On Friday, we sent off our 11 page reply letter to the Copyright Office, in response to the questions they sent us regarding our Digital Millennium Copyright Act exemption requests for DRM abandon-ware.
There is a semi-decent chance that I will be either employed or engaged in consulting work half-time starting in September, which could make it difficult for me to blog (particularly given the style and tone that I tend to use). Thus, I want to take this opportunity now, while I still have the freedom to fully express my thoughts, to reflect on this process, and thank the many who assisted me.
First, I originally had the idea for the exemption request in May or so of last year. In the process of writing a law paper on the hacking of subsidized electronic goods by consumers, I spent a lot of time studying the cell-phone unlocking exemption that Jennifer Granick had won back in 2006. I think it would be fair to say I was inspired by her actions.
The DMCA process is one of the few ways through which an individual can actually make a difference to impact federal cyber law and copyright policy. It doesn't matter how many former Senate staffers you have working for your cause, nor are donations to PACs a necessary requirement for access. As someone with both a desire to make a difference, and a lack of money/access, the appeal was clear.
Writing up the request
My exemption submission simply wouldn't have been possible without the assistance of a skilled legal team, lead by Phil Malone at the Harvard cyberlaw clinic. While lay-persons do submit requests every year, they are never taken seriously (and when you read some of them, you understand why). The process is fairly straight-forward, but still requires some knowledge of the specifics of the DMCA.
I had the idea for both the consumer and researcher exemptions, and probably provided around 50-60% of the text in the original exemption request comment and in our reply letter. After reading Slashdot every day for the past 14 years, it was easy for me to dig up citations to all the past instances of failed media stores, a task which would have taken a clinical intern significanly more time.
I gather that most clinical clients do not participate as much, nor directly contribute as much to the final work product. However, since I know the DMCA fairly well, and knew the specifics of situation which we were examining, I think my participation helped quite a bit. Plus, it is (for a copyright policy geek) quite a fun activity.
However -- my participation alone was not enough. Phil Malone and Arjun Mehra turned my rantings of repeated industry abuse and a plea for relief into a compelling legal document. To be clear -- while I strongly encourage technologists and copyright activists to get involved with the DMCA exemption process, you really are wasting your time without the assistance of tech-savvy lawyers.
Arguing for the exemptions in DC
Before going to DC in May to argue in-person for my exemption requests, I went to a Federal Trade Commission town-hall focused on DRM. This event was something of a trial run, with many of the same characters who would later show up in DC.
The industry folks who argued on behalf of DRM at that event, were frankly, clueless shills masquerading as experts, and as such, they seemed to do a good enough job revealing their ignorance that I didn't need to do much to help.
As one copyright expert tried to warn me ahead of time, most of the people at the FTC town hall were on the "B-team", while the industry would make sure to send the "A-team" to the DMCA exemption hearing.
Unfortunately, I didn't really listen to him, and so when I did go to Washington to argue for my exemptions before the Copyright Office, I was a tad bit over-confident.
An important note for future copyright geeks: If you are considering asking for a DMCA exemption, and end up arguing for it in person, do not under-estimate Steve Metalitz, the industry's main attack dog on DMCA related issues. He is very good, and very quick on his feet. Unless you are a seasoned lawyer, do not allow him to drag you into the weeds in a discussion of the specifics of copyright law -- stick to issues of consumer harm and industry abuse.
The hearing itself was thrilling, exciting, and sort of like a court room -- with a panel of judges (well, copyright office lawyers) on a podium at the front of the room, and with the "good guys" (me) and the "bad guys" (Metalitz and someone from Time Warner) at two tables, seperated by an aisle.
My only real regret from the hearing was not having a hot-shot lawyer sit next to me, who I could defer to on legal related questions. It wasn't until the hearing was over that I looked back, and saw that both Wendy Seltzer and Fred von Lohmann had snuck into the hearing after it started, and had thus been watching it from the back row.
While I handled things pretty well, on questions relating to the specifics of section 1201, I wasn't as strong. Luckily, the Copyright Office attorneys didn't really hammer me with legal questions, and focused the questions on topics that I could actually provide expert testimony.
A word on timing and legal clinics
A DMCA exemption is a perfect, small, self-contained project for Law School legal clinics. Exemption requests are due in the fall, optional reply comments are due in the spring, the hearings are in the late spring, and then question reply comments are due over the summer. The entire process, from start to finish, is over in less than 9 months. Furthermore, it is something that can be done by a single (supervised) clinical intern.
As a result, it is not terribly surprising that university law clinics are now playing an increasingly prominent role in the DMCA exemption process.
In 2009, 3 different groups of exemptions were sought by individuals represented by the Harvard cyberlaw clinic, the Samuelson-Glushko Technology Law & Policy Clinic at the University of Colorado School of Law, and the Glushko-Samuelson Intellectual Property Law Clinic at the Washington College of Law, American University. Clinics have played a similarly strong role in previous years.
Unfortunately, it does not appear that the copyright office realizes the role that these clinics play (and the students who provide the manpower). As a result, the DMCA exemption hearings were scheduled for May 1 at Stanford, and May 6,7, 8 in Washington DC. For those of you not (or no longer) in academia -- this is right before, or during the middle of final exams for many law students.
Had the copyright office scheduled the hearings two or three weeks earlier, they would have made the lives of the clinical students much easier. I know from my own experience that it was very difficult to get much in the way of time as I tried to prepare for the hearings from Arjun Mehra (my clinical student) and Phil Malone (who teaches classes in addition to his role running the clinic, and thus had class projects and term papers to grade).
Likewise, sending out questions during the middle of the summer, when the clinical students are off working internships is not particularly helpful. Luckily, Berkman has a few fantastic students who are interning at our cyberlaw clinic for the summer. As a result, I was able to get the help of another fantastic clinical student, Rachel Gozhansky, who helped in drafting our reply to the Copyright Office's questions.
I am not sure if the two other clinics were able to gather the student summer labor necessary in order to work on the responses to the copyright office's questions.
Given the increasingly important role that law school clinics are playing in the DMCA process, I hope that the Copyright Office will consider the realities of the academic calendar for future DMCA exemption rulemakings.
Showing posts with label copyright. Show all posts
Showing posts with label copyright. Show all posts
Sunday, July 12, 2009
Thursday, June 14, 2007
A Takedown Resistant, Unofficial Podcast Feed for "This American Life"
Update Sept 28, 2008:
I get a fair number of hits to this page from people looking for mp3 copies of This American Life episodes.
The short version, is that you can get each episode here: http://audio.thisamericanlife.org/jomamashouse/ismymamashouse/EPISODENUMBER.mp3
The longer explanation can be found here: New location for This American Life Mp3s
The podcast feed that I created, as described in this blog post, was taken down due to a letter sent by This American Life. To read it, go here: An Emotional Blackmail Takedown: Remove The Podcast, Or We Shoot This Puppy
The vanilla feed, which lists the 15 most recent episodes as broadcast by TAL.
A feed of only new episodes, which does not include the reruns as broadcast by TAL.
Please note that this was not done with the permission or consent of NPR, PRI, or the fine folks at This American Life. Show your support, go to the TAL website, and donate 20 bucks.
Introduction
I'm a big fan of the Chicago Public Radio show This American Life (TAL), which is broadcast on many US National Public Radio affiliates nationwide. For some reason, the public radio and TV business (in the US and elsewhere) has not yet figured out this whole Internet thing, and thus many of their online/podcast offerings are less than stellar.
Many young people do not listen to radio anymore. Even when I'm in the US - simply put - if This American Life, Democracy Now, Open Source, Radio Lab and other fantastic radio shows were not available as podcasts - there is no way I'd listen to them. I cannot concentrate on work while listening to an informative radio show, and thus for the most part, streaming them on my computer is just not practical. Instead, they are perfect for the tram ride/walk to work, airplane/bus trips, or walks in the park.
TAL's current business/podcasting model is as follows:
This is sub-optimal for many reasons - the most important of which is that I have no desire to enrich Steve Jobs. When I give money to TAL, it is through a direct donation on their website. I do not wish for Apple, or any other middleman to take 30-50%.
TAL has clearly been struggling to find a business plan that works - and are probably contractually bound by their recently renegotiated contract with Audible.com to not allow their back-catalog to be podcasted for free. As Current.org noted, "[t]he barrier to podcasting for years was the longstanding Audible deal. The vendor sold episodes of TAL for $3.95 a pop, barring the show from offering free downloads."
TAL has also recently had a podcasting fund-drive to pay for their yearly bandwidth bill of $108k. I've given them $20, but I can't figure out why they don't just put all of their content on archive.org (as Democracy Now has done), and thus do away with their bandwidth bill completely. Likewise, TAL is extremely popular amongst many tech geek circles - I am sure that a company or two would step up to the plate and give them free bandwidth if they asked.
I suspect that their unwillingness to let others host their media comes from their desire to somehow find a way to preserve their audible.com/iTunes deal. If they are making more than $108k through paid downloads, then perhaps this is a wise choice. The nicer, and smarter approach (in my humble opinion) would be to ditch the paid podcasting model, allow other organizations to host the TAL podcasts, and thus do away with that nasty bandwidth bill. In three weeks of fundraising, they were able to raise over $110k - more than enough to cover the costs of their 300,000 podcast downloads per week. If bandwidth were provided by others for free, this money could instead go towards TAL's other operating costs - and thus make up for the loss of the iTunes/audible.com revenue stream.
When This American Life first moved from Realaudio to MP3 storage of their show archive, the decision seems to be primarily due to issues with Realplayer - and not because they wished to enable listeners to save copies of shows to their machines. While many listeners petitioned TAL for a podcast feed, the show resisted.
Due to the fact that the episodes were being stored as MP3s, it was quite possible for users to download them to their own computers, and for others to create a podcast RSS feed.
In 2006, Jared Benedict and Jon Udell did just this, and made unofficial This American Life podcast feeds. Soon, links appeared in popular websites such as BoingBoing, and shortly after, the TAL webmaster sent a polite takedown request to both gentlemen. Jared sums it up by stating, "we received friendly emails from Ms. Meister, This American Life’s webmaster, making a request to take down the hyperlinks and RSS feeds, or she’d regrettably have to get lawyers involved. While Ms. Meister did miss the mark by accusing us of copyright infringement without a clear understanding of what we were actually doing, or what copyright law allows, she was trying to be polite and friendly which I appreciate."
Subsequently, both men took down their podcast feeds.
Last year, I discovered that TAL has all of their mp3s in one directory, amusingly located at http://audio.thisamericanlife.org/jomamashouse/ismymamashouse/episodenum.mp3. Clearly, their webmaster has a sense of humor.
Unfortunately, it is not possible to give itunes/other podcast clients a directory to download mp3 files from, so a podcast RSS feed is necessary. TAL's official podcast feed only has the most current episode available for download - which doesn't help me when I miss a week, or if I want to load up my iPod for a long journey.
I've learned enough about Internet law at this point to know that website owners are within their rights to get angry if you scrape their website on a regular basis. This comes down to a tort claim of trespass to chattels.
While TAL does provide a podcast RSS feed that I could scrape, I thought it best to avoid downloading data from there, if just to provide a bit of legal distance, and avoid any claim that I was hammering their servers.
Yesterday, I announced and made available a script that pulls data from Google's cache of popular RSS feeds. By using that script, I can be sure that I am not directly accessing TAL's webservers, nor am I increasing the load on their servers (assuming of course, that at least a couple other people using Google Reader to keep up to date with TAL episodes).
Regarding copyright - The content of the episodes, show logos, etc are protected by copyright law. However, episode names, broadcast dates and other info are not. It is for this same reason that one cannot copyright tv schedule listings.
The issue of deep linking (i.e. providing a direct link to a mp3 file on TAL's website) is a legal grey area. The case law here is by no means solid. A few years back, A California judged ruled that, "hyperlinking does not itself involve a violation of the Copyright Act" because "no copying is involved." I am fairly confident that I am on firm ground - since, afterall, the content I am linking to is perfectly legal (thus the DeCSS decision shouldn't apply) and accessible by any user who visits the TAL website and uses their embedded flash mp3 player.
With those legal issues dealt with for the most part, I decided to roll my own.
I've setup two unofficial podcast feeds for This American Life.
The vanilla feed, which lists the 15 most recent episodes as broadcast by TAL.
A feed of only new episodes, which does not include the reruns as broadcast by TAL.
Please note that this was not done with the permission or consent of NPR, PRI, or the fine folks at This American Life. Show your support, go to the TAL website, and donate 20 bucks.
I get a fair number of hits to this page from people looking for mp3 copies of This American Life episodes.
The short version, is that you can get each episode here: http://audio.thisamericanlife.
The longer explanation can be found here: New location for This American Life Mp3s
The podcast feed that I created, as described in this blog post, was taken down due to a letter sent by This American Life. To read it, go here: An Emotional Blackmail Takedown: Remove The Podcast, Or We Shoot This Puppy
The vanilla feed, which lists the 15 most recent episodes as broadcast by TAL.
A feed of only new episodes, which does not include the reruns as broadcast by TAL.
Please note that this was not done with the permission or consent of NPR, PRI, or the fine folks at This American Life. Show your support, go to the TAL website, and donate 20 bucks.
Introduction
I'm a big fan of the Chicago Public Radio show This American Life (TAL), which is broadcast on many US National Public Radio affiliates nationwide. For some reason, the public radio and TV business (in the US and elsewhere) has not yet figured out this whole Internet thing, and thus many of their online/podcast offerings are less than stellar.
Many young people do not listen to radio anymore. Even when I'm in the US - simply put - if This American Life, Democracy Now, Open Source, Radio Lab and other fantastic radio shows were not available as podcasts - there is no way I'd listen to them. I cannot concentrate on work while listening to an informative radio show, and thus for the most part, streaming them on my computer is just not practical. Instead, they are perfect for the tram ride/walk to work, airplane/bus trips, or walks in the park.
TAL's current business/podcasting model is as follows:
- The latest episode can be downloaded through a podcast feed for free from their website.
- Archived episodes can be streamed online (via a flash player) on their website but not downloaded.
- Listeners wishing to podcast archived episodes must buy them online - from either Apple's iTunes store, or audible.com for 99 cents
This is sub-optimal for many reasons - the most important of which is that I have no desire to enrich Steve Jobs. When I give money to TAL, it is through a direct donation on their website. I do not wish for Apple, or any other middleman to take 30-50%.
TAL has clearly been struggling to find a business plan that works - and are probably contractually bound by their recently renegotiated contract with Audible.com to not allow their back-catalog to be podcasted for free. As Current.org noted, "[t]he barrier to podcasting for years was the longstanding Audible deal. The vendor sold episodes of TAL for $3.95 a pop, barring the show from offering free downloads."
TAL has also recently had a podcasting fund-drive to pay for their yearly bandwidth bill of $108k. I've given them $20, but I can't figure out why they don't just put all of their content on archive.org (as Democracy Now has done), and thus do away with their bandwidth bill completely. Likewise, TAL is extremely popular amongst many tech geek circles - I am sure that a company or two would step up to the plate and give them free bandwidth if they asked.
I suspect that their unwillingness to let others host their media comes from their desire to somehow find a way to preserve their audible.com/iTunes deal. If they are making more than $108k through paid downloads, then perhaps this is a wise choice. The nicer, and smarter approach (in my humble opinion) would be to ditch the paid podcasting model, allow other organizations to host the TAL podcasts, and thus do away with that nasty bandwidth bill. In three weeks of fundraising, they were able to raise over $110k - more than enough to cover the costs of their 300,000 podcast downloads per week. If bandwidth were provided by others for free, this money could instead go towards TAL's other operating costs - and thus make up for the loss of the iTunes/audible.com revenue stream.
When This American Life first moved from Realaudio to MP3 storage of their show archive, the decision seems to be primarily due to issues with Realplayer - and not because they wished to enable listeners to save copies of shows to their machines. While many listeners petitioned TAL for a podcast feed, the show resisted.
Due to the fact that the episodes were being stored as MP3s, it was quite possible for users to download them to their own computers, and for others to create a podcast RSS feed.
In 2006, Jared Benedict and Jon Udell did just this, and made unofficial This American Life podcast feeds. Soon, links appeared in popular websites such as BoingBoing, and shortly after, the TAL webmaster sent a polite takedown request to both gentlemen. Jared sums it up by stating, "we received friendly emails from Ms. Meister, This American Life’s webmaster, making a request to take down the hyperlinks and RSS feeds, or she’d regrettably have to get lawyers involved. While Ms. Meister did miss the mark by accusing us of copyright infringement without a clear understanding of what we were actually doing, or what copyright law allows, she was trying to be polite and friendly which I appreciate."
Subsequently, both men took down their podcast feeds.
Last year, I discovered that TAL has all of their mp3s in one directory, amusingly located at http://audio.thisamericanlife.org/jomamashouse/ismymamashouse/episodenum.mp3. Clearly, their webmaster has a sense of humor.
Unfortunately, it is not possible to give itunes/other podcast clients a directory to download mp3 files from, so a podcast RSS feed is necessary. TAL's official podcast feed only has the most current episode available for download - which doesn't help me when I miss a week, or if I want to load up my iPod for a long journey.
I've learned enough about Internet law at this point to know that website owners are within their rights to get angry if you scrape their website on a regular basis. This comes down to a tort claim of trespass to chattels.
While TAL does provide a podcast RSS feed that I could scrape, I thought it best to avoid downloading data from there, if just to provide a bit of legal distance, and avoid any claim that I was hammering their servers.
Yesterday, I announced and made available a script that pulls data from Google's cache of popular RSS feeds. By using that script, I can be sure that I am not directly accessing TAL's webservers, nor am I increasing the load on their servers (assuming of course, that at least a couple other people using Google Reader to keep up to date with TAL episodes).
Regarding copyright - The content of the episodes, show logos, etc are protected by copyright law. However, episode names, broadcast dates and other info are not. It is for this same reason that one cannot copyright tv schedule listings.
The issue of deep linking (i.e. providing a direct link to a mp3 file on TAL's website) is a legal grey area. The case law here is by no means solid. A few years back, A California judged ruled that, "hyperlinking does not itself involve a violation of the Copyright Act" because "no copying is involved." I am fairly confident that I am on firm ground - since, afterall, the content I am linking to is perfectly legal (thus the DeCSS decision shouldn't apply) and accessible by any user who visits the TAL website and uses their embedded flash mp3 player.
With those legal issues dealt with for the most part, I decided to roll my own.
I've setup two unofficial podcast feeds for This American Life.
The vanilla feed, which lists the 15 most recent episodes as broadcast by TAL.
A feed of only new episodes, which does not include the reruns as broadcast by TAL.
Please note that this was not done with the permission or consent of NPR, PRI, or the fine folks at This American Life. Show your support, go to the TAL website, and donate 20 bucks.
Tuesday, February 13, 2007
Digging up dirt on the International Intellectual Property Institute
One of my colleagues in my Copyright Law class today asked me if I knew anything about the International Intellectual Property Institute (IIPI). I had no idea.
A quick bit of googling, and I was able to discover quite a bit
From their own website "The International Intellectual Property Institute (IIPI) is a not-for-profit 501(c)(3) corporation located in Washington, DC. As an international development organization and think tank, IIPI is dedicated to increasing awareness and understanding of the use of intellectual property as a tool for economic growth, particularly in developing countries."
They've held seminars in IP Enforcement, as it relates to 'piracy' - and in general, most of the content on their website is very pro-industry. I assume that this is some kind of astro-turf group propped up by the major IP stakes holders.
Enter Guidestar.com.
I was able to pull up their IRS 990 filing from 2004. In that year, from a total budget of 1.1 million dollars, they received $2k short of 3/4 of a million dollars in "government grants".
Call me naive, but why is the US government giving nearly a million dollars in grant money to a totally pro-industry lobby group? Can't the RIAA and MPAA fund these guys out of petty cash?
A quick bit of googling, and I was able to discover quite a bit
From their own website "The International Intellectual Property Institute (IIPI) is a not-for-profit 501(c)(3) corporation located in Washington, DC. As an international development organization and think tank, IIPI is dedicated to increasing awareness and understanding of the use of intellectual property as a tool for economic growth, particularly in developing countries."
They've held seminars in IP Enforcement, as it relates to 'piracy' - and in general, most of the content on their website is very pro-industry. I assume that this is some kind of astro-turf group propped up by the major IP stakes holders.
Enter Guidestar.com.
I was able to pull up their IRS 990 filing from 2004. In that year, from a total budget of 1.1 million dollars, they received $2k short of 3/4 of a million dollars in "government grants".
Call me naive, but why is the US government giving nearly a million dollars in grant money to a totally pro-industry lobby group? Can't the RIAA and MPAA fund these guys out of petty cash?
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