October 09, 2005
The Chilling Effects of a JibJab Cease and Desist

I can hardly believe this, but JibJab, the folks who fought so hard for their fair use rights when they put out their "This Land" video, sent a cease and desist letter to The Black Lantern, who had used a few seconds of the "This Land" video in making a video paired with The Legendary KO's mp3 "George Bush Doesn't Care About Black People." There's a lot of layers of mash-up here, so let's take this step by step.

During the 2004 election campaign, JibJab made an animated short video that spoofed both candidates, set to the old tune of (and using some of the lyrics from) Woody Guthrie's "This Land is My Land."

Ludlow Music, Inc., purported rights owner in Woody Guthrie's "This Land is My Land," threatened JibJab with cease and desist letters claiming copyright infringement and seeking to halt distribution of the video.

EFF took up JibJab's defense and uncovered embarrassing facts for Ludlow, such as that Guthrie himself was very accomodating towards those who wanted to sing or modify his songs, that Guthrie had lifted the tune almost completely from an old Carter Family song, and that due to a tardy renewal, the song had entered the public domain.

JibJab was allowed to continue distributing its video.

Skip ahead to 2005 and Kanye West has a popular song out entitled "Gold Digger."

In the aftermath of Hurrican Katrina, Kanye West criticized President Bush on NBC during a live benefit concert, saying among other things, "George Bush doesn't care about black people."

Gold Digger was remixed by The Legendary KO, with altered words by Big Mon and Damien a/k/a Dem Knock-Out Boyz. The remix was entitled: "George Bush Doesn't Care About Black People." The mp3 swept the internet.

The Black Lantern mashed together video clips from the Katrina aftermath, West's Gold Digger video, and other footage of President Bush, pairing it with the Legendary KO's remixed song, making essentially a music video for the remixed song. The video took the already-powerful song to a new level of political critique and started circulating on the internet.

The original version of The Black Lantern's video contained about four snips from Jib Jab's "This Land" video, totaling about nine seconds. (Precise details below).

The Legendary KO, who remixed the song, learned of video efforts like The Black Lantern's and wrote on his website, "While the videos themselves represent the visions of their respective editors and not necessarily The Legendary KO, we encourage you to share them with others in hopes that they might bring more attention to the situation in the Gulf Coast." Here, one mashup artist saw that another had "already started to pick up where we left off..." and implicitly sanctioned the follow-on creativity.

But on September 29, JibJab had attorneys with Goldring, Hertz & Lichtenstein, L.L.P. send The Black Lantern a cease and desist letter. (I have seen the letter but have been asked not to distribute it.) Jib Jab claimed copyright infringement, but also seemed to emphasize that due to "the highly partisan nature of the [Black Lantern] Video" the use of clips from "This Land" mistakenly conveyed "a message to the public that JibJab endorsed the political message of the Video and authorized [Black Lantern's] use of the infringing material."

The Black Lantern took the video down from 9/29 until 10/4 when the approximately 9 seconds of JibJab footage had been replaced with alternate video. The Black Lantern also spoke to one of the JibJab brothers and their attorneys on the phone to verify that no further legal action would be taken if the clips were removed.

The new version of the video still packs a powerful message, but obviously if everyone threatens you to remove their 9 seconds or face litigation, then it doesn't take long before you don't have a video anymore. Additionally, nearly a week passed when The Black Lantern couldn't distribute the video's message. When one speaks about current events, every day is preciously relevant, because as time passes our attention is directed to other things.

Let's step back from a debate about the legality of the remixed song by The Legendary KO, or the use of the Kanye West video clips by The Black Lantern and focus first on this question: Was The Black Lantern's use of the 9 seconds of "This Land" clips a fair use under U.S. Copyright law?

The answer is almost certainly: Yes.

17 U.S.C. 107 provides that "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work." No one factor is determinative and other relevant factors may be considered.

Factor 1: Purpose and character of the use.
The Black Lantern provides this video for free from his website. It is licensed under a Creative Commons Attribution, Non-Commercial, Share Alike license. Currently the only "ad" on his site is a small Red Cross Donation banner. The purpose of the use of the JibJab clips was expressive and transformative speech. The character of the use was non-commercial political expression. This factor weighs in favor of The Black Lantern.

Factor 2: The nature of the copyrighted work.
The relevant copyrighted work here is the JibJab animated short. JibJab does hold a registered copyright in the short and its registration was attached to the cease and desist letter they sent. That registration is informative here, for it was amended by the Copyright Office to note in the "Derivative Work" section of the Copyright Registration that JibJab's "This Land" "contains previously published music and photographs." That is, the Copyright Office wanted to note what is obvious to any viewer of the short, that "This Land" builds on the creativity of others. Without Woody Guthrie (or the Carter Family) and without the various photographs of political figures made by others, JibJab could not have made "This Land" quite the way they did. The Black Lantern is also building on the work of others, but somehow JibJab feels they should own the market for derivative works.

Nonetheless, an evaluation of this factor more properly notes that JibJab's copyrighted work is a work of creative expression which is generally given greater protection than say a mere compilation of facts. So, this factor slightly favors JibJab, with the ironic proviso noted above.

Factor 3: The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
JibJab's "This Land", not counting the end credits, is about 2 minutes and 20 seconds long. The Black Lantern used several non-sequential clips from "This Land" that totaled about 9 seconds in length. Most JibJab clips used were on screen for a single second or two, with the longest clip lasting a little under 4 seconds. The amount used is therefore both miniscule in itself and amounts to less than 5% of the whole work. The portions used were primarily comic images of Bush, and could not be characterized as "the heart of the work" or somehow more substantial than other portions of "This Land". The clips were interspersed in The Black Lantern's video beginning at 0:38, 2:17, 2:46, and 3:51. The clips used make up an even smaller percentage of the four minute and nine second Black Lantern video than they do of "This Land." This factor weighs in favor of The Black Lantern.

Factor 4: The effect of the use upon the potential market for or value of the copyrighted work.
JibJab always distributed "This Land" over the internet at no cost to downloaders and still provides it this way today. The primary value of the work is its ability to drive people to JibJab's website where they can be forced to watch advertisements prior to watching "This Land." The Black Lantern's use of these clips does nothing to harm the potential market for or value of "This Land." Indeed, to the extent that it reminded viewers of a video they had probably not thought about for over a year, The Black Lantern's use was more likely to have a positive effect on the value of "This Land" to JibJab. These spread-out nine seconds of "This Land" did not serve as a market substitute for "This Land" as no one who hoped to enjoy the comedic aspects of "This Land" could reasonably choose The Black Lantern's powerfully saddening video instead. This factor also favors The Black Lantern.

Other relevant factors: Political speech warrants special First Amendment protection.
JibJab was right about one thing: The Black Lantern's video conveys a political message. Copyright law is always in tension with the First Amendment for Copyright law expressly prohibits certain expression, while the First Amendment demands that Congress make no law abridging the freedom of speech. Congress has resolved this dilemma by building into copyright law the free speech safety valve of fair use. Subject to the factors discussed above, fair use permits the use of copyrighted material without permission of the creator, precisely in order to guarantee the free speech of the fair user required by the First Amendment and to foster discussion that itself promotes progress (as copyright law itself is also required to do). Political speech is the very heart of the speech intended to be protected by the First Amendment. We formed a Republic where we were guaranteed the right to critique our political leaders. Without that we have fallen short of the promise of securing to ourselves the blessings of liberty.

Moreover, nothing about a fair use of a copyrighted work conveys any approval or disapproval of the original author. Fair use is explicitly a no-permission-required system. JibJab can wring its hands that someone might think The Black Lantern sought and received permission to use JibJab clips and that consequently JibJab implicitly supports The Black Lantern's political message, but that's all their allowed to do: wring their hands. When our fair use system is working properly everyone knows The Black Lantern didn't need and didn't ask for permission and consequently they make no inferences about JibJab. It is only overbearing cease and desist letters like the one JibJab sent that help to create a climate where people might begin to assume that any footage they see used in any video they find on the internet must have been licensed by the creator, who must consequently approve of any political messages contained therein. So, a consideration of the political nature of The Black Lantern's speech also weighs in favor of a finding of fair use.

The most shameful part of all this is:

1) JibJab should have known better. They know fair use. They rely on fair use every day.
2) Goldring, Hertz & Lichtenstein, L.L.P., JibJab's attorneys in this matter, should have known better. They too know fair use (and otherwise seem like decent folks) and should have told their client these claims were baseless and harmful to JibJab's own interests, in both the short and long term. JibJab was getting much better fair use advice when EFF was providing it.

As always:
IANAL: I am not a lawyer.
TINLA: This is not legal advice.
YANMC: You are not my client.

October 05, 2005
Court Says Bloggers Have Rights Too!

I haven't been able to find a case cite, but this NYTimes story lays out the details. It is good to see that a court has recognized that blogs are important tools that allow us to express our First Amendment rights. Read on to get a quick summary:

The Delaware Supreme Court ruled Wednesday that if an elected official claims he has been defamed by an anonymous blogger, he cannot use a lawsuit to unmask the writer unless he has substantial evidence to prove his claim.

That standard, the court said, "will more appropriately protect against the chilling effect on anonymous First Amendment Internet speech that can arise when plaintiffs bring trivial defamation lawsuits primarily to harass or unmask their critics."

Once I get a hand on the case, I'll offer some more detailed analysis.

Update: The opinion in John Doe No. 1 v. Cahill et al, (local pdf) is now available from the Delaware Courts page. (pdf).

September 29, 2005
Friendster's sneak attack on your anonymity

I've just sent the following mass e-mail to all my Friendster friends, and their reaction has convinced me that this is an issue of universal significance.

I just discovered that Friendster has a creepy new feature that not only allows you to see HOW MANY people have viewed your profile, but WHO those people are. This freaks me out. The good thing is, you can turn it off (i.e. make it so other people can't see that you've looked at their profile). Go to "my settings" in the upper right hand corner, and there's a setting below that says "view profiles anonymously."

They've clearly been collecting this data for a while, because it shows me a lonnnnng list of people that have viewed my profile (and furthermore, my preliminary tests indicate that changing your privacy settings do not retroactively remove you from anyone's "Who's Viewed Me" list). In addition to being a creepy feature to begin with, I think it's really crappy for Friendster to add this feature w/o posting a big notification about it. if you want to complain (like I do) send an e-mail to suggestions@friendster.com.

You can find this feature by clicking on "Who's Viewed Me" on the left hand side of your Friendster home screen, under your photo. I was so shocked and angry, I sent the following e-mail to Friendster:

I have several comments about the new ability to see who has viewed your profile on Friendster.

  • In the future, when adding a feature that significantly changes a
    fundamental character of the system (browsing profiles freely and
    anonymously), I would appreciate PROMINENT notification!
  • Furthermore, you should be able to give people a chance to opt out from
    the beginning of this feature (although it is possible to set my account for
    anonymous browsing, the "who has viewed my profile" list extends far
    backwards from today, which was the first day I noticed this feature).
  • Finally, especially when adding a feature with no warning, the DEFAULT
    setting should be the one that provides the most privacy and control to the
    users (i.e. allowing people to turn ON this feature, not requiring them to
    turn it off).

I looked at Friendster's Privacy Policy to try to pinpoint a violation, but their policy is predictably vague. It doesn't seem to say anything about limits on information shared between users.

For some people, this may be a wake up call--"holy crap, all these people have been inspecting my profile!?!" All of us would do well to remember that Friendster is ultimately a huge repository of extremely detailed personal information, available to anyone who knows your last name, where you live, where you grew up, or where you went to school. For me, this change is ultimately an issue of embarrasment--I don't necessarily want all my friends from elementary school to know I like to spend my spare time looking up anybody whose last name I can remember.

But the important point is: Friendster suddenly and without notice changed a fundamental assumed feature of the community--that you could look at anybody's profile you wanted to, while remaining anonymous yourself. Before this change, people who did not want random people to look at their profiles could change their settings accordingly. To apply this new feature retroactively and without notice really feels like a serious invasion of privacy. I don't like it. Do you?

August 10, 2005
Rosen Seeks Comments on OSL v. 3

Lawrence Rosen, author of Open Source Licensing: Software Freedom and Intellectual Property Law, and author of the Open Software License (OSL), has announced on the OSI's license-discuss list a draft of version 3 of the OSL (pdf). Rosen explains that many of the changes are in response to the Report on Open Source Licensing of Software Developed by The European Commission. In addition to seeking comments on the proposed changes Rosen mentions the interest others have had in creating variants of the OSL, which Rosen forbids without explicit permission. He is apparently in talks regarding assigning his copyright in the license text to "a respected non-profit organization" and placing responsibility for license stewardship with the unnamed non-profit. (I don't have any inside information, but one would guess that an organization such as the OSDL would be a natural choice.)

While the OSL is used by less than 1% of the projects at SourceForge.net using an OSI-approved license, as a license written by an attorney with extensive expertise in open source licensing, it attracts the attention of corporations considering releasing code under an open source license and obviously, it attracted the attention of the European Commission. So, if you too have some expertise or interest in open source software licensing, consider taking Rosen up on his request for comments. A new and improved OSL will only continue to attract the attention of software licensors.

June 27, 2005
It's Not Active Inducement, Stupid

No one paying attention to Grokster expected the Court to give an unequivocal thumbs up to Sony's substantial non-infringing use test. The question was whether Sony would be supplemented, altered, or discarded. Which, if any, of those possibilities will actually come to fruition is still anybody's guess. Sony's applicability appears to have been definitively limited to refuting imputed intent, but Grokster offers little by way of substantive clarification of the standard.

But one thing is clear. Despite the Court's misleading pronouncements and the flurry of hurried blog punditry, Grokster does not provide for an active inducement test. Instead, the court announced an intent-based test, one that holds developers liable not only for specific actions that encourage end users to infringe copyrights, but also for the "object" of their endeavor.

A quick perusal of the facts the Court determined relevant to Grokster and Streamcast's liability demonstrates that active inducement in the 271(b) sense is not all that underlies Grokster's potential liability. Active inducement looks to behavior that encourages users to infringe. Most of the actions taken by appellees consist of communications never delivered to users. Internal emails, communications with potential advertisers, and proposed advertisements do not inducement make. Moreover, the caselaw is clear that designs that fail to guard against infringement don't constitute inducement. Nor does the fact that a company's business model depends on a high volume of served ads have any bearing on the actual inducement of infringement by users. Although other evidence considered by the Court is of arguably greater relevance to inducement, we are left with a test better characterized as "intent to induce infringement."

So why such a test? Given the procedural posture of this case, which came to the Court on a partial summary judgment motion limited to the current version of the appellees' software, the Court needed a way to introduce past behavior. The actions in question under a pure active inducement standard appear beyond the scope of the question presented to this court. The court was limited to considerations of the distribution of the current software programs and only by looking to the intent with which that software was distributed could the Court include past actions otherwise not properly before it.

While many would have welcomed a true active inducement standard as the best realistic outcome, we're left with an intent based standard that offers no guidance to potential innovators. But on the bright side, we managed to dodge the primary use bullet.

June 05, 2005
Warner Music Says First Sale Applies to Downloads

The DRM restrictions and click-though agreements ubiquitous in the legitimate music download market may lead us to believe that we license rather than purchase our iTunes/Rhapsody/Napster content. Thankfully the folks at Warner Music have stepped in to clarify that misconception.

According to Reuters, in response to a lawsuit filed by bourbon-soaked-lounge-singer-turned-junkyard-percussion-artist Tom Waits, Warner emphatically contends that downloads are purchases not licenses. Waits claims that under the terms of two 1970s publishing contracts, which call for royalties of either 25% or 50% from revenues derived from third-party licenses, Warner has short changed him, paying out a mere 9% royalty rate for downloads - the same rate he receives for sales of physical copies. In its reply to the District Court for the Central District of California, Warner claims downloads "are sold to customers such as iTunes and Listen.com just as physical product is sold to...Best Buy and Virgin."

If that's true why can't we sell our downloads on eBay? Once again the music industry is talking out of both sides of its collective mouth. But this time it may be forced to choose who it wants to screw more - artists or consumers. Tough call.

May 17, 2005
Patry on the Anti-Bootlegging Statute

William Patry, one of the drafters of 17 U.S.C. 1101 and 18 U.S.C. 2319A, the civil and criminal provisions, respectively, of the "anti-bootlegging" statute, has a post on his blog defending the constitutionality of these statutes, both of which have recently been ruled unconstitutional, one by a district court in California (Kiss Catalog v. Passport Productions) and the other by a district court in New York (US v. Martignon).

Patry points out that the live musical performers granted rights under these statutes are engaged in commerce. No one doubts that musical artists are engaged in commerce, often even interstate commerce. But so is virtually every other copyright holder and we haven't taken that as a reason to ignore the Progress Clause's limitations or as a reason to let the Commerce Clause swallow the Progress Clause's field of application.

He also accuses Judge Baer, author of the Martignon opinion, of contradicting himself. I'd be pleased if Patry could clear up another contradiction: 2319A adopts the (C) Act's definition of "fixed" and the (C) Act defines works as "fixed" "when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." So this means that to be "fixed" you have to be "authorized". Nonetheless 2319A speaks of "unauthorized fixations" which translates to "unauthorized authorized embodiments", i.e., it explicitly contradicts itself. What's going on there?

Patry writes, "The reach of the Copyright Clause stops at the fixation door: it doesn't expressly or impliedly swing open to things that aren't fixed." That is where we simply disagree. Patry doesn't address the arguments to the contrary.

With respect to live musical performances, the Law Professors' Brief in the Martignon appeal provides three options: 1) They are writings and hence are governed by the Progress Clause. (One famous treatise author holds this view.) 2) They are not writings and hence are not governed by the Progress Clause. (This is the position taken by the Government in the Martignon appeal and also apparently Patry's view. The Profs. point out that one who takes this position must respond to the First Amendment concerns that such a sweeping regulation of speech poses. Patry doesn't do this.) 3) The Professors instead suggest that they are not Writings, and hence cannot be given copyright or copyright-like protection, but they are nonetheless governed by the Progress Clause and its limitations because that Clause governs all legislation that would regulate original creative expression.

The last seems to me the best view. It may well imply that much legislation, such as the anti-bootlegging statute, is unconstitutional. It may also mean that much more state regulation of original creative expression is preempted than we currently recognize. I don't think those are problems with the view. Rather, I think they are some of the better features of the view. Not because I care about bootleggers, but because it will provide for a more balanced "intellectual property" landscape, one where the limitations of the Progress Clause will keep us in check and prevent us from being tempted to over-expand perpetual rights that don't actually benefit society.

As an aside, Mr. Patry spends some time discussing the drafters' intent to legislate under the Commerce Clause. I'd be pleased for him to actually cite to the legislative history that demonstrates this intent. So far no one has actually provided a citation, and all the comments on the floor of Congress suggest instead that members, at least, believed they were enacting Copyright legislation. (However, we should keep in mind, as Patry also notes, that this is irrelevant to the statute's constitutionality).

Update May 19:The Conversation Continues...

Cross-posted to Share Alike.

May 11, 2005
The Ultimate Irony

for bIPlog talk, that is. Hilary Rosen notes that her iPod restricts her music playing with DRM, in Steve Jobs, Let my music go. Don't say we didn't warn you, Hilary.

May 10, 2005
A Clause By Any Other Name...

"Congress shall have the power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Several names have been used for the clause that is Article I, Section 8, Clause 8 of the U.S. Constitution. It's been called the Intellectual Property Clause, the Copyright and Patent Clause (or just one of those), and the Progress Clause. I believe that only the last of these is factually accurate and that it is also the only name with connotations that match the clause's primary purpose and function.

"The Intellectual Property Clause" is probably the most inaccurate of all the names. "Intellectual Property" is a catch-all phrase under which falls Copyright, Patent, Trademark, Trade Secret, and even some state law rights, such as the Right of Publicity. Several of these do not find their source in Article I Sec. 8 Cl. 8. Notably, Trademark law is enacted pursuant to Congress's Commerce Clause authority. Trade secret law is state law, not enacted under any Constitutional authority. Similarly for other state laws such as the Right of Publicity. So, calling this one clause "THE" IP clause ignores a good bit of "IP".

Calling it just the "Copyright Clause" ignores Patents and calling it just the "Patent Clause" ignores Copyrights. For the same reasons neither is truly accurate.

It is no solution to call it the "Copyright and Patent Clause" either. For even a copyright and patent minimalist like myself should admit that the Clause never uses either word! We have interpreted the Clause to provide authority for Copyrights and Patents, but this doesn't mean that the same clause might not provide support for other "exclusive rights" that could be secured for "authors and inventors". In particular, Prof. Pam Samuelson has argued that computer software should receive a sui generis form of protection that would be neither a copyright nor a patent. Such an exclusive right would nonetheless find its basis in Article I Sec. 8 Cl. 8. Other "exclusive rights" could too and would be left out of the "Copyright and Patent" monicker.

"The Progress Clause" on the other hand is factually accurate. The Clause is the only Article 8 power to have a stated purpose. "Congress shall have the power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." If that purpose were not important, the Clause could have simply begun "to secure..." But it doesn't.

One could also accurately call it the "Promotion Clause" or the "Securing Clause" but those names necessarily suggest the questions: Promotion of what? Securing of what? The name "Progress Clause" doesn't leave one guessing. One could also accurately call it the "Exclusive Rights" Clause, but this is where connotation matters. It's clear from the history surrounding the adoption of the Clause and from its own language that the point is not merely to grant exclusive rights for the sake of granting rights. These limited monopolies are not simply some sort of reward. On the contrary, their purpose and the only appropriate Congressional purpose for granting monopolies, is the promotion of Progress. To keep this central focus of the clause present in one's mind, it makes sense to call the clause by that name, the only factually accurate name that's been seriously proposed.

April 21, 2005
A Little Local Color

The below-linked video is a great find from BoingBoing. Apparently, a student in a UC Berkeley biology class stole the professor's laptop (in order to gain access to the exam, allegedly... quite a clever method). In addition to scaring the crap out of the entire class (and now, the entire blogosphere), there are a few fun tidbits that I thought the bIPlog readers would appreciate.

The professor says that the guilty student is in deep, deep trouble because he is "presently, uh, we think, probably still in posession of three different kinds of data" that could send him to federal prison (which is "not a good place for a young boy to be"). These kinds of data are listed below, along with the various entities which really, probably are going to come after this "young boy" at any minute:

(1) The FBI will get him for the "data" from a $100,000,000 trial "sponsored by" the NIH and "one of the largest companies on the planet"
(2) The FTC AND the Federal Marshalls will be on his track for trade secrets from a Fortune 1000 biotech company, "the largest one in the country"
(3) The SEC will hunt him down for proprietary data from a pre-public company planning an IPO

It's actually also quite fascinating to note the way the professor claims to be able to track the guy... "through wireless access points on campus. Can AirBears really track me this way? Also he may have had some help from "the people in Redmond, Washington" who are very interested to know why 2 computers are running the same version of Windows (the professor went home and installed his copy of Windows on another computer, although, wouldn't that presumably label him as the pirate?).

Although it stinks that a professor can't even trust his own students with his laptop, maybe we should all think twice about keeping sensitive data on our portable devices. After all, UC Berkeley has already learned its lesson about storing important data on laptops. As laptops get more powerful, more people are starting to use them for their regular computers, storing all their data on them. My cohort Brian Carver points out the real lesson we should be learning:

...the value of encrypted filesystems and password-protected files generally. Although, ultimately anyone with physical access and a little know-how can circumvent those too, unless one encrypts every sensitive file with a strong PGP key and keeps the secret key off that computer, on a CD-Rom or USB key, for instance. Few people are consistently that careful because the tools to make working like that practical for the non-guru don't really exist yet.

Original BoingBoing post here.
Link to mp3 of the most interesting bit here.

April 18, 2005
Blog Hoax Goes Mainstream

Tonight's episode of CSI: Miami ("Killer Date") must have been filmed before the "toothing is a hoax" story broke. The show's plot featured toothing, the now possibly-debunked cultural and sexual phenomenon toothing, wherein persons used Bluetooth-enabled cell phones to engage in random sexual encounters.

On the show, a CSI's badge went missing, and he had to explain to his co-workers and internal affairs that he was unable call the girl he was with the previous night (who might know something about the missing badge) because he met her through "toothing." "Toothing?" another CSI responded (I'm paraphrasing here), "you mean random anonymous sex?"

He knew her only by her screenname--"up4anything"--through which they try to track her using some ridiculous mis-representation of the real technology. Using a soldering iron and several small screwdrivers, and accompanied by some exciting techno-rock, a nerd in a lab coat attached a "2.4 gigahertz antenna" to his phone, "increasing the range to one mile" and he engaged in some wardriving (or, er, toothdriving?) around the streets of Miami to find the girl again.

Amazingly, the show concluded without resorting to reference to the other obvious tidbit of current events involving mobile phones... although it did end with the toothing-CSI entering a shrink's office... I guess all that engaging in a fictitious activity finally got to him?

April 07, 2005
Grokster/Betamax Showdown in Boalt 105

Today at Boalt in Room 105, students were treated to a civilized fight between Boalt's own Prof. Peter Menell and the EFF's Fred von Lohmann. The topic was the Grokster case (or whatever you call it, as Scalia said :) ) and I'll let you guess who took what side. It was a spirited debate, with smart points on both sides, but I think Fred made the most important point when he themed out the following refrain:

Innovate First, Regulate Later.

This policy refrain was accepted by all, including Prof. Menell, as ultimately the better rule (as opposed to "Ask Permission First, Innovate Later"). I found Fred's rule compelling, but not necessarily original. Computer scientists have a similar maxim: "Premature Optimization is the root of all evil." When you are coding a solution to a problem, you should pick the most straightforward and simple solution. Then if the algorithm runs into special case problems, you can optimize the code as needed. The point is that your code shouldn't do anything you don't need to do - handle exceptions as they arise. So, in the case of Grokster, you shouldn't kill P2P with a broad Supreme Court holding, but rather fix any exceptions P2P is causing through narrow legislation. Not surprisingly, the EFF has offered a compelling solution to this exception.

April 04, 2005
Google Maps Needs a Wiki

Google has added a satellite imagery feature to their map service. Now we know why Google bought that satellite imagery company last year.

Anyway, I was just checking it out, looking up the house I grew up in and the house I currently live in. In both cases, the little "pin" on the satellite image was about 2 houses off when I zoomed in all the way, and I thought it was something to do with the images not quite being placed correctly. But I switched back to the map view, and it turns out that the satellite image is actually laid over the street map quite accurately, but that the map just doesn't "know" exactly where each street address is.

So I got to thinking... wouldn't it be cool if Google Maps operated like a Wiki?? When you looked up an address, there could be a little link inviting you to "Adjust/Correct This Mapped Location." This could work with the straight map, but would be especially be especially easy with the satellite images--I can identify exactly which roof is my parents' (and can even identify that the satellite image was taken a while ago, before our neighbors cut down the big tree in their front yard). This GooWiki might even be smart enough to take into account several similar user corrections in close proximity, and adjust all locations in that area accordingly.

One drawback, though, is that it wouldn't quite have the same balance or control mechanisms as, say, Wikipedia, because while Wikipedia relies on a large readership to correct errors and rogue dirty-word-insertions, there is a very limited number of people that know that my parents' house is the one at the bottom of the cul-de-sac on the right hand side.

March 28, 2005
Spammers Make Creative Use of Dictionaries

Has anybody else noticed this recent trend in spam? I have been getting tons of spam recently where the "From" name is some ridiculous combination of English words. Never before have I derived this much enjoyment from browsing through my Junk folder looking for e-mails I actually want.

The following are examples of some of the most ridiculous names:

Hump P. Recombining
Jersey A. Judgmental
Oxygenates F. Refocussing
Affidavits V. Exclusivity
Telepathically H. Acoustics
Junctions B. Permafrost
Coolest O. Taciturnity
Pralines V. Marinate
Blameworthy I. Insoluble
Dreary D. Scream
Pirouette F. Waterproofing
Social F. Frighteningly

Here are some that (accidentally?) seem quite appropriate to the obnoxious unsolicited material contained within:

Exasperate H. Unasked
Seller T. Scandalously
Subdued K. Industriousness
Monopolization C. Mistreated

The words do not seem to have any relationship to the content of the particular messages. Anyone have an idea why spammers are doing this? I assume it is part of the neverending quest to not be recognized as spam by spam filters, but mine still catches them every time.

I wish someone would think up something funny like this to do with these crazy names.

March 16, 2005
March 29th

As we progress towards the oral argument in the Grokster case, I'm sure more articles like this nytimes one will pop up. This article is mainly topical, but it highlights the growing stress cloud on every technologist's brain. With Sony in the background we can code away and create whatever general purpose technology our imagination allows us to. If the Supreme Court modifies Sony, every line of code will be harder to write since we'll have to think of its ramifications and potential liability.

Here is to hoping that the Supreme Court realizes that the **AA's immediate problems pale in comparison to the severe long-term harm a gray-line Sony modification would cause.

March 14, 2005
Let the Sun Shine on DRM

Oh irony, how delicious you are:

+ Sunday, March 13 marked the beginning of the first Sunshine Week, an undertaking of the American Society of Newspaper Editors dedicated to "[o]pening a dialogue about the public's right of access to government information."

+ BoingBoing reports that the Government Printing Office will begin employing DRM on certain government records. See a paper by three librarians from UC San Diego's Social Sciences and Humanities Library for more info. The GPO describes their plan as a "new model for no-fee public access," which is (somewhat cynically) doublespeak for "a way to make sure the public doesn't get too much information for free."

Consider the dialogue opened...

March 10, 2005
Solove on Database Privacy: Kafka v. Orwell

Earlier this week, boalt.org hosted Daniel J. Solove, law professor at George Washington University, who talked about his fantastic new book The Digital Person: Technology and Privacy in the Information Age. His talk and his book come at an opportune time--on the heels of problems with ChoicePoint and other commercial databrokers. The book is a must-read!

Prof. Solove's book identifyies the "other you"--the digital you--that lives through your personal information inside of countless commercial databases, databases maintained by companies that you may not have heard of, but that certainly have heard of you. Why should you be concerned about this digital person? The information in these databases is used all the time to make decisions about you--it is used to determine your credit rating, how you might vote, whether you can get a credit card, whether you can get a job, what advertising should be sent to you, and even whether a retailer or business wants to do business with you. Wouldn't you like to have a say in this? ...If not to completely control what information is included, or how that information is used, but at least to make sure the information is correct? Sorry. No dice.

In The Digital Person, Prof. Solove argues that any hope of remedying this situation must begin with an overhaul of the way in which we conceptualize the problem. Outmoded metaphors used to describe the nature of privacy and privacy violations can, according to Solove, inhibit effective laws which intended to remedy the particularized problems presented by the proliferation of commercial databases of personal information. Such metaphors mischaracterize both the activities of the bad actors and the nature of the harms they cause.

Commonly invoked, of course, is Orwell's image from 1984: "Big Brother"--a central authoritarian power that aims to control, oppress, and dominate the people through constant conspicuous surveillance. The harms envisioned here are inhibition and self-censorship due to the surveillance. Solove argues that this metaphor is inaccurate because in today's world, the digital person is constructed by businesses who want to collect information as inconspicuously as possible, for the ultimate purpose of getting you to buy more stuff. Solove presents an alternate source of metaphor, more appropriate to this situation--Kafka's The Trial. Josehp K.'s struggle with an invisible bureaucracy replicates the helplessness, vulnerability, and frustration that many experience when they discover false information in a commercial data broker's file, or worse, are rejected from a job or for reasons unknown to them.

Go read The Digital Person! The book includes a comprehensive description of the developments in commercial collection of personal information, a history of privacy regulations, more analysis of the 1984 and The Trial metaphors, and proposed legal solutions! You can also watch video of Prof. Solove's talk, linked from boalt.org's speakers page under 2005, Daniel J. Solove.

March 03, 2005
Un-Spinning the ChoicePoint Scandal

Many of the popular news media have got the most recent ChoicePoint scandal all wrong.

The following are a few headlines (culled from Google News) of stories regarding this issue, including the other similar past incidents now surfacing:
Hackers crack ChoicePoint (The Glove and Mail/AP, Feb. 16, 2005, reg. req'd)
Californians warned that hackers may have stolen their data (USA Today/AP, Feb. 16, 2005)
Report: SoCal thieves stole ChoicePoint records years ago (SignOnSanDiego.com/AP, Mar. 2, 2005)

The persons, admittedly criminals, who gained access to "critical personal data" on hundreds of thousands of U.S. citizens did not steal the data--ChoicePoint sold it to them.

The inaccuracies and inconsistencies in these stories go far beyond the headlines. For instance, the above cited AP article states that "hackers penetrated the company's computer network" and that "several hackers broke into its computer database and purloined data." However, the article continues to describe that the so-called hackers used stolen identites to establish businesses and create about 50 "accounts" with ChoicePoint. This line of explanation stops there, leaving out the next event in the chain, in which ChoicePoint granted these accountholders access to intimate and valuable personal information on hundreds, thousands, millions of U.S. citizens. Some articles, however, get the details mostly right. MSNBC, for example, broke the story as "Database giant gives access to fake firms."

Now, I do not mean to say that what these persons did was right, or legal. First, the use of the personal data to defraud or steal from individuals is certainly illegal, and second, their actions in gaining the data might be criminal under theories of theft by fraud or false pretenses (see, e.g., Cal. Penal Code § 487 (" Every person who shall... fraudulently appropriate property which has been entrusted to him or her... is guilty of theft."). But there was certainly no case of of "hacking" as we normally understand this activity--no skilled computer users breaking through technological security measures to gain access to information they have no "right" to see. In this case, ChoicePoint voluntarily granted access to these accountholders. The real "wrongdoing" here is very complex--it is entwined with ChoicePoint's business practices, practices about which the public remains primarily unaware.

To be fair, ChoicePoint itself is technically honest about the nature of the incident--in an online statement (that I only found through Googling, not through any intuitive or easily discovered link on ChoicePoint's website), ChoicePoint points out that "[t]his incident was not a breach of ChoicePoint's network or a 'hacking' incident, and did not involve any of ChoicePoint's customer information." By customer information, it means information about ChoicePoint accountholders, businesses who purchase consumer information from ChoicePoint. Despite this technical honesty, ChoicePoint has done nothing to widely publicize this popular misconception, and is overall pretty "squishy" about addressing this incident, and more broadly, about discussing how they do business.

So what went wrong here, putting aside the use the criminals made of the information gained from ChoicePoint? The criminals did not hack into ChoicePoint databases, nor did they, by common definition, "steal" any information. The main problem was arguably on ChoicePoint's end--the criminals successfully circumvented ChoicePoint's "tests" for legitimacy of purpose.

To understand what really happened here, you have to know a little bit about ChoicePoint's normal course of business. According to the Electronic Privacy Information Center's ChoicePoint page, the following is a partial list of the information that ChoicePoint sells to businesses (among other entities):

claims history data, motor vehicle records, police records, credit information and modeling services...employment background screenings and drug testing administration services, public record searches, vital record services, credential verification, due diligence information, Uniform Commercial Code searches and filings, DNA identification services, authentication services and people and shareholder locator information searches...print fulfillment, teleservices, database and campaign management services...

Some of this information contains such sensitive information as Social Security Numbers and Drivers License Numbers. According to an interview with ChoicePoint CEO Derek Smith from a Georgia NBC television news affiliate, when a business comes to ChoicePoint requesting to purchase such data, ChoicePoint subjects this business, as a requirement for opening an account, to a "credentialing" process, one he claims is among the most rigorous in the market. Smith characterizes this process as one that is aimed at determining whether the company is a "legitimate business" with a "permissible purpose" in accessing U.S. consumer information. This credentialing process can involve such activites as making sure the business is properly licensed in the state in which it is located, checking to see if the business receives and pays utility bills for business facilities, and sometimes a site inspection, activities which let ChoicePoint know if the entity has a "real likelihood of being a business capable of accessing the information."

This interview with Smith, linked from ChoicePoint's website and clearly intended to inform consumers about the issues and alleviate concerns, leaves many questions unanswered, and Smith is less than thorough in his responses to many of the interviewer's questions. For example, when asked how a company like ChoicePoint could let something like this happen, Smith defends their rigorous credentialing standards, and chalks the fiasco up to the "sophistication of organized crime to infiltrate all American businesses." Although little information has been released about the perpetrators in this case, a similar scam has been revealed to have taken place in 2002--are the "Nigerian-born brother and sister" convicted as a result of that incident the sophisticated members of organized crime Smith refers to?

In fact, Smith has boldly claimed that "ChoicePoint's core competency is verifying and authenticating individuals and their credentials." Yet it appears, from statements he makes later in the interview, that these individuals were able to pass muster by presenting California business licenses alone. Smith gives no indication that of any of the additional safeguards he described earlier were employed.

Smith also stresses the fact that "we were the ones that identified the fact that there appeared to be fraudulent activity taking place, and we notified the California authorities to the fact that we thought something in fact was awry." He does not mention that ChoicePoint was required by law to notify California residents if certain pieces of their personal information are "leaked" or disclosed improperly. It was only after this required disclosure that ChoicePoint voluntarily notified the hundreds of thousands of consumers in other states that their information had been compromised as well.

More importantly, it is VERY unclear what qualifies as a "permissible purpose." When asked, Smith states that permissible uses of information are outlined in regulatory guidelines, without identifying these regulations or what uses they deem permissible. Later in the interview, when asked what he believed to be legitimate uses of the personal data they sell, he gives only one primary concrete example--doing background checks on applicants for employment or volunteer positions, to determine that they are "who they say they are," and that they don't have any criminal record. He also refers vaguely to several cases of ChoicePoint assisting in the tracking of missing or kidnapped children, without giving details about how personal information was used to accomplish this task. Smith makes no mention whatsoever of the activites that make up the great majority of ChoicePoint's business: selling data to direct marketers and law enforcement agencies. Unlike the examples given by Smith, these activities have little to do with the lofty and emotionally resonant purposes of protecting consumers' personal safety.

While the compromising of so many thousands of persons' personal data is truly a tragedy, many hope that this incident will raise awareness of the serious privacy problems presented by the actions of modern commercial data brokers. But the spin put on these issues by ChoicePoint, and picked up by the popular media, is standing in the way of a deep public awareness of the problem. Unspinning these reports is the first step to a solution! As a next step, consider the following--ChoicePoint considers direct marketing and law enforcement investigations to be legitimate uses of your aggregated personal data. Do you agree?

For more information on the various dangers presented by ChoicePoint and similar commercial data brokers, see EPIC's ChoicePoint Page.

March 02, 2005
On understanding "End to End"

One of the most succinct briefs submitted by amici to respondents in the MGM v. Grokster case was authored by a team of CS professors. The crazy thing is that an earlier post of mine pretty much summarizes their argument. Which isn't to say I'm special in any way - the ideas present in both pieces are basic knowledge to all computer scientists. The main point is that the Internet, and every type of communication the Internet allows, is content neutral. When organizations say they have a problem with file sharing, they should blame this content agnostic nature of the Internet, not file sharing companies. Unfortunately, though they either aren't keen enough or willing to pick up on this, they are trying to lock down new digital platforms so they can avoid 'problems' in the future.

October 27, 2004
The Sweet Smell of the Public Domain

Image of Pull My Finger Fred[Note: I could not make this up if I tried. Everything that follows is absolutely true.]

Those with and without a good sense of what copyright law actually protects sue a lot of other people to humorous results. None more so than this case that occurred in the Northern District of Illinois before Judge Gettleman, JCW Investments, Inc. v. Novelty, Inc. 289 F.Supp.2d 1023. Since you'd never believe it if I just paraphrased, I'll extensively quote a filing from the case. This brief

responds to Plaintiff's motion for a preliminary injunction to prevent Defendant from selling plush toys known as "Fartman" and "Fartboy" (hereafter referred to collectively as "Fartman"). Plaintiff alleges that "Fartman" infringes a copyright on protectable expression embodied in a plush toy known as "Pull My Finger Fred." Plaintiff further alleges irreparable harm with no adequate remedy at law. Defendant denies Plaintiff's allegations: "Fartman" shares no protectable expression with "Pull My Finger Fred"; Plaintiff has failed to show irreparable harm; and Plaintiff has adequate remedy at law.
Oh but there's more. The facts:
Plaintiff manufactures and/or sells, among other items, plush toys known as: "Pull My Finger Fat Bastard"; "Pull My Finger Freddy Baby"; "Pull My Finger Fart Boy"; and "The Classic Dad, Pull My Finger Fred". See Exhibit 1. Defendant previously imported and sold plush toys known as "Fartman" and "Fartboy". See Exhibit 2. Without first corresponding with Defendant, Plaintiff sued Defendant claiming "Fartman" and "Fartboy" infringe a copyright on "Pull My Finger Fred." Plaintiff concurrently filed an emergency motion seeking a preliminary injunction against Defendant "for violation of the Copyright Laws of the United States." Plaintiff's motion relies exclusively on its copyright infringement cause of action.
"Copyright infringement of a plush toy?! How could that be?!" Read on:
"Pull My Finger Fred" expresses the idea of a lounging plush toy "classic dad" or "uncle" that vibrates with a fart and generates scatological cliches when his finger is pulled. See Exhibit 1 ("The Classic Dad, Pull My Finger Fred"), and Exhibit 3 ("You know our Uncle Fred."). "Fartman" is a different expression of this idea. Moreover, Fartman is a parodical superhero... Fartman and Fred both generate scatological cliches when someone pulls their fingers, i.e., they fart quakingly and make hackneyed comments about their farts. They share the most stereotypical of clothing: blue jeans and white T-shirts.
"Aha! They both have blue jeans and a white T-shirts! Those dirty infringers!" But wait... The brief goes on to enumerate forty-three characteristics of each plush toy to highlight the many differences. Among the more interesting are:
  1. Fartman's shirt has "FARTMAN" emblazoned across his chest in red lettering. Fred's shirt is blank.
  2. Fartman's chair is brown vinyl; Fred's chair is green fabric, and is shaped differently than Fartman's.
  3. Fartman is wearing a red and yellow "F" hat; Fred wears no hat.
  4. Fartman and Fred are both smiling (as part of the scenes a faire of a pull-my-finger joke).
  5. Fartman makes the statements: "you smelt it you dealt it!"; "call 911 we have a gas leak!"; "rip-it-y-do-dah!"; "oh, I bet that one left tracks!"; and "na-na-na-Fartman!"; Fred makes none of these statements.
  6. Both Fartman and Fred make the statements "Did somebody step on a duck?" and "Silent, but deadly."
  7. Fartboy has a disproportionately large plastic finger that must be pulled approximately six inches on a string to activate its "pull-my-finger" joke; Fred has an electric switch in his plush finger that need only be grasped to activate Fred's "pull-my-finger" joke.
Note again, the above are verbatim from the brief. I've merely renumbered them. For those unfamiliar with one phrase used above, "Scenes a faire" refers to "incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic." Alexander v. Haley, 460 F. Supp. 40, 45 (S.D.N.Y., 1978). The comparison of the characteristics of the two toys leads the defendants to argue,
Fartman differs distinctly in artistic expression from Pull My Finger Fred in 38 of the 43 comparisons listed above in the statement of facts. Of the five comparisons above where Fartman and Fred are not completely different, two are inextricably intertwined with the underlying idea, and are thus unprotectable scenes a faire (i.e., Fartman and Fred are both smiling, and both have the voice of a man). One is unprotectable because it is part of the idea itself (i.e., both Fartman and Fred are made at least partially from fabric, since they are plush toys). One regards statements that both Fartman and Fred make (i.e., "Did somebody step on a duck?" and "Silent, but deadly."). These statements are unprotectable cliche's [sic]. Finally, both Fartman and Fred are Caucasian. Obviously, no copyright protection is associated with expressing Fred as a particular race. Finally, even if there is some slight similarity in some aspect of expression, it is not "substantial". Copyright infringement requires substantial similarity of expression.
Probably the best yet least developed argument the defendants made was this:
Granting a preliminary injunction in this case would unjustly tip the balance of rights Congress has allocated between authors under Article I, Section 8, clause 8 of the Constitution, because it would grant patent-like rights to Plaintiff's copyright by ordering the idea of Pull My Finger Fred be pulled from the public domain.
Well, it turned out that the court was not persuaded by these (and other) arguments and summary judgment was eventually awarded to the plaintiffs. Read the opinion here (pdf). Almost a year after that decision, Fred and his friends rule the Farting Doll world, as the online FartMart only sells from that line. Buy yours there as you think about the ways that copyright law is (mis)used to extend monopolies into areas never imagined by our Constitution.

October 14, 2004
Greenpeace Uses Patent Challenge as Latest Way to Save the Planet

...or at least to save the planet from wrongful intellectual property monopolies on its plants. Greenpeace recently emerged victorious in its opposition to a patent on the Indian Nap Hal wheat variety filed in the European Patent Office. The entity claiming inventorship of the wheat in question, esteemed for its superior baking qualities, was none other than Monsanto, arguably the Microsoft of the plant world for its propensity to file patents sun-up to sun-down. The problem in this case, the EPO concluded, was that Monsanto didn't invent the Nap Hal wheat at all. Rather, it was farmers in India who came up with the strain by breeding. Much as Monsanto might salivate at the prospect of collecting royalties from Indian farmers, you don't have to be concerned about sustainable agriculture in the developing world to agree the patent system was not designed to allow multinational corporations to reap what others have sowed.

The success of the Greenpeace challenge is but one example that the patent opposition procedure is alive and serving its intended purpose in the EPO. Not so much at our own PTO, but there are signs of life. As announced here at Boalt last spring, the Federal Trade Commission recently recommended an expanded opposition process in its proposal for patent reform. Not waiting for it to get easier, the Electronic Frontier Foundation has launched its own Patent Busting Project to challenge patents that betray the system's purpose and tread on the public domain. (EFF invites law students, patent attorneys, and prior art searchers to lend a hand to the Project.) Meanwhile, kudos to Greenpeace for keeping Nap Hal wheat free to use by the farmers who got down in the dirt to develop it.

October 05, 2004
Mind Your First-Level Domains

I was just watching the 10pm replay of the Vice Presidential debate while simultaneously browsing the Internet and reading stories about Cheney's and Edwards' comments... so of course, when I heard Cheney, in response to allegations of inappropriate ties between Halliburton and the Bush administration, direct viewers to "factcheck.com, an independent web site," my fingers couldn't type fast enough. And where does this URL point?

See for yourself: http://factcheck.com

As of now, the link points to GeorgeSoros.com, which is running a big banner headline which reads "Why We Must Not Re-Elect President Bush." Imagine my surprise!

Presumably, Cheney intended to direct viewers to FactCheck.org, a "nonpartisan, nonprofit, 'consumer advocate' for voters that aims to reduce the level of deception and confusion in U.S. politics" run by the Annenberg Public Policy Center of the University of Pennsylvania. Oops.

A few questions are tickling my mind... how many people are there out there like me who actually look up a URL mentioned on TV, either instantaneously by walking to the computer, or later by writing down the URL? What are the political affiliations of these people likely to be? And was this just a colossal turn of bad luck and uber-slip-of-the-tongue for Cheney, or were George Soros' people quick enough on the ball to hear that URL when it was broadcast at the regular hour this evening and snap up the domain name? If it was the latter, could this be a case of "cybersquatting"? Neither Google's Cache nor Internet Archive's Wayback Machine have any record of previous sites at this address. Talking Points Memo reports that during the debate, factcheck.com was a dead URL, so it does seem that someone worked quickly to push a redirect through...

October 04, 2004
Mount Saint Helens VolcanoCam Images: Terms of Use

Thumbnail of image from Mount St. Helens VolcanoCam 2004-10-04 at 11:29:01 PDTThe US Forest Service operates a Mt. St. Helens VolcanoCam.

Their terms of use regarding the images are probably well-intentioned, but are an interesting example of a misunderstanding of both copyright law and the internet. The terms:

1. They give me permission to link to their page. (Woohoo!)
2. They give me permission to use the images, but ask[?] that I credit them, link back, and contact them if I do use them.
3. They don't give me permission to make derivative works, unless only the size of the image is changed and the aspect ratio kept intact. And if I do that, they ask[?] for a link back.
4. I cannot use frames on my website to capture their website.
5. I cannot require registration on MY site as a precondition to seeing the volcano images or links that I provide.
6. I cannot make any commercial use of the images, and if I use the images on my website, that page cannot even contain non-commercial advertising!
7. I am encouraged to make my web pages standards-compliant and Section 508 accessible.

Now, one would guess that these images are created by Forest Service employees, i.e., U.S. government employees, during the course of their employment, and so I believe all these images are in the public domain. A federal statute (17 USC Section 105) states that:

"Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise."
When combined with the "work for hire" doctrine (17 USC Section 201(b))
"In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright."
we would appear to be in a situation where government employees are creating images in the course of their employment and the copyright in those images would belong to the employer, namely the Federal Government. But since the Federal Government cannot acquire copyrights in that manner, the images would be in the public domain. (This could certainly be argued about, but it is a long-standing principle going back to Wheaton v. Peters, 33 U.S. 591 (1834) where the U.S. Supreme Court held that the written opinions of Federal judges were in the public domain because of reasoning analogous to that just explained.) This is not an accident either. These products of our government being in the public domain is a good thing. As taxpayers, we've usually already paid for them once, so there's no reason for the government to wrest additional licensing fees from us to use what we've already paid for!

I will consider the possibility that someone else who could hold the copyright is producing the images in a moment.

But first, if the images are in the public domain, and given that I refuse to enter into any contract with the Forest Service regarding the use of the volcano images, I think the only item above that they can actually enforce is the bizarre #4. I'm not sure what the legal theory would be, but it seems like (it could be) some sort of misrepresentation for me to capture their site within a frame on my own website. But actually, even then, if the outer frame had enough clear disclaimers, (and again depending on the legal theory) then they might not even be able to prevent that.

Finally, in at least the case of this post, even if someone other than government employees produces the images, and they do hold a valid copyright in them, my use of the thumbnail above is a fair use. The Ninth Circuit (in which both I and the volcano reside) held in Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) that thumbnail images were a transformative fair use, especially in circumstances like these, where my use is non-commercial and my purpose is educational.

Poking around their website a little more (is that link allowed?!), I see that the Northwest Interpretive Association, a non-profit, donated the money for the VolcanoCam, while the VolcanoCam's webserver was a Government surplus Win 2000 box. It does look like the VolcanoCam and its webserver are operated by the Forest Service's employees, presumably during working hours, and it also sounds like the U.S. Geological Survey (that's a .gov site) studies the images. That is, it sounds like the images are produced 1) by government employees 2) while on government time 3) on a government-purchased webserver 4) for use on a government website and 5) for use, in part, by government researchers or to promote the park to tourists, which is also a government purpose. Only the camera itself was purchased with non-government funds. The factors in a work-for-hire case can be complex, but on balance I think I'd stand by the analysis above.

But in this litigious world, I would urge you that I am not a lawyer (yet) and I am certainly not your lawyer, and so the above is not legal advice. If you've got big plans for some VolcanoCam images, it sounds like the folks at the U.S. Forest Service have some questions for you. And while you're at it, consider donating some money to that non-profit (pdf), so they can keep the VolcanoCam going and add more features and locations. Indicate on your donation that you want VolcanoCam images to be freely available to the public. Money talks!

September 16, 2004
Call for Entries: Sampling Contest from Three Notes and Runnin'

The first remix is already up at Three Notes and Runnin'.

What's the contest? Make something good by sampling the music and they'll post it to their site. Here are the details:

    In the case, the court found that NWA violated copyright law when they sampled 3 notes of a guitar riff from Funkadelic's "Get off Your Ass and Jam" for their song "100 Miles and Runnin'". The ruling reversed a district court finding that because "no reasonable juror, even one familiar with the works of George Clinton, would recognize the source of the sample without having been told of its source", sampling clearance should not be required.
    Hear a sample of the NWA song, "100 Miles and Runnin'", which contains the sample. (hint: the sample comes in after the line "when in a black and white the capacity is two", and is looped for 16 bars).
    In doing so, the court broke from decades of established sample practice by ruling that all samples, regardless of how heavily manipulated or unrecognizable they may be, are subject either to "clearance" (obtaining permission for use of the sample, usually in exchange for money), or litigation. In an instant, this act made the majority of sample based music illegal. For more, read Why Sample Rights Matter.
    To protest this decision, we are creating a forum for sample-based musicians and artists to share their own 30 second songs which have been created using only the sample in question. By doing so, we hope to showcase the potential and diversity of sample based music and sound art, and to call into question the relationship between a sample and its use. All entries will be posted on this site as they are received.
    Rules for Submission

      1. Your song must be thirty seconds in length.

      2. Your song must use only the designated two seconds of the intro to Funkadelic's "Get off Your Ass and Jam" as source material. You can slice it, layer it, loop it, stretch it, filter it, smack it up, flip it, and rub it down, but you can't bring any other sounds into the mix.

      3. All Entries should be encoded as mp3s and emailed, along with artist name, email or URL, and a brief description / statement to mike@burncopy.com. All entries that adhere to the format of the call will be posted to the website.

    Participants are encouraged to process the sound in creative, unconventional and excessive manners, stretching the relationship between the finished result and the source material.

Courtesy of Jason Schultz.

September 13, 2004
Software Patents Considered Harmful

This blog entry combines various sources to come to the titled conclusion. It all starts in New York City some months ago at a talk I went to at the Yale Club by the Dean of the Engineering College at Dartmouth. He presented a very interesting vision of our world in 50 years. In general it was an aggressive vision (we will be melded with machines a la The Matrix), but the main point I remember is his belief that we are on an exponential curve of innovation. This innovation is driven by technologies such as computing and nanobiology. Which brings me to a recent Wired article that mentions that others too share a vision of accelerating change. Given my technical background, I tend to agree - our lives will become increasingly improved via technology, so much so that our grandchildren will probably consider us as unfortunate as we do those who had to use a outhouse.

Unfortunately, this rate of accelerating innovation isn't guaranteed to continue. There are many roadblocks, but the most significant are software patents. The software patent system is already troubling for various reasons, very ably explained by the father of GNU/Linux, Richard Stallman. He does not go far enough though. Software patents may become so onerous that software developers will cease to be productive, as they will be unable to clear the regulatory hurdles that patenting software creates. Progress (aka the rate of accelerating innovation) may stall. In the end, the powers that be will hopefully realize that software patents hinder more than help, but until then technological innovation is in peril.

(For all the programmers out there, I would be remiss to not attribute inspiration for the title of this article to the great Dijkstra.)