Category Archives: free culture

Next week, guest on this channel: Professor William Fisher of Harvard, to discuss his new, and IMHO, extremely important book. Be prepared. Those Harvard profs like to cold-call on people. Continue reading →

The Sinclair Broadcasting Group, owner of the largest chain of television stations in the Nation, including 20 Fox stations, has apparently decided to preempt its regular programming to show a documentary that alleges that Kerry “betrayed” American prisoners during the Vietnam War. This contrasts with the judgment of other broadcasters, including, for example, CBS that decided it was “inappropriate” for them to run a program about the intelligence [sic] behind the President’s decision to invade Iraq.
I criticized CBS for its judgment about propriety. From its description, that show seemed to me plainly “appropriate” before an election that would decide, in part, whether the President’s decision was one America wanted to ratify. By contrast, I thought its decision to air a show about the President’s service in the National Guard was inappropriate — not relevant to this election.
I’ve not seen the Sinclair documentary (indeed, there are conflicting reports about whether it is in fact completed). From its description, it seems to me to be closer in content (but not in viewpoint) to the show CBS did show, and further from the show CBS decided was “inappropriate,” and so I expect, on the principle I’ve articulated so far, I would criticize the Sinclair decision. Maybe not, depending upon the content, but probably.
Many have criticized the decision to show the documentary on legal grounds. They have called upon the FCC to stop the broadcast � an extraordinary action for any government actor to take (almost as absurd as stopping a recount from a First Amendment perspective) � and Chairman Powell has indicated, on First Amendment grounds, that he won’t stop the broadcast.
No one thinks there’s a First Amendment problem when the New York Times endorses Kerry, or the Wall Street Journal endorses Bush. And no doubt, the difference between Sinclair and these newspapers is, one could say, just a difference in degree.
But differences in degree become differences in kind � especially when the power a speaker has is supported by government backed monopolies. Sinclair has the power it has as a broadcaster because the government has given it an exclusive right to something the techno-ignorant call “spectrum.” These absurd (and constitutionally unjustified) grants of power to control who gets to speak, of course, continue, as the New Yorker’s James Surowiecki brilliantly describes this week. They have always been understood to raise unique questions under the First Amendment.
So I’m sympathetic to those who would qualify the First Amendment analysis that applies to newspapers when applied to broadcasters, though I am less eager than some of my friends to see the FCC decide what speech gets to go on television before a Presidential election.
So much is familiar.
But less familiar is a second sort of “regulation” that Sinclair will not escape. That is the “regulation” of the market, buttressed by the law suits that will certainly be filed by Sinclair shareholders.
In the last week, the stock price of the Sinclair Group has fallen by 10%. The company has lost $60,000,000 in market cap. Josh Marshall has a great clip from a Lehman Brothers research memo attacking the decision from a business perspective.
This drop is no doubt in part a calculation about how Sinclair will fair if the election goes for Kerry. But in part it may also be the product of a large citizen reaction to this corporate partisanship. Among the groups creating pressure on the company are:
Boycottsbg.com
SinclairWatch.org
MediaMatters.org
The First Amendment does not mean people have to like you for what you say. Nor does it protect you if people decide not to buy your product because of what you say, or advertise on your network, because of what you say. All it means is that the government can’t punish you for what you say (or at least, that’s at least what it should mean, “indecency” notwithstanding).
But “free speech” is more than what the First Amendment says. And I wouldn’t be honest if I didn’t confess a bit of anxiety at all this “punishing” for what people — including corporations — say. The most that can be said in its defense is, I should think, this: In a world where “mainstream” broadcasters such as CBS are too timid to broadcast a plainly relevant story about war “too close” to an election, or where NBC refuses to license clips from “Meet the Press” because it wants to stay “neutral” in a political debate, the action by a concentrated, powerful, rightwing network to use its power to direct the election is bad. If we could break up the government supported monopolies of broadcasters, and change the culture among broadcasters generally, I’d have no problem with it. But now, in this culture, in an election this close, the decision stinks. And I for one won’t shed any tears for the “punishment” Sinclair receives from the market, or even the plaintiffs’ bar. Continue reading →

We’ve collected many great stories about the burden of copyright relevant to our case, Kahle v. Ashcroft. You can see them here. Please add more. Continue reading →

I’ve been getting lots of emails regarding this potential suit against Disney for its use of the character Peter Pan. But Disney is right — as we’ve been litigating in a related case, Somma v. GOSH, for the past year.
That case is about to get interesting. More soon. Continue reading →

Or so he is reported to have said here.
Note to General Ashcroft: We checked. You’re right. You don’t. Nor do you have a privacy attitude, a rule of law attitude, or a free speech attitiude.
So here’s the real question: How can you be Attorney General of the US, if you reject so much of the Constitution’s values? (Public Domain, Article I, 8, 8; Privacy, Amendment 4; Rule of Law: the Constitution, as interpreted by the Supreme Court, in, say, Rumsfeld v. Padilla; Free Speech: Amendment 1).
Stay tuned: Oral arguments in Kahle v. Ashcroft on the 29th. (Could there be a better case name?) Continue reading →

So I’m a big believer in the value that registration requirements create. Copyright law is the ONLY federal IP regulation that doesn’t have mandatory registration. But as EFF‘s Jason Schultz points out to me in an email, HR 4077 is about to make registration even less useful:

Don’t know if you saw this, but the MPAA/RIAA’s new copyright bills, HR 4077 (passed by the House, awaiting vote in the Senate) makes two significant changes to what little remains of copyright formalities in the US:
1) Section 602:
“A certificate of registration shall satisfy the requirements of this section and section 412 irrespective of any inaccurate information therein …”
— in order words, you don’t even have to have an accurate registration anymore in order to sue for infringement. Potentially, you could even make knowing misrepresentations in your form. So much for fair and public notice.
2) Section 603:
“Section 504(c)(1) of title 17, United States Code, is amended in the second sentence by inserting before the period ��, except that the court in its discretion may determine that such parts are separate works if the court concludes that they are distinct works having independent economic value��.
In other words, you can get statutory damages for separate works within a compilation work, even if you only register the compilation work. The twist is that there is very little requirement that a compilation registration list all distinct and separate works contained therein. Thus, you can now register and sue on works and get statutory damages without any real public notice. The main reason for this is that the RIAA was having problems suing for individual song downloads because they had registered the entire album as a single compilation work. As applied to software, this could allow someone like SCO to sue for the copying of a single file or .dll when the vendor had only registered the entire program or OS. So much for metes and bounds.

Continue reading →

Here’s a blog devoted to popculture remix. CC licensed. But needs a RSS/Atom feed. Continue reading →

I missed a bunch of cuts here. Apparently, the true magic of Hatch’s strategy will happen today. It will be hard to follow, because it will all happen so quickly. But this is the plan:
The House has passed HR 2391, the CREATE Act, which modifies how collaboration affects patentability.
Apparently, Senator Hatch will substitute that bill today, and plug in:
(1) HR 3632, which regulates the trafficking in fraudulent labels (including watermarks?), as well as a sentencing enhancement for using a falsely registered domain name in the commission of your offense, as well as
(2) HR 4077, which, among other things, includes the following:
(a) the PIRATE Act, which increases copyright enforcement power
(b) the ART Act, which criminalizes camcording in a theater
(c) a sense of Congress that P2P is bad (really)
(d) a reduction of the criminal copyright liability standard, to make it easier to catch file-sharers (the new standard is in the extended entry below)
(e) the Family Movie Act, which codifies ClearPlay-like technology
So what’s the politics of all this: By my count, (1) lots for the content industry, (2) one bit for family values (ClearPlay), (3) zero for the pubic domain.
UPDATE: PublicKnowledge has an action center. Continue reading →

So there’s great excitement about the effective pause that’s been pressed on the INDUCE Act. Hatch has pulled back and is regrouping.
But has anyone been mapping the bigger strategy here? For the last year, Hatch and friends have been passing these single page copyright acts, getting them marked up and put into the hopper through expeditied procedures. All but one was directly awful; the one is indirectly awful. (This is the bill that explicitly authorizes technologies like ClearPlay, but which, indirectly implies, that other related technologies are not “fair use” (“why did you need a statute to permit ClearPlay if you have a ‘fair use’ right…”))
These thousand tiny cuts have now been united in a single bill, HR 4077, which is racing through Congress — while all our attention was focused on INDUCE.
Nice play by those lobbyists. I guess that’s why they get paid so much. Continue reading →

My nephew, Tom, has got a blog. If you knew my family, you’d know this is real progress. Continue reading →