weblawg.net: Information Society through the Prism of Law Costin on IP, IT, Media, and Business Law

The pro-copyright, pro-DMCA, anti-counterfeit lobby groups would have you believe that all unauthorized reproduction (and distribution), colloquially known (inaccurately) as piracy, is horrid for the industries concerned, and is destroying them.  They go so far as to call it theft, which it isn’t.  It can’t be reduced to a single term, like “theft” or “piracy”, because it is not actually a crime, but the commission of an otherwise legal act made tortious (wrong in a civil, as opposed to criminal way) by the lack of authorization.  Theft is in and of itself a crime, as is piracy.  Copying is not.  Copying without authorization is a civil wrong.  I’m going to end that discussion before I get into a rant (which is being saved for a future post).

Anyway, I want to take a different tack:  Many say that unauthorized copying actually benefits the concerned industries.  Do you think this is true?  If so, which industry benefits the most?  I’ve created a poll, which is to the left of this post, and I would like you to let me know what you think.  Feel free to comment to this post.  I’ll repeat the options below (but the poll is on the left; it’s neater that way, especially since I’m still messing with the CSS for this new template):

Which industry benefits the most from unauthorized reproduction/distribution (i.e. “piracy”) Sorry, there are no polls available at the moment.:

• Software - Standards are reinforced and the companies profit through the necessity created by ubiquity. Ubiquity creates a spiralling increase in demand.
• Mainstream music - Popularity thresholds are crossed that are similar to the “standards” concept. The overall popularity increase yields revenue through the popularity-increases-demand model, with a net increase over the everything’s-paid-for model that has lower popularity; touring revenues further increase from the increase in popularity.
• Long-tail, independent label, and other rarer musical acts - The exposure through shared music now is no different from years ago; fans of these genres are likely to purchase albums (often directly from the artists at higher profit margin) and go to small live venues.
• Movies - Popularizing the brand in anticipation of the sequel is more important than initial returns. The movie industry in now a branding and franchise industry. In an industry now increasingly dependent on sequels and the application of the “franchise model” to entertainment, building a brand through any means whatsoever is beneficial.
• No one - Everyone loses when unauthorized reproduction is rampant. Bring on the Copyright Czar!

Read More…

Posted under Business Law, Information Technology, Intellectual Property, Video Games

Here’s the rest of that post:

GOALS

The goal of any legislation is to balance concerns of interested but competing parties, and to approach this balance, as much as possible, with a public interest bias.

The concerns were these: Read More…

Posted under Information Technology, Intellectual Property

I want to suggest an alternative paradigm to the statutory regime for creative works as intellectual property, a.k.a. copyright.  I’m not going to get into detailed explanations of the existing Copyleft and other alternative paradigms to copyright.  But I’m going to borrow from them, and from discussions I’ve had with industry players and legal theorists (lawyers and academics) to, I hope, open some discussion on what else can be done.

This is not meant to be a set of specific fixes to C-61.  Prof. Michael Geist has been doing an exceptional and detailed job of that on his blog at http://www.michaelgeist.ca.

Instead, these ideas presume us not already headed down C-61 Avenue, but at a fork where C-61 is one of the roads being touted.  It is not the only road currently available, in the sense that one can opt out and instead choose licensing options to circumvent copyright.  Rather, these ideas are ways to do something different from C-61 entirely, but that would still be a statutory avenue rather than the contractual private road of licensing.

Let me restate that analogy:

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Posted under Information Technology, Intellectual Property

The electoral district in which I live is called “Vancouver Centre.”  My elected representative is the Honourable Member of Parliament, Dr. Hedy Fry.  Dr. Fry is something of an activist; she has always been an outspoken representative of her constituents.  Generally, I like her.  I vote for her.

A fellow constituent of Vancouver Centre, Chuck LeDuc Diaz, runs a blog called Mad Analogy.  At his blog, he posted a letter he received from Dr. Fry in response to a letter he sent her informing her of his concerns regarding Bill C-61, An Act to Americanize Amend the Copyright Act.

Chuck’s post dealing with, and including, Dr. Fry’s letter:

http://www.madanalogy.com/2008/07/hedy-fry-on-c-61-canadian-dmca.html

Dr. Fry’s criticisms of C-61 are not shy:

This Bill does not serve either consumer or creator well.  It prescribes narrow, punitive solutions to a complex problem.  In fact the Bill could well have the effect of curbing the use of digital technology, to the extent that it becomes useless.  This would be a pity!  As well implementation of the measures in the Bill would be nearly impossible, unless one abandons all privacy rights or imposes locks on the digital technology that severely limits [sic] its application.  How to monetize digital technology to reward the creator and allow free and open use by the consumer is challenging.

Dr. Fry’s fears are correct,  I would like to assist her on one political point:  It would behoove her to trumpet Canada’s present privacy laws - leading examples on a global scale - of the protection of individual information rights vis-a-vis both government and (here’s where we really shine) corporations.  The potential damage to privacy rights not only brings us more in line with a U.S. capitalist-fundamentalist approach to privacy, it damages our international reputation, which has made us an ideal trading partner for European companies who cannot infringe their own national policies through trade.  In other words, European companies like to trade with us because our privacy laws make it easy for them to keep themselves clean by their own standards. Read More…

Posted under Intellectual Property, Privacy

Cyberion, at Tazzu, posted a link to the Vancouver Province story on the threatened border checks on the legitimacy of electronic media. (Cyberion’s post)

I had some rather strong feelings, and ranted the following:

This is one of the nastiest and most frivolous pieces of legislation I’ve heard about in a long time. If it were used to gather evidence against commercial pirates or others who make their living off contraband, I could maybe (and I say that stretching my “maybe” like a yoga pose) see it as legit, but really it feels like another latex gloved finger of the RIAA/MPAA coalition. Where are the civil libertarians? ACLU, EFF, etc.? I know Prof. Geist is opposed, but is his the only loud voice? This could do to U.S. tourism what a strong $CDN has done to ours; it gives people a reason to stay home. What will be the criteria for detention? A predominance of unlicensed material, or just any possibility of an inadequate license (e.g. a shareware version of CuteFTP downloaded in the Win9x days before the trial license had an expiration built in)? Will people have to carry student cards and proof of enrolment to demonstrate the likelihood of academic use of academically licensed software? Are we to trust the border guards’ intimate knowledge of the arcane variations on licensing, the differences between fair use (U.S.A.) and fair dealing (Canada), and judgments such as BMG v John Doe? What about watching time-shifted video downloaded from a PVR to a video iPod, legal under Sony v Universal Studios?

And for all of the talk about enforcement of the DMCA, are we expecting the border guards, for whom I generally have had pretty good respect due to my many pleasant - even funny sometimes (yes, U.S. border guards crack jokes sometimes) - trips across the border, to go to law school boot camp to learn the intricacies of the DMCA exceptions (17 U.S.C. 1201(f), among others)?

I’m going to go take pictures of the Yukon and have some beers and pretend this isn’t happening.

This rant is bearing in mind that all of the music on the microSD card in my phone, with which I travel and to which I listen as an mp3 player, was put there legitimately - under the U.S. Copyright Act’s exception for interoperability (s.1201(f))and the First Sale Doctrine and the Canadian Copyright Act’s personal copying exemption (s.80) - as it was all ripped from CDs I own. So I’m not the guy they’re looking for. But how long would I have to wait at the border while explaining the legitimacy of my music to someone who has neither read the acts, nor studied them in academia and in practice, nor read the relevant cases?

Time to start carrying my records around with my record player, amp, speakers, and a small nuclear power station to give me the necessary AC current. I can get those through the border, right?

Posted under Civil Liberties, Information Technology, Intellectual Property

Terra Nova has an interesting piece on the issue of fair play in virtual worlds. I think the question is whether “griefing” could be considered infringement to fair play, which implies that fair play exists as a principle, and infers some kind of legal basis for it.

Fair Play (at Terra Nova)

Following is from my paper, “Riding Waves of Code: Looking for Infringement in the Evolution of Game and Virtual World Mods”:

Is it possible to protect game-play as expression? What is game-play in its expressed form? Going beyond the video game as either merely a non-linear audiovisual work or merely a literary work of code and rules, it is the interactive synergy of those elements as a platform, combined with the human choice elements of the user/avatar cyborg. The game is not a game without the player, but merely an opportunity — a potential. Though copyright subsists in the component elements of that potential, there can be no doubt that the game-in-action expression as well.
…
If copyright subsists in game-play as expression, who owns it, and what constitutes infringement?
…
Yet the courts have not found that the platform creators have rights in the actual game-play. Looking at the Game Genie cases, … the courts seem hesitant to deem title in a copyright for game-play as an expression.
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Is there a right to fair play that can be derived from the moral rights in collaborative creation of game-play expression?
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Moral rights can be seen as a hybrid of Freedom of Expression and Copyright — a right to control your expression without undue or unjust interference or distortion by others. This was violated in the Mr. Bungle affair in LambdaMOO, and this was violated in the Black Snow affairs. A previous paper argued that the consent given to engage in virtual mortal combat between two avatars does not include consent to actions outside of normative combat. That paper argued mainly against inappropriate verbal expression … but if game-play is expression, then is not cheating, or competitive advantage modding [or griefing, in the case of this post] also inappropriate expression…?The protection of game-play as expression … is a foundation for the establishment of fair play.

Posted under Intellectual Property, Video Games, Virtual Worlds

The difference between commercial piracy and private copying was clear in the Copyright Act’s s.80, it was made clearer by BMG v. John Doe, and now we can see the difference in action. Professor Michael Geist compares the RIAA’s “hassle the P2Pers” policy with CRIA’s action against commercial pirates:

CRIA Announces Shut Down of Canadian Counterfeiting Operation

Where was the RIAA’s action or applause in this investigation by CRIA and the RCMP into the kind of activity that really does impact the recording industry?

Just so we’re perfectly clear about Canadian law, which is pretty reasonable (and hence the revolt against Minister of Information Control Jim Prentice’s Copyright Reform Bill):

Copyright Act, R.S.C. 1985 c.C-42, s.80:

80. (1) Subject to subsection (2), the act of reproducing all

 or any substantial part of

(a) a musical work embodied in a sound recording,

(b) a performer's performance of a musical work embodied

in a sound recording, or

(c) a sound recording in which a musical work, or a

performer's performance of a musical work, is embodied

onto an audio recording medium for the private use of the person

who makes the copy does not constitute an infringement of the

copyright in the musical work, the performer's performance or

the sound recording.

Limitation

(2) Subsection (1) does not apply if the act described in that

subsection is done for the purpose of doing any of the following

in relation to any of the things referred to in paragraphs (1)(a)

to (c):

(a) selling or renting out, or by way of trade exposing or

offering for sale or rental;

(b) distributing, whether or not for the purpose of trade;

(c) communicating to the public by telecommunication; or

(d) performing, or causing to be performed, in public.

What we have here is the explicit statement, in the legislation, that private use copying - anathema to the RIAA - is a personal act that does not constitute a crime; and the exception that when that copying becomes commercial in almost any way (that’s a pretty thorough list in subsection (2)) it is illegal. We have now seen this latter pursued by CRIA and the RCMP, and nothing but noise from the RIAA. It seems that the RIAA only has teeth when going after teens, grandfathers, and even dead grandmothers (EFF Amicus Brief; Lava, et al. v. Amurao), and perhaps CRIA is starting to focus on actual criminals.

Posted under Intellectual Property

So Ford Motor Company is a little bit confused. They are claiming some form of intellectual property in photographs of specific Ford Mustangs. Not in the abstract image of the iconic car, but in the photographs taken by enthusiastic owners of their own [presumably] paid-for cars.

Slashdot:
http://yro.slashdot.org/article.pl?sid=08/01/14/1628204&from=rss

AdRants:
http://www.adrants.com/2008/01/ford-slaps-brand-enthusiasts-returns.php

Culture Garage:
http://culturegarage.com/2008/01/11/ford-sometimes-i-think-you-want-to-fail/

What is it that they are confused about? Well, let’s look at the tangle of issues they could, conceivably, be conflating: likeness rights, trademark, copyright, and IP licensing. Oh, what the heck, let’s throw industrial designs into there too. I’ll attempt to simplify this for Ford; come along on the ride if you like.

Read More…

Posted under Business Law, Intellectual Property

End-User License Agreements aren’t all bad. They are necessary for interration - that incorporation-like thing for virtual worlds that Castronova talks about - in order to set out and delimit the game space. It is when they violate Castronova’s closed/open virtual world dichotomy that they become problematic. When EULAs are used to transgress the VR/RL* membrane in order to extend IP beyond its legislative bounds that they become abusive.

(Incidentally, I’ll talk about how they can be used to mediate that transgression in other contexts - like the user/avatar boundary - in another post.)

Jack Balkin states that platform owners / game developers control the artificial world through either code, contract, or a combination of the two. A simple example of this is controlling the use of offensive or profane language in family-friendly artificial environments. Many if not most of these spaces employ some sort of language filter.

The effectiveness of language filters at catching the undesired words or phrases, without too many false positives, varies considerably and is never perfect. Give a pre-teen a text box and he or she will try to find a way to say the things Mom and Dad don’t permit at the dinner table. So what is more contextually flexible but less directly enforceable than code?

Law.

*Virtual Reality / Real Life

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Posted under Information Technology, Intellectual Property, Virtual Worlds

Not discussing the latest Canadian copyright reform bill, or the Canadian DMCA as it has been touted, to kick off weblawg.net would be like Han Solo ignoring his friend in need barreling down the trench of a moon-sized space station.

Discussing the evolution of Intellectual Property in the information age is a major reason for this site. IP today is something like criminal codes in the 18th century; it is a regulatory paradigm for a new frontier. Our interactions - the interactions that are the silken web of society - are increasingly becoming dependent on the exchange of information. Human interaction has always been the product of information exchange - it has been said that the ability to talk is what separates us as a species, and other species with not-too-primitive forms of communication also evolve communities; what has changed is that the exchange itself is becoming informationalized. We no longer carry information upon the backs of mechanical means such as messengers, paper letters, carrier pigeons, etc., but instead entirely through electronic smoke signals carried passively by fibre-optic and copper. We can informationalize, or virtualize, nearly anything, and transmit it all in the same way, regardless of origin or destination. Music no longer needs vinyl, tape, or even aluminum, let alone a live performer to be exchanged or present to be perceived. Books don’t need paper; money doesn’t need coins or bank notes; you get my point.

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Posted under Communications, Information Technology, Intellectual Property