June 30, 2009

Feeling Handy

To my students, I'm an intellectual-property law professor. But to my mom, I'm a handy son who helps with projects around the house.
 
I was over at my mom's house helping her hook up her new LCD panel television and TiVo HD. But there was a problem. I couldn't get the new TiVo to work through the TV's HDMI jacks. HDMI is, I understand the preferred way to connect things to achieve the best quality. Finally, I got the picture to come through. But with this message:

IMG00055-20090630-1613


HDMI Not Permitted

The TV or audio receiver is not compatible with HDCP digital rights management standards. Unplug the HDMI cable between the DVR and the TV or audio receiver.

Use the supplied component video cable instead to connect video from the DVR to the TV. You will need to connect a separate cable to the same TV input for audio. 

If you need help, see the Start Here poster or visit TiVo Customer Support.

"I'll be darned," I told my mom. "You're having an intellectual property problem."

There are so many great things about life in the new millennium. And then there is DRM.


May 31, 2009

Google Book Search and Contractual Voodoo

Books_sm2 Let's say that you have a good idea for an internet application, but it would involve infringing millions of copyrights. You'd like to negotiate a deal, but there are hundreds of thousands of people with whom you'd have to negotiate. So what do you do? 

Here's an idea: Find just one or two agents to represent all the copyright holders with whom you'd like to negotiate. These superagents do not actually get people's permission to represent them ... that would be impractical. Instead, these agents simply declare themselves to be representatives of the copyright holders. Then you and the agents hammer out and sign a contract that binds all of the copyright holders. 

There is, obviously, one big problem with this plan. It is completely preposterous. Contract law does not allow for it. It is elementary that you cannot bind someone to a deal without their consent. 

Yet Google, with their Google Book Search program, is on the verge of accomplishing just such a feat of contractual voodoo. How? Through a proposed settlement agreement of a class-action lawsuit.

If, before launching Book Search, Google had filed a declaratory-judgment action to determine whether they were on solid legal footing, Google's prospects might have been quite meager.

But Google did not do this. Instead, the folks at Google went with a much more promising brute-force approach: Google debuted their service, grew it steadily, and attracted admirers. Having taken command of the status quo, they sat back and waited to be sued. When Google was inevitably hailed into court, it finally had someone across the table with whom it could negotiate. And negotiate it has. The 141-page settlement agreement is the licensing agreement that Google could never have reached otherwise. 

Class actions are a necessity for certain kinds of disputes. And there undoubtedly needs to be a way for all disputes – class-action suits included – to be settled. But this is not a case where what's done is done and the courts must make the best of a bad situation by creating some final resolution to set the matter to rest. Google Book Search is not, for instance, a toxic spill or a cancer cluster that can't be undone. The harm can be stopped immediately. Specifically, if Google Book Search infringes copyrights, Google can pull the plug on it tomorrow. 

So as a settlement agreement, this one strikes me as somewhat fishy. 

I like Google Book Search. I see it as a social good of substantial magnitude. But that doesn't make the settlement agreement wholesome. It calls for careful scrutiny. The final fairness hearing is on October 7, 2009, and objections must be filed by September 4, 2009. I hope the court will get to hear some thoughtful criticism.

April 30, 2009

Digital History Made This Month: iTunes Music Now DRM Free


Itunes_icon This month, Apple's iTunes made the final transition to ridding itself of DRM (digital rights management) restrictions on the music files it sells. That means that the iTunes software and associated encryption algorithms are no longer trying to prevent you from taking newly purchased iTunes music to an unauthorized computer.

This is a great thing for iTunes consumers, because it means they no longer need to worry about the red tape of trying to authorize and de-authorize different computers and players just to hear the music that's already been paid for. It also means iTunes consumers are no longer tied down to iPods and iTunes software to play their music. 

But there is a significance to this that goes far beyond its impact on consumers or Apple. I would call this is a red-letter day in the history of intellectual property. Ten years ago, when Napster and illegal downloading were scarring the pants off the record business and much of the rest of the entertainment industry, it looked like to me and to many people like we were headed into an era of trusted systems – where proprietary formats and cooperating hardware would hold a Big-Brother-like grip over audiences – deciding what people could and could not do with reproductions of copyrighted works. It was in that environment that the Digital Millennium Copyright Act was passed, which made it a criminal offense to defeat DRM systems through hacking or reverse engineering. 

Apple's successful push to make iTunes music DRM-free indicates that the survival of the entertainment industry, in fact, did not hinge on DRM technology and the passage of the DMCA as Big Hollywood would have had everyone believe. It turns out, if you charge reasonable prices, people are generally willing to pay rather than go out of their way to get copies unlawfully.

A big downside of DRM for society is that it creates a technological barrier to exercising fair-use rights. So this development with iTunes is a very happy one. By shedding DRM in this instance, the free market actually provided people with a freedom that Congress was all too willing to bargain away. 

April 22, 2009

Acknowledging What Harvard Law Owes to Slaves

Harvard Law School coat of arms Isaac Royall The three sheaves of wheat on the Harvard Law School coat of arms (top), derived from the family crest of Isaac Royall (bottom), may be fairly said to represent the labor of slaves.

Harvard Law School was founded with money amassed through slavery.

This is a fact that HLS, my alma mater, does not try to hide. But it is a truth that is not exactly advertised either. If you visit the “Our History” page of the law school’s website, you get a somewhat-whitewashed version of the school’s heritage. More than a third of the 311-word synopsis of HLS history reads as follows:

The Law School traces its origins to Isaac Royall, who in 1781 left land from his estate in nearby Medford to Harvard University, with the proceeds intended to "endow of a Professor of Laws at said college, or a Professor of Physics and Anatomy." Harvard took the opportunity to fund its first chair in law, and the Royall chair continues to support an HLS professor today, more than 200 years later.

In 1806, Royall’s heirs sold the rest of his estate and used the funds to establish a school of law at Harvard University. The Royall family coat-of-arms -- three stacked wheat sheaves beneath the university motto, Veritas -- was adopted as the school’s shield.

What this account omits entirely is that Isaac Royall was a slaveholder – his donated estate was built from slave labor and the slave trade.

I appreciate that the issue of how Harvard Law deals with its slave-money origins raises a set of very difficult questions. (A very thoughtful and wonderfully engaging discussion by Janet Halley, Harvard’s current Royall Chair, can be found here.)

Nonetheless, I think there is one simple question of fairness that transcends the historical, political, and social complexities: Shouldn’t HLS acknowledge Royall’s slaves as it does all other benefactors?

Surely they are benefactors. We know that the slaves were not paid the wages they were owed for their labor. So, to borrow a concept from remedies, it seems only fair that Royall’s slaves should, in retrospect, be awarded something like a constructive trust on their unremitted earnings. That trust property, having been converted to charitable contribution, leaves a residue of acknowledgement of giving. That acknowledgement is currently possessed, posthumously, by Royall. It seems only equitable to shift that res to the account of the slaves, or at least allow them to share as co-tenants.

I think it follows that, at a minimum, Harvard Law ought to acknowledge the slaves’ contributions in the school website’s historical narrative. And I think a tangible statement on campus – a wall-mounted inscription somewhere – would very much be in order. Many of the slaves’ names are known and are listed by The Royall House Association. Those individuals should be acknowledged. Using the information found on the Royall House Association’s rolls, I imagine the inscription might read as follows:

IN GRATEFUL ACKNOWLEDGEMENT OF THE INVOLUNTARY CONTRIBUTIONS OF THE SLAVES OF THE ROYALL ESTATE FOR THE FOUNDING ENDOWMENT OF HARVARD LAW SCHOOL:

HECTOR
QUACO
RUTH
NAN
CUFF
PETER JUNE
CUFFEE
PETER
FORTUNE
CAPTAIN
BLACK BETTY
ABBA
QUACOE
DIANA
JOHN
NANCY
BETTY
GEORGE
SARAH
JACOB
JEMMY
ABBA
ROBIN
COBA
WALKER
NUBA
TRACE
TOBEY
PRESENT
CATO
BARRON
NED
HOUSE PETER
ROBIN
QUAMINO
SMITH
PHILLIP
TRACE
SUE (SUSANNAH)
JONTO
OLD NEGRO MAN
SANTO
GIRL 6 YEARS OF AGE
OLD COOK
GEORGE
ABRAHAM
BETSEY
NANCY
COOPER
HAGAR
JOSEPH
MIRA
PHEBE
PLATO
STEPHY
DIANA
JOSEPH
BELINDA
JOSEPH
PRINE
PRISCILLA
BATHSHEBA
NANNY
AND OTHERS WHOSE NAMES ARE LOST


[Reposted from my April 21, 2009 post at PrawfsBlawg. Some very interesting comments followed.]

February 28, 2009

A Lawyer's Take on the Nine Dots Puzzle

A while back, Ben Bildstein wrote a very nice post about my konomark and copysquare projects. In Ben's post, he challenged readers with a puzzle concerning connecting nine dots with four connected lines.

I mentioned that I could solve Ben's dot puzzle with just three lines, instead of the four the challenge called for. I dropped the hint that to do so, you've got to think like a lawyer.

Ben recently gave up and asked for the solution.

So I will provide it here. But if you want to take a moment to think about it before I reveal it, here was Ben's challenge: "try to join these 9 dots with 4 straight lines, connected end-to-end; hint: start at a corner"

Ninedots-1

Okay.

Ready to see the answers?

Here is the engineer's answer. (Clever.)

Here is the lawyer's answer - with only three lines. (A little too clever.)

The thing is, Ben said "dots," instead of "points" that were "arranged in the pattern represented by the dots." Yeah, I know. As Ben pointed out, the puzzle is a nice illustration of "thinking outside the box." One might say that the lawyer's solution is "thinking outside of traditional notions of fair play." But hey, there's a lesson in there for future drafters of contract provisions and patent claims. I am a law professor after all.

Thanks again to Ben for his kind comments.

January 31, 2009

Public Domain Site of the Month: NOAA Photo Library

Expl0399

The National Oceanic and Atmospheric Administration, better known as "NOAA," has made a huge number of incredibly valuable public-domain images available on their photo library website.

Searchable and organized into collections and albums, the NOAA image collection includes nature at its scariest (tornados and lightning), cutest (curious and cuddly baby polar bears), and ugliest (scorpion fish and angler fish).

Figb0295

A particularly helpful reference set is a collection of animal shots called NOAA's Ark. While most of the collection is utilitarian or photojournalistic in character, there are some artistic photographs as well. And it's not just photographs. There are beautiful antique etchings and woodcarvings.

NOAA's librarians, developers, and photographers put forth a lot of effort to create such a valuable public resource. It's appreciated.

December 31, 2008

For Your Consideration - Disney/Pixar's Irony IRON-E

Wall-e_game Wall-e_pillow Wall-e_remotecontrolled Wall-e_throw Wall-e_sound Some of the WALL-E merchandise in transit from Disney/Pixar to a landfill near you: From top to bottom: plug-in video game, light-up pillow, programmable robot, throw, book that makes sounds when you press the buttons.

Now that it's after Christmas, if you live in Los Angeles, you are getting to hit full on with the onslaught of ads vying for your nod on the nomination ballots for the Academy Awards.

It's a lovely time of year to be in LA. Even if you are not a member of the Academy, you can't help but feel important as billboards, newspaper ads, and even radio ads all pucker up to you and offer something "for your consideration." After all, you don't need a ballot to not vote for a movie. And not voting for all those movies every year always made me feel good.

Now that I'm in Grand Forks, North Dakota - surprise, surprise - I am no longer assaulted by ads desperately seeking my "consideration." These days, my only form of ersatz rebuffery is refusing to purchase the brands of beet seed that billboards beseech me to buy.

But I am certain that back in La La Land, execs have purchased acres of ad space in Variety and on bus shelters throughout the city to tout Disney/Pixar's WALL-E for an Oscar nod. If not, it's because the movie is such a shoe-in it doesn't need any help. Not because it's good, but because it has great heaping shovels full of social and cultural MESSAGE of the sort the glitterati can't get enough of.

If you didn't see WALL-E, here's all you need to know [SPOILER ALERT:] Earth has become so cluttered with garbage that it has been abandoned by humans and all other life forms. WALL-E, a squat, adorable robot, dutifully scoops up the detritus of our consumption-driven society and stacks it into neat cubes. Humanity persists as race of sedentary blobs living on a spaceship where their fat bodies are whisked around in pods that move from one form of passive entertainment to the next. In the end, people learn to value the environment and exercise. In other words, the lesson is that humanity needs to take its political direction from Tinsel Town and strive toward having awesome bodies like those of all the underemployed SAG-members out jogging on the Miracle Mile on any given Wednesday. It's a beautifully animated validation of everything LA.

Now while the members of the Academy are being called upon to send in nominations for this orgy of SoCal self-love, we here in Grand Forks are not being ignored. We have our part to do. Specifically, Disney/Pixar is asking us out here in fly-over America to BUY WALL-E MERCHANDISE. In other words, we are supposed to clutter up the Earth with mountains of WALL-E licensed plastic crap and grow soft and pudgy with our WALL-E video games, DVDs, and other couch-viewed entertainment products that are compatible with a sedentary lifestyle. (Examples pictured.)

Ah, the irony! That would be like agronomy titan Holly Hybrids touting the aphanomyces tolerance of their beet seeds to North Dakotans but trying to sell muffins made with cane sugar to Californians. As if!!

[Cross-posted on The Backbencher.]

November 30, 2008

Public Domain Site of the Month: Miami University's Victorian Trade Card Collection

Sledding Here's the most recent site I've found with a wealth of public domain art: the Victorian Trade Card Collection at Miami University. 


These beautiful business post cards are a trove of all kinds of art. Covered wagons in Nebraska advertising Arbuckle Bros. coffee. A view of Ohio's Garfield Monument, the presidential resting place, brought to you by Mica Axle Grease. Tobogganing children to promote Champion-brand biscuits. 

The site explains that tradecards were a uniquely American form of advertising that reached its zenith in the 1880s and 1890s. Thanks to Miami University (that's the one in Ohio - not the similarly named university in Florida) there are thousands available online. 

October 31, 2008

Copysquare article: "Rethinking Sharing Licenses for the Entertainment Media"

Copysquare cubeThe Cardozo Arts & Entertainment Law Journal just published my article laying the philosophical and legal groundwork for the copysquare sharing-license scheme: 26 Cardozo Arts & Entertainment Law Journal 391. An extended abstract is here.

Also, Ben Bildstein in Australia (whom I had the pleasure of meeting in Sapporo at iSummit) blogged about copysquare and konomark on The House of Commons. He provided a thoughtful summary and analysis of the concepts, a good example, and, only loosely relatedly, a link to a brain-bending puzzle about connecting dots with only four end-to-end lines. (I can do it in just three lines - so there! (Hint: You've got to think like a lawyer, not like a mathematician.))

And here are pictures from the panel discussion in September at Cardozo Law School in New York, sponsored by the Squadron Program in Law, Media and Society and the Cardozo Arts & Entertainment Law Journal. It was a thoroughly enjoyable time!

September 19, 2008

“Tropic Thunder”: Heartless and Cruel

The new movie “Tropic Thunder” is a sad reminder that among all disadvantaged groups in America, the developmentally disabled are unique in the particular brand of prejudice and ridicule they must endure.

Even before its release, the comedy drew fire for its treatment of the mentally disabled. I rushed out to see it, as it piqued my interest on several levels. I’m an occasional stand-up comic, a full-time law professor teaching and writing about media law, and my brother is severely retarded.

Ben Stiller stars in the DreamWorks picture as a struggling actor, the high point of whose career is taking on the role of a man with mental retardation, seen as a film-within-the-film. Stiller’s portrayal of the mentally disabled man is an over-the-top caricature played up for laughs – which it got plenty of when I saw the film.

Meanwhile, co-star Robert Downey, Jr.’s character makes copious use of the word “retard.” In a line apparently designed to take root as a popular catch-phrase and t-shirt slogan, Downey’s character warns Stiller’s, “Never go full retard.”

I hope most people will recognize the film for what it is: heartless and cruel.

Under fire from advocates for the developmentally disabled, DreamWorks and the film’s actors have tried to take the moral high-ground by arguing that the film is an equal-opportunity offender, spoofing all of Hollywood, and not singling out the mentally disabled for special ridicule. But that’s not true.

For instance, while much of the film’s subject matter plays off of African-American stereotypes, it does so with the foil of a black character, played by Brandon T. Jackson, who points out the bigotry and provides a discourse about it. No such perspective is offered on behalf of the developmentally disabled, who are lampooned with impunity.

The “Hollywood spoof” pretext also falls apart when you realize that while a spectrum of racial and religious minorities fill the ranks of producers, executives, and other Hollywood shot-callers, the developmentally disabled do not. And, in frankness, they never will. That’s the nature of this disability, and its peculiar curse. So while racial barbs and religious slurs might, in the context of a large Hollywood collaboration, qualify as some form of collective self-mockery, there can be no such excuse when the developmentally disabled are made laughingstocks.

Downey, for his part, defended the film on the basis of the First Amendment.

“You know, if I want to protest something because it offends me, that's my right as an American,” he said at the movie’s premiere. “And it's also any artist's right to say and do whatever they want to do.”

Co-star Jack Black offered a similar defense.

“Everyone’s entitled to their opinion,” he said. “Obviously, that’s what America is all about. If you’ve got something to say, you are free to say it.”

We all cherish the First Amendment. Playing the free-speech card in this circumstance, however, is a dishonest way of trying to deflect criticism. The question is not constitutionality; it is civility.

The taunts in the film are not illegal, nor should they be, but they are hateful and sickening. Ideals of artistic freedom cannot relieve even the most well-paid of bullies from moral responsibility for what they say and do.

The fact is that even among the various species of hate speech, ridicule of those with retardation is unique in its brutishness. Unlike racial minorities, religious adherents, or the physically disabled, those with developmental disabilities cannot well defend themselves with wit and well-crafted retorts. That’s why the arguments of Downey and Black – that everyone has the right to say whatever they want – are especially hollow.

Stiller, the film’s director, star, co-producer, and, along with a collaborator, author of the story and screenplay, took a different tack in dealing with the criticism.

“I feel if people see the movie, I’m confident that they’ll get where we’re coming from in the film,” Stiller said.

Having seen it myself, I think it’s fair to say that where Stiller comes from is a shallow reserve of material and talent upon which to draw. While I won’t weigh in on Stiller’s abilities generally, I will say that Stiller’s creation of a developmentally disabled character for “Tropic Thunder” was neither difficult nor clever. In fact, Stiller’s performance is indistinguishable from the antics of the lout we all remember from middle school who never missed an opportunity to point and laugh at the kids getting off the “short bus.”

The only difference is that Stiller’s “humor” is in a slick multi-million-dollar movie rather than a locker-lined hallway.

“Tropic Thunder” leaves one with little hope that Hollywood will grow out of such callousness. Critics, by and large, loved the movie. And big stars lined up for cameos and supporting roles, including Tom Cruise, Matthew McConaughey, Tyra Banks, Jon Voight, Jennifer Love Hewitt, Jason Bateman, Lance Bass, and Alicia Silverstone. It is heartbreaking to see people of such wealth, popularity, and good looks piling on in such a mean-spirited display of teasing and cruelty.

Regardless of what indifference is exhibited by the red-carpet club, I have faith that the rest of America has greater reserves of kindness.

Here’s hoping movie-goers will think twice before patronizing and praising such sad and dehumanizing fare.

[Also published as an op-ed today by the Grand Forks Herald]

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