Sounds Like A Job For Corduroy

Traveling tomorrow to Digital ID World, just for the day (unfortunately). Sez Marc: "Meanwhile this place is filled with suits."

DMCA, Protector Of Fair Use

No, really! Fred von Lohman explains:

Watch for more ISPs and Internet publishers to invoke §512(f) to vindicate their fair use rights in court. Armed with an affirmative cause of action, as well as a mandatory fee shifting statute, fair users may find themselves magically transformed from defendants into plaintiffs, entitled to bring litigation on their own terms against copyright owners who fail to think twice before sending out DMCA takedown notices.

Very good for bloggers, as you've not doubt already discerned; Mary Hodder's posts from last year provide the context. (Love the line at the top of Mary's blog right now: "No, you don't have to pick up spam off the floor.")

Navigating The Ballot

California's Proposition 64 takes aim at the "private attorney general" portion of Business & Professions Code Section 17200—the part that lets non-injured parties sue on behalf of the general public. For good coverage of the coverage, see the UCL Practitioner. While Dan Gillmor thinks both this initiative and Prop. 71 (stem cell research) go too far, unless they make their living by bringing these actions legal practitioners are likely to tell you the opportunities for abuse are plentiful and frequently taken. Two of my Los Angeles colleagues wrote an article last year that expands upon this viewpoint: "The public...does not need lawyers, motivated by attorneys' fee awards, to 'protect' them from business practices that may cause no harm or were already resolved in prior litigation."

Lexmark Injunction Reversed

In a detailed decision, the Sixth Circuit today reversed the district court's injunction in favor of Lexmark and against Static Control Components concerning copy protected printer cartridges. No time to blog more or even read the opinion yet (so I don't yet even know whether the amicus brief we filed gets any discussion), but Jason Schultz at Copyfight has the lowdown, and here's Static Control's press release.

IP MEMES: POD LAW 101—AND MORE

(My October contribution to IP Memes follows.)

POD LAW 101

The last three weeks have seen an explosion at the kind of lightning
speed only the Internet can deliver. If you haven't heard of
"podcasting" (1) you're not spending much time at all reading weblogs,
and (2) you just did anyway. Podcasting is a brilliantly simple
concept that involves creating an MP3 audio recording and making it
available for download. Why is it a "killer app?" Several reasons.
More and more people now have a portable digital audio player of some
kind, probably an iPod based on the success Apple has had with its
product. And a new, open source software application, iPodder,
conceived by blogger and former MTV veejay Adam Curry, combined with
RSS enclosures (don't worry too much about what those are if you don't know), does timeshifting for MP3 players like TiVo did for television. On the
listener side, podcasting is just another example of the Internet
opening doors to places people want to go that mainstream media
outlets can't cover or just ignore. On the creator side, podcasting
was practically inevitable in a world ever more replete with
individually and independently created content, aka microcontent:
weblogs, moblogs, photo/animation/digital video sharing, etc.

So where's the IP in this meme? There're probably more than I've
thought of yet, but at least three sticky areas are apparent at the
inception of the podcasting wave. First: is podcasting just another
form of Internet radio, subject to all the attendant regulation? It
seems pretty clear the answer is "no" because there is no streaming
involved, but the issue remains untested. Second: what about
copyrighted material incorporated into a podcast? As podcasters are
unlikely to be universally scrupulous about obtaining licenses and
permissions, the fair use doctrine should get a good workout here.
Third: will Apple pour linguistic cold water on the movement
by seeking to enforce its iPod trademark? Last spring it did just
that with a now defunct application called "pPod," which created an
iPod-esque interface for PocketPCs. Unlike the present phenomenon
however, pPod didn't come with functionality that makes the iPod an
even more attractive purchase than it already is, coupled with an impressive
groundswell of support. Google already shows some 110,000 hits for
"podcasting," and advertisers have bought sponsored links for
podcast-related searches.

Links:

• Linux Journal's SuitWatch, The 'pod Bang
• IT Garage, Why podcasting isn't radio
• IT Garage, DIY Radio with PODcasting
• Engadget, How-To: Podcasting
• iPodder software
• iPodder.org
• Podcast.net
• StarBrite Solutions, former makers of pPod
• Adam Curry interviewed on IT Conversations

PODS OF THE BLUE DEVILS

When I started out in college, all I remember being given by my alma
mater was dorm room wallpaper in the form of innumerable parking
tickets. In contrast, this year's crop of Duke University freshmen
were given Apple iPods -- not just as a really nice perk but to assist
them academically. In response to criticism of the program as
frivolous and excessive, Duke's Manager of the Office of Information
Technology, David Menzies, recently explained how students are putting
the iPods to work. Professors are making course materials (podcasts?)
available for the students to download, and the students are
encouraged to use them to record lectures and other course-related
audio. Menzies is also quick to squelch rumors the student 'pods came
packed with 5,000 songs: "The only preloaded songs on these iPods are
the Duke fight song and alma mater."

Links:

• TechNewsWorld Viewpoint
• Duke's iPod page

TIVO TALK

TiVo CEO Mike Ramsay did a hallway interview with technology
journalist JD Lasica at the recent Web 2.0 conference in San
Francisco. Ramsay discusses dog-mangled TiVo remotes, his vision for
Internet television, the marriage of TiVo and DVD burners, program
sharing via TiVoToGo, the role of the FCC, and more. There has been a
bit of a compatibility flap lately about the DVD burning TiVos, which
will play but not burn content from other Series 2 TiVos. This does
not appear to be due to any copy controlling digital rights management
added by TiVo, but rather to differing compression standards between
the products.

Links:

• Engadget Interview
• PVRblog

CERT SOUGHT: GROKSTER

No surprise here: on October 8, the RIAA and MPAA filed their
petition for certiorari concerning the 9th Circuit's recent Grokster
decision, which upheld the legality of P2P networks. The petitioners
clearly want the high court to revisit its Betamax decision, citing in
their Question Presented the "millions of daily acts of copyright
infringement that occur on their services and that constitute at least
90% of the total use of the services."

Links:

• The Importance Of...
• Deep Links

CERT DENIED: VERIZON

The high court will not review the D.C. Circuit's determination that
the DMCA does not require ISPs to turn over identifying information
about suspected file sharers in the absence of a court order.

Links:

• Copyfight
• Deep Links

DRM LINE

This Wednesday I'll be part of a panel at the third annual Digital ID
World conference that will look at "trusted computing," a big part of
which is Microsoft's NGSCB (Next-Generation Secure Computing Base) due
out in the next version of Windows. Microsoft insists NGSCB is not
"DRM on a chip," but critics say digital rights management was the
original motivation for the architecture, and that it is designed to
increase controls by hardware and software manufacturers and content
providers. Microsoft CEO Steve Ballmer recently leveled a back-handed
criticism of the unobtrusive DRM used in Apple's iPod by quipping the
most common format of iPod music is "stolen." In January, DRM will be
the subject of its own conference in Berlin.

Links:

• Digital ID World 2004
• Register article on Ballmer's iPod comment
• 3rd DRM Conference