Microsoft claims free software is infringing its patents
the FTC blasts state regulation of online real estate services, and
Google prevails over Perfect 10 in an important copyright case
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I missed this IPI essay when it came out last month. In its opening paragraphs (and its conclusion) the paper purports to be a critique of technologists’ arguments against the DMCA, with my own paper and EFF’s Unintended Consequences as exhibits A and B. There have been relatively few substantive criticisms of my paper (it got little more than a sneer from IPI’s president, for example) so I was excited about the opportunity to read a serious, essay-length critique of my arguments against the DMCA.
Outside the tech policy area, but I just had to vent . . . .
In a blog post from Found|Read titled Dangers of a Threesome – (clever) – hapless Kevin Wolf writes of bringing two equal partners into a company formed around a business idea of his. He is distraught because the two partners recently fired him. His third conclusion from this episode – third! not first – is “If the idea for the business originated with you, consider keeping a controlling voting interest in the company.”
No shit. (‘Scuse my French.)
Found|Read is part of the impressive GigaOM network of online news sources and blogs, which produces a wide array of interesting information and thinking. But I wouldn’t listen very long to a running coach, sitting on the ground with skinned knees, who advised me that I should lace my shoes.
Over at Ars, I analyze yesterday’s Perfect 10 decision:
Perfect 10 attempted to distinguish its service from the Kelly precedent in two ways. First, although Google doesn’t typically display advertising on image search result pages, some of the sites containing infringing images participate in Google’s AdSense program. Second, Perfect 10 had licensed its images for sale in thumbnail form to cell phone users, and the company argued that the thumbnails in Google’s search results undermined the market for cell-phone thumbnails. The district court sided with Perfect 10 in 2004, and Google appealed the decision.
Writing for the Ninth Circuit Court of Appeals, judge Sandra Ikuta firmly rejected both of those arguments. She noted that there was no evidence that any mobile phone users had actually used Google’s image search engine to download Perfect 10’s images. And while she acknowledged that Google did generate a small amount of revenue from infringing websites that participated in the AdSense program, she ruled that “the transformative nature of Google’s use is more significant than any incidental superseding use or the minor commercial aspects of Google’s search engine and website.”
Perfect 10 seems to have taken a “kitchen sink” approach in its attack on Google, and the as a result the decision is kind of sprawling, touching on a variety of theories for both direct and indirect liability. As far as I can see, almost all of them worked out in a pro-Google (and in my view, a pro-innovation) direction. The possible trouble spot is the Napster issue, where the Ninth Circuit sent the case back to the district court for further consideration. But as long as Google can make a plausible case that they can’t be expected to police each of the billions of websites they link to, they should be fine.
Wow. More proof that we have a long way to go before public officials really “get” the Internet. From a Reuters story:
A British judge admitted on Wednesday he was struggling to cope with basic terms like “Web site” in the trial of three men accused of inciting terrorism via the Internet. Judge Peter Openshaw broke into the questioning of a witness about a Web forum used by alleged Islamist radicals.
“The trouble is I don’t understand the language. I don’t really understand what a Web site is,” he told a London court during the trial of three men charged under anti-terrorism laws. Prosecutor Mark Ellison briefly set aside his questioning to explain the terms “Web site” and “forum.” An exchange followed in which the 59-year-old judge acknowledged: “I haven’t quite grasped the concepts.”
Good news from the Ninth Circuit, which overturned Google’s loss in last year’s Perfect 10 decision. Here’s what I said about the case back when it was decided:
Google Image Search is a search engine for images. It does not serve ads. AdSense is a third-party ad program whereby any website on the Internet can allow Google to place ads on their site in exchange for a cut of the revenues. The relationship between these programs is… well, there isn’t really a relationship, except they’re both Google products. Sometimes users find infringing pages using Google Image Search that have AdSense ads on them. The court decided this was evidence that Google Image Search was profiting off of infringement.
But that’s ridiculous. Google Image Search doesn’t give any particular preference to web sites that serve up AdSense ads. And AdSense serves up ads regardless of what search engine brought the user to the site. If Google cancelled Google Image Search altogether, there’s little reason to think AdSense would suffer financially—users would likely find the same pages using other search engines.
If this standard is to be taken seriously, search engine companies are going to have to divest themselves of all other online services that might involve infringing copyrights. Yahoo! will have to sell off GeoCities. Microsoft will have to stop selling IIS, its web server.
But Mike at Techdirt warns that the case might not be over:
However, the court ruled that because some of the sites also included Google AdSense ads, Google was directly profiting. Of course, that seems like a totally different issue, so the entire decision was something of a mixed bag, at times saying that thumbnails by themselves aren’t infringing, but there were cases where they were. The latest is that an Appeals Court has overturned the lower court ruling, saying (again) that thumbnails are fair use… but still opening up potential liability if Google could have done a better job to “prevent future damages.” That seems to leave the whole thing wide open for the lower court (which the case is being sent back to) to screw up all over again. So, despite what the headlines might read, this case is far from over.
An excellent explanation by Eben Moglen about why geeks are so outraged about Novell’s agreement with Microsoft:
Our friend Mark Blafkin objects that free software partisans have often claimed that Microsoft patents were a threat to free software when it suited them. This is true, but it’s kind of beside the point. The problem with Microsoft’s behavior isn’t what they say about their patents. The problem is the implicit threat their statements embody.
When Microsoft says “Linux infringes 245 patents and they’d better pay up,” that’s entirely different from a potential litigation target saying “Linux infringes 245 bogus patents and so we’d better change patent law to make sure we don’t get sued.” It’s kind of like the difference between a shopkeeper saying “I’m worried the Mafia breaking my store’s windows so we need increased police protection” and a Mafia don saying “that’s a nice shop you’ve got, it would be a shame if something happened to it.”
I subscribe to Stereophile magazine. Every month I take great pleasure in reading the latest product reviews, particularly those involving either of the following:
Unobtainium plated interconnects sheathed in endangered panda skin for optimum voodoo-shielding
Any devices employing any form of magnetic levitation technology
Zenph takes audio recordings and turns them back into live performances, precisely replicating what was originally recorded. The software-based process extracts and encodes the details of how each note was played. The encoding is played back on an acoustic grand piano allowing listeners to experience the performance as if they were in the room when the original recording was made. This re-performance is then recorded afresh using the latest recording techniques. This release features new recordings of that experience specifically designed for surround-sound, stereo or headphone listening.
What are the copyright implications of doing this? A few things to consider:
The Goldberg Variations are obviously in the public domain. Gould’s 1955 recording, as a derivative work, is not.
Nothing you hear on this recording is in any way sampled. No audio from the 1955 recording persists.
The original recording was essentially traced, so the exact timing and velocity of each note matches Gould’s performance perfectly.
It’s being marketed as Gould’s 1955 performance.
Please post any thoughts you might have to the comments.
The morning after North Carolina Attorney General Roy Cooper
(and others) “asked” MySpace.com to hand over the names of sex offenders on its
site, what do I do? I testify in Raleigh about a social networking bill. Talk about entering the lion’s den!
This is the latest development in what is becoming an intense battle over social networking safety. And as I saw first hand in North Carolina, state
legislators are happy to be on the record for any bill that purports to protect children, even if it means mandating age verification techniques that ultimately work against the children we’re trying to protect.
Update: a good overview of the hearing is an article in today’s Raleigh News & Observer newspaper.
I testified on SB 132, now under consideration in North Carolina that would, among other things, require social networking sites like MySpace to verify the ages of their members and facilitate parental consent and parental access to their children’s social networking pages.
At first glance these seem like reasonable proposals.
Unfortunately, they aren’t.
The American Spectator reported yesterday that House leaders have decided to “aggressively pursue” reinstatement of the Fairness Doctrine this year. In January, Rep. Dennis Kucinich raised a stir by saying he would pursue the issue, but — while always entertaining — the far-left Kucinich doesn’t always speak for his party’s leadership. The Spectator report indicates that that leadership is now behind the effort in a big way.
The report also includes some mind-bogglingly frank statements by a House staffers on the reasons for the effort. “Conservative radio is a huge threat and political advantage for Republicans and we have had to find a way to limit it,” a “senior advisor to Pelosi” is quoted as saying. A Government Reform committee staffer is then quoted as saying: “Salem [Broadcasting Co.] is a big target, but the big one is going to be Limbaugh. We know we can’t shut him up, but we want to make life a bit more difficult for him.”
The quotes are amazingly reminiscent of statements by Richard Nixon and his staff, who routinely used the Fairness Doctrine to cow opponents in the media. The surprising thing, though, isn’t the sentiment — most everyone after all knows the political dimension of this issue — but the fact that staffers would let themselves be so quoted. The statements sound (suspiciously) more lilke GOP talking points on the issue than anything a halfway experienced staffer would let himself utter.
If these quotes are accurate, however, those of us on the anti-regulation side may as well put our pens away now. We couldn’t possibly make a better case against this regulation than those staffers have.
The question then would be: will they get equal time to rebut their own arguments?
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology. Learn more about TLF →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.