Author: Deven Desai

6

Copyright as Protecting a Business Model

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Apparently a cell phone company is suing to have the U.S. Copyright Office reverse a ruling that allowed people who buy cell phones to disable the software lock on the phone so that the phone could be used with other carriers. The company is called Tracfone. Many have noted that the DMCA goes well beyond classic copyright protection. I think that in some ways one could argue that as opposed to the government providing a system of incentives with all the attendant issues of intangible and nonrivalrous goods, this case shows that industries are using copyright law to protect business models not expressive works. At least one other person has said as much. The software at issue is a lock. Disabling it simply means one can use the item at issue as one wants. It seems that this sort of use (or abuse according to some) is simply a way to hinder competition and allow otherwise weak business models to survive. Whether one could argue that the changing landscape means that the classic form of the music industry is also a dying business model because of the drop in creation and even to some extent marketing prices, I leave for others to argue. Nonetheless, one could imagine a system that puts more money directly into artists’ hands and where rather than megastars we have a proliferation of more ministars who can actually earn a living as artists and indeed give up their day job. Yet it seems that copyright may have better arguments when capital is the question. If I recall correctly, Benkler (the Wealth of Networks) and Fisher (Promises to Keep), are two people who have delved into these questions and are worth reading. Even if a media industry is capital intensive and we give it copyright laws to protect it, that does not mean we are not subsidizing it, it may just mean that we have made a choice. If so, the question may be when should we subsidize an industry if at all?

In any event Tracfone’s complaint is here. Counts five and six cover the circumvention issues. The reply of the Wireless Alliance (with an assist by Stanford’s Cyberlaw Clinic) is here. It seems to be a part of what lead to the exemption that Tracfone is now opposing.

1

More on Santa, Beer, and Giving In General

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So I was about to post about Santa’s Butt Winter Porter but students interrupted and Heidi beat me to it. I too would love to know what people think about her questions so thanks Heidi for framing them. (By the way the Shelton Brothers had a similar fight over the label to the right in Connecticut and the state dropped its opposition).

Moving on, in the spirit of Christmas two recent articles seem worth mentioning. First it appears that a man in Kansas City is a true Secret Santa. He has given out more than $1.3 million. The man started from practically nothing and lived in his car for awhile. He made millions on telecommunications but began his giving in 1979 before he made his fortune and in fact right after he was fired from a job. Recently he found out that he has cancer that has spread and receives expensive treatment to fight it. His response to this turn of events has been to train others to carry on his tradition. The Web site is here.

In a mildly similar vein, The Timesonline reports that the producers of the film The Constant Gardner have established a charitable trust of 100,000 pounds to help the remote regions where the film was shot. The trust is not shutting down anytime soon and apparently “consult[s] elders about the practical needs of their communities” as it decides on infrastructure. In addition the producers of the King of Scotland, a film about Idi Amin, the former ruler of Uganda, are considering establishing a trust in Uganda.

0

Semi-Secret: How U.S Intelligence Agencies Share Information

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The New York Times Magazine has an article called “Open Source Spying” that is worth a read. In short, the intelligence community has started to use blogs and wikis to enhance their work. The article sums up, “The premise of spy-blogging is that a million connected amateurs will always be smarter than a few experts collected in an elite star chamber.” One person involved with the project noted something that has drawn my interest of late: the nature of secret information may have changed. He observes that previously the intelligence game revolved around high cost acquisition of information and retaining it in secret on the premise that the more secret and secure it was, the more future valuable information one would acquire “But that’s now appropriate for a small and shrinking percentage of information.” Enter blogs and wikis and what might be called the world of semi-secrets.

The article details the way in which some members of the intelligence community used public blogs to get the fastest information on the Orange Revolution in the Ukraine as an example of the power of the Internet as an information tool. But that point is probably not so surprising. The most interesting part of the article details the way in which the intelligence community apparently uses private wikis and blogs to cure information gaps. The previous system that kept walls between agencies and that was blamed for a lack of understanding regarding the 9/11 attacks was only part of the problem. Even within an agency, reports or ideas could die on a desk because of hierarchy. To address these problems the intelligence world is using some link methodology a la Google and launching Intellipedia, “a wiki that any intelligence employee with classified clearance could read and contribute to,” and given birth to what I am calling the world of semi-secrets. In other words even in a partially closed system, the advantages of open information flow are being embraced such that what might have been a closely held secret is more valuable as a shared or semi-secret. Here’s one compelling tidbit on how the intelligence community has seen success with a more open approach to information:

Intellipedia proved itself just a couple of months ago, when a small two-seater plane crashed into a Manhattan building. An analyst created a page within 20 minutes, and over the next two hours it was edited 80 times by employees of nine different spy agencies, as news trickled out. Together, they rapidly concluded the crash was not a terrorist act. “In the intelligence community, there are so many ‘Stay off the grass’ signs,” Rasmussen [a knowledge engineer at the National Geospatial-Intelligence Agency who contributes to the project daily] said. “But here, you’re free to do what you want, and it works.”

The article notes that wikis are prone to error but this one does not allow anonymous posting so credibility is on the line as a potential control. But wait. Don’t order yet. A blog is running as well.

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1

Stored Text Messages Ruled Not Subject to Wiretap Act

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One of my favorite shows, The Wire, is about to start on HBO, and in a life/art convergence moment, Declan McCullagh has just written about a drug case where according to the opinion the government seized “97 kilograms of cocaine, 3 kilograms of crack cocaine, and in excess of $800,000” in part by using taps and gaining access to text messages. As part of their defense, the defendants claimed that the government’s use of stored text messages and a GPS device to track a car were improper. U.S. District Judge Huvelle ruled that the government access to stored text messages is not subject to the Wiretap Act. The opinion makes the distinction between the Wiretap Act and the Stored Communications Act. The opinion also addresses the use of a GPS device to track the car and found that one does not have an expectation of privacy when on public roads but does have an expectation of privacy at home thus data related to using the device while the subject was at home was suppressed.

In short, Judge Huvelle noted that “An ‘intercept’ is defined in the Wiretap Act as ‘the aural or other acquisition of the contents of any wire, electronic, or oral communication though the use of any electronic, mechanical or other device.’” She then explained “Courts consistently have held that the Wiretap Act governs only the acquisition of the contents of electronic communications that occur contemporaneous with their transmission, and not — as is the case here — the subsequent acquisition of such communications while they are held in electronic storage by third parties.” Next Judge Huvelle pointed out that when considering stored electronic communications the Stored Communications Act controls and that the Act “the procedures the government must follow to access the contents of stored electronic communications ‘are considerably less burdensome and less restrictive than those required to obtain a wiretap order under the Wiretap Act.’”

So for those of you who think that text messages or emails are lost to the ether, they aren’t. According to the Stored Communications Act if the provider stores the information for 180 days or less, the government may gain access to it with a warrant.

As for the tracking device, in the case at hand it appears that the government obtained a warrant to use it, the warrant expired, and the government continued to use the device. It seems that Judge Huvelle’s point about privacy on public roads as opposed to in one’s home is that the government never needed a warrant in the first place when tracking someone in public so the expired warrant did not matter. CNET has previously noted that the Washington Supreme Court has ruled that using a GPS device should require a warrant because “use of GPS tracking devices is a particularly intrusive method of surveillance, making it possible to acquire an enormous amount of personal information about the citizen under circumstances where the individual is unaware that every single vehicle trip taken and the duration of every single stop may be recorded by the government.” But the article also quoted Concurring Opinions own Dan Solove as explaining that if the U.S. Supreme Court rules on the use of GPS devices it is unlikely to agree with the Washington ruling.

2

This Is My Domain, Well Everyone’s Really: Google and Full Text Public Domain Books

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I remember watching Tarzan as a kid and hearing the declaration “The jungle…this is my domain…and I protect those who come here. For I am Tarzan, lord of the jungle” at the beginning of every episode. Well Google has taken up the public domain cry and in effect has said “This is public domain and we share it with all. For we are Google, lord of information.” Google’s latest cool offering is in Google books. As Google puts it “Starting today, you can go to Google Book Search and download full copies of out-of-copyright books to read at your own pace. You’re free to choose from a diverse collection of public domain titles — from well-known classics to obscure gems.”

The CNET article about the service notes that Google seems to be taking a somewhat conservative approach to the definition of what is in the public domain including screening access based on different country’s laws. Indeed Google cautions users to “please confirm the legality of your actions. The rules of public domain differ from country to country, and we can’t offer guidance on whether any specific use is allowed. Please don’t assume that a book’s appearance in Google Book Search means it can be used in any manner anywhere in the world.”

My guess is that the disclaimer is a way to combat some publisher who argues Google is liable for contributory infringement. And to me the country access restriction is an interesting way to try and honor differing countries copyright laws without only using the most restrictive definitions, but I wonder whether Google will use that same technology to honor reduced access to this information for political demands. This point was at issue with China already.

Finally some of you may want to check out Paul Heald’s (Georgia) abstract and summary for his empirical study of public domain and copyrighted best sellers. The study examines the hypothesis that copyright extension is necessary to ensure that copyright holders would “restore older works and further disseminate them to the public.” I heard Paul present the piece at the IPSC conference a few weeks ago and his use of the data to reach his conclusion about whether works are under-exploited is worth a look. I won’t tell you the conclusion because that would be a spoiler.

0

Easterbrook To Be Elevated to Chief Judge

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Just a quick heads up. According to the National Law Journal Chief Judge Joel M. Flaum turns 70 soon and when that happens Judge Frank H. Easterbrook will be elevated to Chief Judge of the 7th U.S. Circuit Court of Appeals. The article notes that the position is mainly administrative and that to accommodate his new duties, Judge Easterbrook will reduce his teaching load to one course rather than two a year.

For those interested the article lists some criticisms of the judge and some praise. In addition the article notes that Judge Easterbrook may “ask district judges of the circuit to occasionally sit on a 7th Circuit panel, giving them a view from the appellate court” which apparently is “a change from a ban on visiting judges set by Posner when he was chief from 1993 to 2000.”

3

Score that as E 26.1303 or How to Prevent the Study of Evolutionary Biology

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The New York Times reports that “Evolutionary biology has vanished from the list of acceptable fields of study for recipients of a federal education grant for low-income college students.”

The Department of Education has claimed the omission is an error. You be the judge. The list is apparently a standard list that normally includes evolutionary biology, “the scientific study of the genetic, developmental, functional, and morphological patterns and processes, and theoretical principles; and the emergence and mutation of organisms over time” as 26.1303.

As Barmak Nassirian, associate executive director of the American Association of Collegiate Registrars and Admissions Officers, noted students must use the code system to declare their majors and the claimed omission error “is ‘odd,’ … because applying the subject codes ‘is a fairly mechanical task. It is not supposed to be the subject of any kind of deliberation.’”

Furthermore as the article notes when one looks at the list there is a clear gap between 26.1302 and 26.1304. You can see the list here. Go to page 7 of the pdf to see the gap in question.

With the number removed, students in the National Smart (Science and Mathematics Access to Retain Talent) Grant program would not be able to receive the $4,000 grants available through the program if they declared evolutionary biology as their major. That means that while the country may want to develop the talent of “third- or fourth-year, low-income students majoring in physical, life or computer sciences; mathematics; technology; engineering; or foreign languages deemed “critical” to national security” evolutionary biology may not be up to snuff.

My guess is we will never know whether the omission was a lame attempt to sneak one by the public or whether someone thought it was a funny thing to remove but failed to revert to the correct version for publication. Still as one person quoted in the article put it: “Removing that one major is not going to make the nation stupid, but if this really was removed, specifically removed, then I see it as part of a pattern to put ideology over knowledge. And, especially in the Department of Education, that should be abhorred.”

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Form of Internet Access Task Force: FTC Group to Examine Net Neutrality

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According to ComputerWorld the FTC has created an Internet Access Task Force to examine whether broadband providers are behaving anti-competitively. Chairwoman Deborah Platt Majoras has framed the issue this way:

I have to say, thus far, proponents of Net neutrality regulation have not come to us to explain where the market is failing or what anticompetitive conduct we should challenge.

First, the quote seems like an invitation for those who support net neutrality to approach the FTC with their arguments. Second, it seems that the question might be put differently so that it asks what anti-competitive behavior we face without net neutrality legislation. The problem may be that proving the undesired behavior now is not possible because it has yet to occur. (Those who have examples speak up and let the FTC know). Even for those who see the NN problem as huge (here’s a link Larry Lessig and Robert W. McChesney’s piece on the topic), the arguments seem quite general and assert that not maintaining net neutrality would lead to X, Y, or Z result but don’t provide the evidence that Majoras appears to want.

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Fantasy Sports: Fun or Gambling?

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The New York Law Journal reports that a man is using New Jersey’s qui tam laws to sue “ESPN cable network, CBS and The Sporting News [on the grounds that they] are getting away with illegal gambling by hosting pay-to-play fantasy leagues, complete with big cash prizes and wide-screen TVs.” The distinction at issue is whether fantasy sports are games of chance or skill. According to the article fantasy sports are “a $1.5 billion industry with more than 15 million players.”

As I understand it, distinguishing between games of chance and skill is difficult in part because states vary in how they approach the question. Nonetheless Reed Smith Hall Dickler (a firm that specializes in marketing and sweepstakes law) offers these guidelines on what is an illegal lottery “a game or contest in which the outcome is determined by chance, the entry requires some form of consideration, and the winner is awarded a prize.” In the fantasy case the consideration seems clear enough and prizes are awarded according the complaint. The chance issue is a little harder to define. The article notes that some consider the endless analysis of the statistics (now allowed thanks to C.B.C. Distribution and Marketing v. Major League Baseball Advanced Media) skill.

The Fantasy Sports Trade Association’s representative, Glen Colton, argues:

“I think that the premise that [a fantasy sport] is more chance than skill is simply wrong,” Colton said. “There are very large number of ways in which someone can skillfully and intellectually predict how a player is going to perform.”

For example, Colton said, a fantasy football player can study offensive coordinators’ techniques, evaluate who gets the ball more often — wide receivers or running backs — or study a quarterback’s performance.

All very nice but really isn’t that what people do when they study horse racing, football, baseball, etc. and bet? Plus according to Reed Smith Hall Dickler in at least one case predicting the outcome of a sporting event is an illegal lottery.

Of course in our world of let’s just change the law to make it fit this circumstance and ignore the possible inconsistencies (such as with offshore gambling prosecutions ) Mr. Colton noted “that a bill is pending in Congress that would declare fantasy sports a legal business, not gambling.”

And so in the words of Inspector Clouseau the problem may be sol-ved.