of the individual inventor.

With the exception of the few Presidential appointees, the entire staff of the Patent Office is under Civil Service. Promotions in the various grades of examiners are made as the result of rigid promotion examinations and length of service. The rulings of the examiners and even the Commissioner of Patents himself are subject to review of the Court of Appeals of the District of Columbia. The personnel of the Patent Office is one of the highest in the field of scientific endeavor, and the honesty and integrity of the individual examiners has always been considered as being second to none. In all my experience, both inside and outside the Patent Office, not a single charge of irregularity imputed to an examiner or appointed Patent Office official has ever been sustained.

No system built up on court decisions and past rulings of former Commissioners by which a governmental agency or bureau is guided can be perfect. Time changes all things, even the Patent Office. There may be just cause of complaint that the system is too costly; that too long a time intervenes before a patent is granted, and that the interference procedure is so complicated that court rulings are often in conflict. This condition is not the fault of the Patent Office, because the examiners are governed by Congress and the courts. It is immaterial to the examiner whether one contestant or another is successful in a litigation in the Patent Office. As a matter of fact, it may be charged that the examiners are too lenient in the granting of patents, with the result that inventors are often misled as to their limited rights and subsequently become involved in litigation. The benefit of a doubt is invariably resolved in favor of the individual inventor, and the Patent Office attempts to encourage him to reduce his invention to practice.

For years the Patent Office has not had the requisite number of employes[sic] to conduct its work with dispatch. It is one of the very few self-supporting agencies of the Government, and yet many of its divisions are months behind in their work. The Patent Office building is a relic of Civil War days, and a part of the work is conducted in the old Land Office building. There are now over 70,000 pending applications -- nearly 1,350 applications for each examiner. Congress and not the Patent Office is responsible to the inventor.

[signed]
Aaron L. Applebaum, New York, December 19, 1927.

He was a patent lawyer who had also worked in the Patent Office for many years. And so it seems I will not be the first IP attorney in the family: he was also my great-grandfather.

In addition to the bugs, we have a mouse in the house. There might be more than one, but it could just be one who gets around since that's all I've seen at any one time.

I didn't have a problem seeing it scurry around the baseboards of the dining room, but I wasn't thrilled when it sauntered into my room. I really don't want a mouse crawling on me in the middle of the night or eating my stuff. But I saw him come in and managed to corner him by the door. He got scared and hid behind something, but not very well since his tail stuck out. I felt sort of bad: I didn't want him in the room, but I also didn't want to terrify him since he was very cute. Eventually he ran out of the room, and I plugged the gap under the door with a towel so all was well on my end. Perhaps not so much for my roommate, though, whose room he ended up running around all night. She was not amused.

Meanwhile, I decided to name him. I named him Sonny Bono, because I can't very well name him Mickey, now, can I? </IP law joke>

IP law joke explained: Mickey Mouse was about to fall into the public domain were it not for a bill to extend the terms of US Copyright protection passed by Congress. The bill was named for Sonny Bono. Maybe this really isn't such a joke: the whole thing really isn't very funny at all.

Written 7/23/04 but not posted until 8/03 due to travel.

My course schedule for this semester has not yet solidified, even though classes began yesterday. I know I am enrolled in one called "Copyright and Rhetoric." It has several focuses: one, on the presence one needs to comport oneself with to physically deliver an argument. Another is the study of rhetorical techniques in writing, and at the same time there's also the study of the policy arguments behind the copyright debates.

The class meets for three hours straight, and in the final hour of the first meeting Richard Stallman (RMS) of the Free Software Foundation gave a guest lecture about how words are deceptively used by those who would have intellectual property be, well, property. (I was happy to see RMS again. A few months before heading to law school I'd met him and told him I was going to law school. He tried to dissuade me, concerned that while I was off in school real battles would be won and lost without my assistance. Three years of uselessness while obtaining degree seemed a steep price. But I was steadfast in my commitment and he wished me well. Now he's concerned that my financial needs - read: loans - will further stymie my altruism. I'm having a harder time reassuring him on that point because my own concerns are so similar. Still, the idealism itself remains unscathed.)

He made several excellent points, the kind that sound completely obvious but you wouldn't have considered before they were pointed out, at which point you wonder how you didn't manage to think of them on your own. One such objection was that it makes as much sense to lump the discrete legal doctrines of patent, copyright, and trademark under the heading of intellectual property as the discretely different legal regimens of water regulation, rules for blood handling, ordinances on disposing of chemicals, and milk subsidization under the title "fluid law." Of course, with the "fluid law" example you at least base it on the fact that all the aforementioned objects of regulation are, in fact, fluids, whereas "intellectual property" is not actually property in any way that we've considered property to be in our law before. (Or at least not in the American legal tradition.) RMS also noted how insidious, superfluous words kept ending up sneaking into the policy discussion. Words like "protection." Will the song be ruined if it's played? he asked. Of course not, he answered himself. Then why does it need "protection?"

Although I have my definite leanings, I can still see merit in the policy discussion of whether it's best to treat "intellectual property" (using the term for the moment myself as the shorthand catchall of common parlance) legally the way it had been at its Jeffersonian origins, or if it's better to pursue a more comodified approach, as the advocates of "property" term would have it. But no amount of discourse will result in a reasoned decision if the discussion is warped by rhetorical pejorative.

Edits made 9/1. More 9/7.

Friday and Saturday there was an intellectual property colloquium at my law school, with various IP professors from all over the country and the world converging on BU and presenting the papers they are working on. I went to all 6 of the sessions, hearing 2-3 presentations in each. I mostly went to copyright ones, but I also went to one on the rise of patent litigation and another on trademarks and domain name disputes. I figure it's time to diversify my interests.

There were also opportunities to shmooze with the presenters so I did. The faculty members all had pre-made name tags with their names and their schools in the captions. I made my own tag and listed "IP Groupie" in my caption. It was sort of interesting, because there are large gaps in my knowledge of IP (to be expected given that I've never actually taken a formal class in it), but at the same time, I could speak competently and intelligently about many IP policy issues. Having read some of the international treaties seems to give me a leg up. An interesting undercurrent to the colloquium was that the study of IP theory tends to remain provincial. That is, that people learn the paradigm operating in their own country but not necessarily that of another country or the international paradigm that's slowly standardizing local IP laws. The effects of this oversight are that the power players on the international stage can more easily force the shape of the policies to their personal liking, because no one is really going to be watching (or understanding) what's going on to stop it.

Posted 9/16, should have been closer to 9/13.

I was talking to an aspiring musician the other night about Napster. She mentioned that one of the reasons it seemed intuitive to believe that Napster involved "stealing music" was because of the name, the "nap," part. In fact she believed that the name indicated that it was designed to steal music, and hence so labelled.

I corrected her, telling her it was rather based on developer Shawn Fanning's nickname for having nappy hair.

The conversation makes me wonder how much the filesharing debate might be different if the original name hadn't had such connotations.

The National Jurist is a free magazine given away at law schools. Its latest (January 2005) issue contains an article on plagiarism, accompanied by three hypothetical situations for readers to use to test their judgment on whether they constituted plagiarism or not. The second hypothetical seems clearly to have been an example of plagiarism (using a roommate's assignment from a previous year as the substantive basis for his), the third not (it was a collaborated work-product). But this was the first:

A first-year student reads a law review article and has an opinion on the topic discussed. He does more research and produces a well-written, fully cited article of his own which he submits to the school newspaper. However, nowhere does he refer to or cite the original article that gave him the idea for his opinion piece.

According to The National Jurist, this was plagiarism. ("This was an actual incident at Thomas M. Cooley Law School in Lansing, Mich. The student was required to write a public apology to the author of the original journal article and the incident was recorded in the offending student's record.") Now, perhaps the original case contained more facts than were included here, but based on those presented in the hypothetical, if such behavior constitutes plagiarism, nearly everyone, no matter how well-meaning or ethical, is going to be guilty of it at some point.

The general requirement to cite seems based on two purposes: to permit readers to retrace the steps of the analysis in order to test the conclusions, and to give credit where credit is due. Given that in this hypothetical the article was otherwise "well-written [and] fully cited," the first purpose seems completely satisfied. The remedy of having to send an apology seems to suggest the school thought the student had some moral duty to reference the author of the law journal article, but to infer such a duty is extremely problematic and far beyond any of the general premises behind the citing rule. A mandate that any inspiration needs to be referenced and cited intrudes impermissibly and chillingly on an author's own intellectual and expressive processes, and, as a practical matter, is impossible to fulfill. Inspiration often follows no clear path. It could be based on something encountered 5 minutes ago, or a spark of an idea that has been smoldering for years, with the original incendiary concept long since forgotten. It could also be a product of subconscious analysis compiling ideas from several sources. For such reasons as these, accurate citing will often be impossible.

Forcing an author to credit someone else, whose work has only the most tenuous connection to the subsequent author, strips the author of the credit he earned with his initiative to synthesize ideas and create a new work and redistributes it to a party who played no role in its creation, except to have been in the panoply of sources of ideas the subsequent author has at one point encountered. Such redistribution fails to support any moral goals that such a policy is purported to promote. If the student had directly built his analysis on the tenets proposed by the journal article, then citing would have been warranted, and justified as being in pursuance of either of the rule's purposes. But since the scenario says that the article was "well-written [and] fully cited," the fact pattern suggests that the analysis was in no way dependent anything put forth by the journal article. Its independence should have dispelled any further citation requirements.

To require referencing the journal because it kicked off the intellectual journey for the student would be the equivalent of requiring me to have referenced The National Jurist in writing this post. I chose to anyway, because I chose to base my analysis on specific material mentioned in the article. But if I had simply read it a few days ago (as I had), contemplated the issue of plagiarism in general, and then wrote to reflect some of my thoughts on the subject, I cannot see how I would have had any requirement to in any way reference or credit The National Jurist, just as I had no duty to reference or credit the NBC Evening News, the New York Times, Salon Magazine, Slashdot, the local news, my classmates, my mother, or any other source of mental inspiration I may have recently encountered in drafting this post.

What mostly concerns me is the enormous threat of sanction that plagiarism carries with it. My academic and legal careers could be seriously jeopardized if I were ever convicted of it. In terms of any reasonable definition of plagiarism, I have no doubt that I will never commit it: I am not interested in co-opting any one else's work or credit - I accept the wrongness of it, and my own system of ethics would not permit me to be tempted to try to justify it by my own self-interest. I am also meticulous and pedantic enough in my nature to really want to leave the necessary breadcrumbs behind my own analyses so that they could be retraced.

But these expansive definitions of plagiarism leave me scared and vulnerable. I think they identify harm where there is none, and target behavior I think is otherwise reasonable. Behavior that I may very likely be inclined to pursue. Behavior where the only moral violation would be its prohibition.

I saw a headline today on Salon Magazine: "Mouse loses federal protection."

I immediately thought, "Mickey! He's finally free!"

But, alas, it was just for an article about a kind of mouse losing endangered species protection.

It does seem sort of ironic though that we give more federal protection to fictional mice than to real ones.

I just learned about them today. They seem to be what results when people take different (and contrasting) songs (or other art, apparently) and put them together to create something new.

Which is how I found out about them today, because several people have apparently put together rap songs with Huey Lewis and the News' "Power of Love."

I heard two great versions today, one on an Adam Curry podcast (Q-Tip vs. Huey Lewis and the News: "The Power Don't Stop (Mr Shakyhands Man)"), and one here (Snoop Dogg vs. Huey Lewis and the News: "Drop It Like It's Huey").

The sad thing is that under US Copyright law, they might not be legal. They strike me as being derivative works. But I've got to believe there's some mechanism under fair use to allow for such innovation. Or if not, there should be. The world would be a poorer place if this kind of artistic innovation were not encouraged. Since the whole point of copyright law is to encourage artistic innovation, it seems that the law should accomodate these kinds of creative melanges that really add something to the cultural dialog.

I don't know, maybe I wouldn't be so enthusiastic about it if I didn't like the mashups. But I thought they were really good, adding something new and exciting to a song I really like ("The Power of Love") but not really taking anything away from it. Sure, it sliced the song up a bit, but it rechanneled its musical energy into a really interesting rhythm. And it's not like I can't go back and listen to the original if I really want to hear it the way it was initially conceived.

Also, I think it's got to be good for both artists involved. As listeners of one genre (eg, the rap) simultaneously listen to the music of another (eg, the Huey Lewis and the News) it's bound to expand the commercial prospects of the respective featured artists through the exposure to the other's audience.

Today the U.S. Supreme Court will hear arguments in this case. It's a pivotal case for copyright law, and even more pivotal for the future of technology.

You've all heard of filesharing. Napster was the first to popularize it as a way of sharing songs, pioneering a new kind of technology called "peer-to-peer," or P2P.