Category Archives: Intellectual Property

Get your Mac clone now and beat the big cease-and-desist rush

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John Murrell, writing in Good Morning Silicon Valley

An outfit called Psystar finds itself in the spotlight today after advertising what it claims is a Leopard compatible Mac built from standard PC-parts for $399, but it probably feels less like a stage star than an escaping convict in the prison yard. See, the license for the Mac operating system bans its installation on non-Apple hardware. Apple, as we know, does not take kindly to trespassers on its turf, and in instances like this, here’s what I like to think happens: A loud bell goes off in the sleeping quarters of Apple Legal, and a squad of attorneys, already dressed in their three-piece suits, jump out of their cots, slip on their tassel loafers, slide down a pole, pile into a fleet of Priuses and roar off (or hum off, I guess) to the scene of the conflagration. So if you have your heart set on an ugly box that might work sort of like an Apple, at least until you try to update it, jump now.

The smoke of battle

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Andrew Orlowski has a vintage rant in the Register…

I’ve been to some strange events … in my time reporting for El Reg. But yesterday at the London School of Economics I saw one of the most disturbing of all. If you thought people don’t behave in real life like they do online, think again. Here were all the most unpleasant aspects of online behaviour – ignorance, rudeness, groupthink, and a general sneering moral superiority – but made flesh. By the end, it had degenerated into farce. So what was it all about?

It was a symposium on “Music, fans and online copyright”, hosted by LSE and the Oxford Internet Institute.

Music and copyright are subjects that everyone has a stake in. But the speakers had been hand-picked by a fanatical anti-copyright Jacobin, Ian Brown. Brown drew from a narrow, ideologically homogenous group of friends. That didn’t make for an enlightening debate, but it made for a good lynching party – and the afternoon would culminate in a ritual lynching, with Mr John Kennedy of IFPI lined up for the noose…

Orlowski then goes on to to do a spot of literary garotting all by himself.

Bill Bragg on ‘the Royalty Scam’

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Songwriter Bill Bragg was struck by the news that Bebo co-founder Michael Birch has walked away with $600 million after the site was bought by AOL. Bragg has some ideas about what Birch should do with the money:

I heard the news with a particular piquancy, as Mr. Birch has cited me as an influence in Bebo’s attitude toward artists. He got in touch two years ago after I took MySpace to task over its proprietary rights clause. I was concerned that the site was harvesting residual rights from original songs posted there by unsigned musicians. As a result of my complaints, MySpace changed its terms and conditions to state clearly that all rights to material appearing on the site remain with the originator.

A few weeks later, Mr. Birch came to see me at my home. He was hoping to expand his business by hosting music and wanted my advice on how to construct an artist-centered environment where musicians could post original songs without fear of losing control over their work. Following our talks, Mr. Birch told the press that he wanted Bebo to be a site that worked for artists and held their interests first and foremost.

In our discussions, we largely ignored the elephant in the room: the issue of whether he ought to consider paying some kind of royalties to the artists. After all, wasn’t he using their music to draw members — and advertising — to his business? Social-networking sites like Bebo argue that they have no money to distribute — their value is their membership. Well, last week Michael Birch realized the value of his membership. I’m sure he’ll be rewarding those technicians and accountants who helped him achieve this success. Perhaps he should also consider the contribution of his artists.

The musicians who posted their work on Bebo.com are no different from investors in a start-up enterprise. Their investment is the content provided for free while the site has no liquid assets. Now that the business has reaped huge benefits, surely they deserve a dividend…

Ignorance is bliss

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Yep. See this report from the Register…

The Economist has failed in its attempt to gain control of the internet address theeconomist.com.

The address was not transferred to it because the owner claimed that he had never heard of the magazine when he registered the name.

The site simply carries a picture of Alan Greenspan, the former chairman of the US Federal Reserve, and a note calling him “the economist of the century”.

The Economist took a case under the World Intellectual Property Organisation (WIPO)’s dispute resolution service. Under WIPO rules a domain name can only be transferred if the name is identical or confusingly similar to a trade or service mark owned by the body trying to gain control of the address; if the person holding the address has no rights in it, and if the address was registered and used in bad faith.

Anyone hoping to gain control of a domain must prove all three of these elements in order to be handed the address. The Economist failed to show that the address owner Jason Rose registered the domain name in bad faith.

Rose claimed that he had never heard of The Economist in 1996. The Economist disputed this, claiming it would be almost impossible for someone interested in current affairs and economics not to know the magazine, but WIPO panelist Sir Ian Barker, a QC, said that he had to be believed.

Barker said that the claim was hard to believe, but that the WIPO system was not designed for ruling on such questions of fact.

Federal Court decides that cease-and-desist letters are protected by copyright

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Interesting decision.

Glen Allen, VA (PRWEB) January 24, 2008 — The US District Court for the District of Idaho has found that copyright law protects a lawyer demand letter posted online by the recipient … The copyright decision… is the first known court decision in the US to address the issue directly. The Final Judgment calls into serious question the practice of posting lawyer cease and desist letters online, a common tactic used and touted by First Amendment groups to attack legal efforts at resolving everything from defamation to intellectual property disputes.

In September 2007, Dozier Internet Law, a law firm specializing exclusively in representing business interests on the web, was targeted online by “free speech” and “public participation” interests for asserting copyright ownership rights in a confidential cease and desist letter sent to a “scam reporting site”. The issue generated online buzz in the US with commentators such as Google’s lead copyright counsel and Ralph Nader’s Public Citizen attacking the practice as unlawful, and Dozier Internet Law responding. Bloggers from around the world soon joined the debate, reeling at the thought of losing a valuable counter-attack tool.

The Court, in its decision, found that a copyright had been adequately established in a lawyer’s cease and desist letter. The unauthorized publication of the letter, therefore, can expose the publisher to liability. Statutory damages under the US Copyright Act can be as much as $150,000 per occurrence plus attorneys’ fees that can average $750,000 through trial. The publisher of the letter raised First Amendment and “fair use” arguments without success.

Wilful cluelessness

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Wonderful Wired interview with Doug Morris, Universal’s CEO.

Morris was as myopic as anyone. Today, when he complains about how digital music created a completely new way of doing business, he actually sounds angry. “This business had been the same for 25 years,” he says. “The hardest thing was to get something that somebody wanted to buy — to make a product that anybody liked.”

And that’s what Morris, and everyone else, continued to focus on. “The record labels had an opportunity to create a digital ecosystem and infrastructure to sell music online, but they kept looking at the small picture instead of the big one,” Cohen says. “They wouldn’t let go of CDs.” It was a serious blunder, considering that MP3s clearly had the potential to break the major labels’ lock on distribution channels. Instead of figuring out a way to exploit the new medium, they alternated between ignoring it and launching lawsuits against the free file-sharing networks that cropped up to fill the void.

Morris insists there wasn’t a thing he or anyone else could have done differently. “There’s no one in the record company that’s a technologist,” Morris explains. “That’s a misconception writers make all the time, that the record industry missed this. They didn’t. They just didn’t know what to do. It’s like if you were suddenly asked to operate on your dog to remove his kidney. What would you do?”

Personally, I would hire a vet. But to Morris, even that wasn’t an option. “We didn’t know who to hire,” he says, becoming more agitated. “I wouldn’t be able to recognize a good technology person — anyone with a good bullshit story would have gotten past me.” Morris’ almost willful cluelessness is telling. “He wasn’t prepared for a business that was going to be so totally disrupted by technology,” says a longtime industry insider who has worked with Morris. “He just doesn’t have that kind of mind.”

The piece provides a fascinating insight into the mindset that has nearly destroyed the industry. Ed Felten has some acerbic comments on it.

Morris’s explanation isn’t just pathetic, it’s also wrong. The problem wasn’t that the company had no digital strategy. They had a strategy, and they had technologists on the payroll who were supposed to implement it. But their strategy was a bad one, combining impractical copy-protection schemes with locked-down subscription services that would appeal to few if any customers.

The most interesting side of the story is that Universal’s strategy is improving now — they’re selling unencumbered MP3s, for example — even though the same proud technophobe is still in charge.

Why the change?

The best explanation, I think, is a fear that Apple would use its iPod/iTunes technologies to grab control of digital music distribution. If Universal couldn’t quite understand the digital transition, it could at least recognize a threat to its distribution channel. So it responded by competing — that is, trying to give customers what they wanted.

Still, if I were a Universal shareholder I wouldn’t let Morris off the hook. What kind of manager, in an industry facing historic disruption, is uninterested in learning about the source of that disruption? A CEO can’t be an expert on everything. But can’t the guy learn just a little bit about technology?

iNews

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This morning’s Observer column…

The saga of the Apple iPhone continues. Last Thursday, AT&T’s chief executive, Randall Stephenson, was asked at an industry gathering about the prospects for a future iPhone with a faster net connection. ‘You’ll have it next year,’ quoth he. Those ‘familiar with the matter’ (as US newspapers quaintly put it) are amazed that Mr Stephenson still lives and breathes – or at any rate was doing so when this column went to press. For there are two things that Steve Jobs, Apple’s mercurial – not to say explosive – CEO, cannot abide. The first is anyone other than himself making product announcements. The second is announcing forthcoming upgrades while there’s plenty of old stock to be shifted over Christmas. After all, who in their right mind would buy a steam-powered iPhone now when they can have a 3G one in a few months? Answers, please, on the back of a death warrant, to Steve Jobs, 1 Infinite Loop, Cupertino, CA 95014, USA.

Is eBay guilty of “contributory infringement”?

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From a New York Times report…

In a weeklong bench trial in Federal District Court in Manhattan that ended last Tuesday, lawyers for Tiffany & Company argued that the online auction house was far more than that: it is a distribution network that enables the trading of counterfeit Tiffany items.

If Tiffany wins its case, not only could other lawsuits follow, but eBay’s business model could be threatened because it would be difficult and extremely expensive for the company, based in San Jose, Calif., to police a site that now has 248 million registered users worldwide and approximately 102 million items for sale at any one time.

Tiffany has requested injunctive relief that would require eBay to alter its procedures to eliminate counterfeit silver Tiffany merchandise from its auctions. Judge Richard Sullivan instructed both sides to file post-trial briefs by Dec. 7.

“I will hopefully turn this around quite quickly after that,” he told the lawyers.

Hani Durzy, an eBay spokesman, said eBay was not responsible for determining whether each product sold on the site was fake.

“As a marketplace, we never take possession of any of the goods sold on the site, so it would be impossible for us to solely determine the authenticity of an item,” Mr. Durzy said. “And we go above and beyond what the law requires us to do to keep counterfeits off the site.”

But in his closing argument last Tuesday, James B. Swire, the lawyer for Tiffany, told Judge Sullivan that eBay directly advertised the sale of Tiffany jewelry on its home page, and “because eBay profits from the sales generated by these and other actions,” Tiffany considers its actions direct copyright infringement.

Mr. Swire added that “there’s certainly much in the record to show that eBay is liable for contributory infringement.”

Neat work, AP

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Associated Press have done a really neat piece of detective work to investigate rumours of dirty tricks by Comcast, a US ISP.

NEW YORK (AP) – To test claims by users that Comcast Corp. was blocking some forms of file-sharing traffic, The Associated Press went to the Bible.

An AP reporter attempted to download, using file-sharing program BitTorrent, a copy of the King James Bible from two computers in the Philadelphia and San Francisco areas, both of which were connected to the Internet through Comcast cable modems.

We picked the Bible for the test because it’s not protected by copyright and the file is a convenient size.

In two out of three tries, the transfer was blocked. In the third, the transfer started only after a 10-minute delay. When we tried to upload files that were in demand by a wider number of BitTorrent users, those connections were also blocked.

Not all Comcast-connected computers appear to be affected, however. In a test with a third Comcast-connected computer in the Boston area, we were unable to test with the Bible, apparently due to an unrelated error. When we attempted to upload a more widely disseminated file, there was no evidence of blocking.

The Bible test was conducted with three other Internet connections. One was provided by Time Warner Inc.’s Time Warner Cable, and the other came from Cablevision Systems Corp. The third was the business-class connection to the AP’s headquarters, provided by AT&T Inc. and Cogent Communications Group Inc.

No signs of interference with file-sharing were detected in those tests.

Further analysis of the transfer attempt from the Comcast-connected computer in the San Francisco area revealed that the failure was due to ”reset” packets that the two computers received, carrying the return address of the other computer.

Those packets tell the receiving computer to stop communicating with the sender. However, the traffic analyzer software running on each computer showed that neither computer actually sent the packets. That means they originated somewhere in between, with faked return addresses…

It seems that Comcast uses Sandvine traffic-shaping hardware to limit the effectiveness of BitTorrent seeding. The goal is to manage BitTorrent traffic without tipping off mainstream users that it’s being done. This source cites Robb Topolski’s explanation of how it’s achieved:

“The Sandvine application reads packets that are traversing the network boundary. If the application senses that outbound P2P traffic is higher than a threshold determined by Comcast, Sandvine begins to interrupt P2P protocol sequences that would initiate a new transfer from within the Comcast network to a peer outside of the Comcast network. The interruption is accomplished by sending a perfectly forged TCP packet (correct peer, port, and sequence numbering) with the RST (reset) flag set. This packet is obeyed by the network stack or operating system which drops the connection.”

I love the idea of using the Bible as the test file. Reminds me of Larry Lessig’s report of coming into his office in Stanford one morning to find the network police waiting for him, grimly announcing that it had been discovered that he had P2P software installed on his computer. Larry explained that he used P2P as a way of distributing his own publications — intellectual property that he owned. The idea that there might be legitimate uses for P2P had clearly never occurred to the management.

And that’s in Stanford!

Later: Ed Felten has also commented on Comcast’s traffic shaping practices.