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Tuesday, June 3, 2003

Petition to Support the Public Domain Enhancement Act

reclaiming the public domain. We have launched a petition to build support for the Public Domain Enhancement Act. That act would require American copyright holders to pay $1 fifty years after a work was published. If they pay the $1, the copyright continues. If they don’t, the work passes into the public domain. Historical estimates would suggest 98% of works would pass into the public domain after 50 years. The Act would do a great deal to reclaim a public domain.

This proposal has received a great deal of support. It is now facing some important lobbyists’ opposition. We need a public way to begin to demonstrate who the lobbyists don’t speak for. This is the first step.

If you are an ally in at least this cause, please sign the petition. Please blog it, please email it, please spam it, please buy billboards about it — please do whatever you can. And most importantly, please help us explain its importance. There is a chance to do something significant here. But it will take a clearer, simpler voice than mine. [Lessig Blog]

Please take a moment to follow the link to this partition and add your support. If you are so minded, please contact your representative directly. It is time to restore balance to the laws that control intellectual property, and the public Domain Enhancement Act is a good first step.

Posted by:  Terry Frazier at 12:38 PM  | Permanent Link  | Trackback URL | 

Monday, June 2, 2003

Toting the Freight - Southern Style

When freight titans collide

Normally, oligopolies coexist in a state of Cold War. They compete, but within limits. But when one company threatens to disrupt the balance in a big way, they react.

That's what happened when package delivery services FedEx and UPS felt threatened by DHL Worldwide Express. For years, FedEx and UPS have been poaching on each other's territories. UPS has pushed its next day service, moving into FedEx's area of strength. FedEx, in turn, changed its rate structure from a single nationwide rate to a zone rate, to better compete with UPS for shorter-distance ground deliveries. But together these two have dominated the U.S. market.

But along comes DHL Worldwide. It's no Johnny-come-lately. After all it has 38% of the world delivery market. (FedEx has 21% and UPS has 13%.) But it has been expanding rapidly in the U.S. market, and the two other companies are upset.

Between them UPS and FedEx control 80% of domestic shipping. Number three currently is Airborne, and the big factor is that DHL in March announced it would acquire Airborne. That would give it a significant foothold, and that is what FedEx and UPS are desperately trying to block. [...] [Oligopoly Watch]

Posted by:  Terry Frazier at 4:55 PM  | Permanent Link  | Trackback URL | 

Public Domain Victory in Supreme Court

Dastar decided - correctly

The Supreme Court has unanimously decided the Dastar case — and correctly. The issue was whether a film producer could be held $1.5m liable for using a public domain film without giving credit to the former copyright owner. The decision is being described as a loss for 20th Century Fox. It is more accurately a gain for the public domain. [ Lessig Blog ]

Posted by:  Terry Frazier at 4:08 PM  | Permanent Link  | Trackback URL | 

Sunday, June 1, 2003

The Man Who Would Sell Us Everything

Best sound bite:

Barry Diller: "Our strategy is the [sic] be the largest and most profitable ecommerce company in the world using multiple brands."

Best question:

Audience member, to Diller: "You've been outspoken about media concentration. What's the impact going to be if control gets tighter?"

Diller: "You're referring to the FCC's June 2 rule making, and loosening restrictions on cross-ownership. The issue is not about consolidation, it's this: there are 5 entities that control 90% of what you see and hear. What we need is sensible, wise regulation that will make it so you can still hear independent voices. It's not about size, but when you have size you have to have careful oversight and regulation or you get in trouble. If these entities control the broadband types as well, they'll sit on the toll bridge. The size issue can't be met by just tossing everything out."

Read all of Denise's notes for some excellent insight into the minds of the people who will be selling our future.

D: Interview with Meg Whitman and Barry Diller.

The following are my notes from the May, 28, 2003 interview with Meg Whitman and Barry Diller, conducted by Kara Swisher at D: All Things Digital. (Again, please don't mistake these jottings for a verbatim transcript or a complete portrayal. I'm a highly selective listener and a most imperfect note-taker.) [...] [Bag and Baggage]

Posted by:  Terry Frazier at 4:03 PM  | Permanent Link  | Trackback URL | 

FBI Wannabes Harrass Naive Teenager

This story lays out the details, but essentially the teenage blogger got caught up in a hacking investigation run by a couple of local cops trying to get into the FBI High Tech Crime Task Force. Displaying the sort of careful, think-first, act-later prowess that the DoJ is so well known for, the two Dick Tracy characters took off to the high school to intimidate and interrogate the student before there was even any confirmation of an incident.

Turns out there was no hacking, no incident, no nothing:

[...] Steve Anson, the lead investigator, now says that it appears there was no hacking in the first place--just an unexplained malfunction of some sort. "I honestly think this whole thing's a non-incident, as far as a provable attack," he says. "There's really no concrete evidence of any type that there was any type of intrusion." [...]

This was just a naive teenager putting personal stuff on a blog and repeating a rumor that a system failure in the school's network was a hax0r attack. But that was all the local-yokel cops needed to go running, like Barney Fife, out into the field in a badge-waving frenzy. At least they didn't handcuff her or break out the pistols. (What a surprise.)

[...] Around school, Carter says, rumors were flying about the supposed hacking. Someone had tried to change grades. Or tried to post pornography on school Web pages. "There was definitely buzz going on about it," Carter says. She was just passing on the scuttlebutt on her blog, she told the policemen, and had no idea who, if anyone, had hacked Citrix.

But they weren't buying it, she says. "They said, 'You need to elaborate on this. Hacking into a government system is a federal offense, and the person who did it will be prosecuted to the full extent of the law, and we need to know. And if you don't tell us everything you know right now, then we're not going to be as friendly next time you talk to us.'

"They weren't very friendly at all," Carter says, and they didn't become any friendlier when she started grilling them about why they were investigating her blog. "I asked them lots of things. One of the first questions I asked them was, have you done a 'sneak and peak' in my house? And he was like, 'We can't say.' I asked him several more times, and I said, 'Do you have a warrant for the search of my house or my computer?' And he said, 'We can't say.' But finally, I got them to admit that they hadn't done anything yet, but he said that he could if they wanted to." [...]

This is the behavior we get when we start removing all restraint and responsibility from law enforcement. This is what we can expect to become more and more common with the passage of the Patriot Act, its usurpation of basic Constitutional protections, and the Jihadist mentality of many in the law enforcement community.

In short, this sort of lunacy is what happens when we replace the US Constitution with the Department of Justice as the supreme law of the land. Thanks to Anil Dash for the pointer.

Posted by:  Terry Frazier at 1:50 PM  | Permanent Link  | Trackback URL | 

DMCA - No Proof Required

Here InternetMovies.com (Plaintiff) had filed for injunctive relief from MPAA (Defendant), where MPAA had forced their ISP (FlexNet) to shut down the InternetMovies.com site.

[...] According to Defendants, they are entitled to summary judgment because they complied with the DMCA which authorized them to send FlexNet a notice requesting that it shut down Plaintiffs website. In other words, Defendants assert, acting pursuant to and in accord with the DMCA provides the justification required to defeat Plaintiff's tortious interference claims. Alternatively, Defendants argue, they are entitled to summary judgment because Plaintiff cannot prove damages. According to Plaintiff, Defendants were not justified in sending FlexNet a notice, or at the very least there is a triable issue of fact regarding justification, because Defendants failed to conduct an investigation to determine whether Plaintiff's website actually infringed on any copyrights before sending FlexNet the notice. Moreover, Plaintiff asserts, there is an issue of fact regarding damages that precludes entry of summary judgment in favor of Defendants.

The very next paragraph is particularly important, as it makes clear that the DMCA is not about guilt or innocence. It is about granting virtually unlimited power to copyright holders and lawyers.

Plaintiff does not cite, and the Court cannot find, any provision in the DMCA which requires a copyright holder to conduct an investigation to establish actual infringement prior to sending a notice to an ISP. Rather, the DMCA only requires a copyright holder to form a good faith belief of an alleged or "claimed" infringement prior to sending an ISP a notice. ~ 17 V.S.C. § SI2(c)(3)(A)(v). [...]

Whether InternetMovies.com had infringed or not is irrelevant, as this decision essentially removes the "innocent until proven guilty" aspects that have, at least until 1998, been the norm under US Law. The DMCA is a horrible piece of legislation, upending virtually every principle of fairness, equality, and due process that have marked the core of American existence for over 200 years. Its passage in 1998 presaged an attitude shift among our Congressional leaders that led them, when faced with the critical issues of September 2001, to completely abandon the fundamental rights upon which America was built.

If you find this parallel specious, think again about the slippery slope that began with the DMCA -- removal of judicial oversight, removal of burden of proof, unilateral promotion of the corporation over the individual. All of these things were started, gradually accepted, and became a perfectly reasonable way to run the government four years later. By the time Congress had to make a choice on the Patriot Act, they had not only accepted as normal the reverse logic of the DMCA, but had come to think of it as a baseline that could be extended.

So, while the DMCA had some limited safe harbor provisions, by October 2001 it no longer seemed necessary to have any such provisions for the Patriot Act. When faced with balancing liberty and freedom against the tyrannical requests of the Bush Administration, Congress meekly -- and unilaterally -- turned its back on the US Constitution and handed the US Department of Justice and John Ashcroft virtually unlimited, unchecked, unending power to surveil, detain, withhold, and intimidate legal, legitimate, free-thinking US citizens.

This is no small issue. It is no mere political debate between Republicans and Democrats. Both parties have been complicit in, and supportive of, these massive abdications of Constitutional guarantees. And both parties continue to actively support further encroachments at the state and local levels, placing the interests of the government and corporations over the rights of the individual.

Posted by:  Terry Frazier at 10:53 AM  | Permanent Link  | Trackback URL | 

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