Boycott Western Digital - No to DRM Drives

Western Digital has built a new line of Defective by Design Hard Drives with forced "features" that limits the user's ability to share files. Western Digital is the world's second largest hard-drive manufacturer.

This is a terrible sign for Fair Use and users rights. The technology is being sold to protect copyright but have not safe guards for your rights even if the files to be shared are created by the users themselves. I put my work under a CC license for a reason I want to share it and I do not want my hardware screwing with that. Adding digital locks at the hardware level* allows for no discrimination by users and breaking this system my be a violation of the DMCA.

The good news is that the software Western Digital is using only works on Windows. I see where Linux and Mac will become the OS's of the free world, although this is not Microsoft's fault this time, the blame is all on Western Digital.

Write Western Digital and let them know that you want them to remove all DRM from their products before you buy another hard drive from them. I have personally purchased between 5-10 drives from them in the past, I used them for a RAID Array when I was EQing before Law School devoured all my time. I will have to check out Maxtor and Seagate now.

Press:
Wired

*Technicly speaking this is a software lock that is embedded in a peice of hardware.

Blog Recommendations

I recently starting using Google's "blog recommender" tool in Google Reader and have found three very interesting blogs worth checking out:

Patent Troll Tracker: This blog rocks! Troll Tracker is an anonymous blogger, probably a patent lawyer, that reports over abusive patent claims and litigation. The posts are well cited with links to court docs. There is a current bounty out on the Tracker's identity. A powerfully patent attorney , and alleged Troll, Ray Niro is offering $5k to anyone who unearths his identity. I strongly recommend this blog,

Wa Patents: This is a local Seattle blog run by Mark Walters a patent attorney at Darby & Darby. The content is interesting, recent and especially relevant to patent geeks in Washington. I respect the authors knowledge and depth of treatment on local and nation patent issues even though I do not agree with his economic and political arguments. I recommend this blog especially to people with an interest in local patent issues.

Copyfight: This is a team blog with some impressive names in copyright law including Donna Wentworth of the Berkman Center and Wendy Seltzer of of Northeastern University School of Law. The articles are a bit on the academic side, but very well researched and cited. The only downside is that the authors seem to post in cycles and I can not tell which authors are still active or have gone elsewhere to blog.

Avril Lavigne representative bashes RIAA

A Canadian organization representing several musical artists including Avril Lavigne, Sarah McLachlan, and The New Pornographers has made a very strong statement against the RIAA and DRM. I applaud the coalition for standing up for users and realizing that to succeed in a digital world we need to work with users not against them.

"Lobbyists for major labels are looking out for their shareholders, and seldom speak for Canadian artists. Legislative proposals that would facilitate lawsuits against our fans or increase the labels' control over the enjoyment of music are made not in our names, but on behalf of the labels' foreign parent companies."

The CMCC is united under principles including:

Suing Our Fans is Destructive and Hypocritical
Artists do not want to sue music fans. The labels have been suing our
fans against artists' will, and laws enabling these suits cannot be
justified in artists' names

Digital Locks are Risky and Counterproductive (DRM is bad)
Artists do not support using digital locks to increase the labels'
control over the distribution, use and enjoyment of music or laws that
prohibit circumvention of such technological measures. Consumers
should be able to transfer the music they buy to other formats under a
right of fair use, without having to pay twice.

More information about the CMCC (including a more detailed policy
statement) is available at www.musiccreators.ca.

Seattle University Law Student for Free Culture Officially Recognized by Student Bar Association

The SU Law Students for Free Culture (SFFC) chapter has been actively pursuing official status for almost a year. We started recruiting last spring at the incoming 1L student organization fair and continued the process throughout this fall. We currently have 15 members and 4 active board members. This last week we received official status as a student organization. This makes Seattle University Law one of a small group of law schools that officially support the free culture movement. Most other SFFC chapters are in undergrad institutions.

This official status is important for three reasons:

First it demonstrates the schools involvement on social justice issues that are unique to the Information Age.

Second the official status allows us a greater opportunity to voice our concerns on issues of relevance to legal scholarship and open access.

Third the official status will allow us to use the law school to host forums or educational events around issues like fair use, privacy and ethics, maybe even a Continuing Legal Education Seminar.

I would like to give strong thanks to other founding board members who spent serious time and effort drafting our charter, our mission statement, and navigating the politics of the Student Bar Association (SBA).
Anne Marie Marra 2L
Jessica Creager 2L
Shane Robinson 3L

Our Official Mission Statement:

Seattle University Law Students for Free Culture aim to place the tools of creation, distribution, communication and collaboration, teaching and learning into the hands of everyone through the democratizing power of digital technology and the Internet.

In promoting a culture of participation, accompanied with such technology, a new paradigm of creation is possible, where anyone can succeed on their merit.

Our goals are to:

• seek a balance of intellectual property rights, where other rights of the individual and social policy are not encroached by trends to over-expand intellectual property rights.

• bring attention to how the digital industry ironically clings to obsolete modes of distribution through bad legislation, and call out repressive legislation that stifles innovation.

• oppose monitoring technology that prevents users from exercising dominion and control over their privately owned hardware, and their own intellectual property.

• seize opportunities presented by the Internet and digital technology before such opportunities become irretrievable.

The future is in our hands; we choose to promote a technological and cultural movement to defend the digital commons.

Free Speech v. Copyright, Michael Savage v. CAIR

Nationally syndicated conservative radio host Michael Savage filed a lawsuit against CAIR, the Counsel on American-Islamic Relations. The lawsuit claims that the Muslim group has misused copyright material from his show for fund raising and propaganda. This claim is a blatant abuse of the copyright act to stop criticism that the First Amendment protects through Fair Use.

CAIR is using clips from Savage's radio show to illustrate what they call "bigoted statements."
A remix of some of those statements can be found on CAIR's Website at:
http://www.cair.com/audio/savage_102907.asp. This link was included in an action alert from November 16th asking CAIR's constituents to contact AT&T to pull advertising from Savages radio program.

It is clear that these clips are copyrighted by Savage, but the real legal question here relates to CAIR's possible Fair Use defense. Fair use is an embodiment of the First Amendment in the copyright act.

Fair Use under17 U.S.C. § 107 of the copyright act is a four factor balancing test that includes:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

In this case many of the factors are going to weigh in favor of CAIR.

Factor #1 Purpose and charter of use

For factor one CAIR is a nonprofit 501(c)3 that is not trying to directly profit from Savage's work. CAIR is using the clips as part of its education to constituents about Savages views and encouraging constituents to take action. CAIR may gain more members or donation from members based on Savages comments but this is not the type of use that should be considered as commercial because they are gaining only from criticizing Savage.

Criticism and Commentary are explicitly permitted under copyright law. "one office of the fair use defense is to facilitate criticism of copyrighted works by enabling the critic to quote enough of the criticized work to make his criticisms intelligible. Copyright should not be a means by which criticism is stifled with the backing of the courts. " Chicago Bd. of Educ. v. Substance, Inc. 354 F.3d 624, 628 (2003)

This is a nonprofit educational criticism. Factor one is in CAIR's favor.

Factor #2 Nature of the copyrighted work

This factor distinguishes types of material such as "informational" and "functional" works from "entertainment" works giving stronger protection to creative works. The courts often give less protection to news reports or television broadcast of current events. Savages radio talk show does cover current events and news related items, and the audio clips used by CAIR are directly relaveant to current events. Although it could be argued that Savage's radio broadcast is mere entertainment with no news value, Savages own bio on his professional website describes Savage's show as "brash commentary and unapologetic solution" to current political issues.

Factor two weighs in favor of less copyright protection due to the informational and functional nature of the clips used.

Factor #3 The amount and substantiality of the portion used.

This factor focus on the amount of a copyrighted work that is used relative to the entire copyrighted work. From both a quantitative and qualitative standpoint CAIR has only used a minimal portion of Savages radio show. The audio clip on CAIR's website is less than 5 minutes in length. Savage's radio program is on for a few hours every day with a total length of several hundred hours. Quantitatively the clip used is a very small portion of the over all work.

Additionally Savage himself has repeatedly asserted that the clip was taken out of context and was not representative of his general views on the show. Copyright protection should only be extended to a small portion of a work if it is the heart of the work. Here Savage's own claim is that the clip is not the heart of his work.

Factor three weighs strongly in favor of CAIR and Fair Use.

Factor #4 The effect of the use upon the potential market for or value of the copyrighted work.

The final factor takes into account the financial effect on the market value of the copyrighted work. For this factor, it is important to note that the fact that the substance of the criticism may have lead to financial harm to Savage due to the withdrawal of advertisers is irrelevant. In Campbell v. Acuff-Rose Music, "when a lethal parody, like a scathing theater
review, kills demand for the original, it does not produce a harm cognizable under the
Copyright Act. Because 'parody may quite legitimately aim at garroting the original,
destroying it commercially as well as artistically,'..." CAIR was specifically using the audio clip in conjunction with an action campaign designed to pressure advertisers to boycott Savage's program. Paragraph 68 of Savage's complaint refer to harm but only the type of harm that critic generates.

In the complaint Savage does claim finical harm based on CAIR's possible use of the clips to raise funds, paragraphs 8, 13 and 22, for CAIR. The fund raising claim does not change the underlining analysis. One is alowed to make money off of Fair Use, in Campbell 2 Live Crew was a commercial entity using a portion of Roy Orbison's song "Oh, Pretty Woman"for primarily commercial purposes and this did not preclude a Fair Use defense. If a for profit rap group can sell a derivative infringing copyrighted work for commercial purpose, a non-profit 501(c)3 that is not even selling the audio clips surely has a stronger defense of Fair Use when viewed in light of the strong critique CAIR is making.

This fourth factor in light of the critical nature of the use weighs in favor of CAIR and the possible fund raising activities related to CAIR's use of the clips does not prevent a Fair Use finding.

In Summary all four factors are in favor of CAIR's Fair Use defense of a copyright infringement claim by Savage. The nature of the use was for education, news, and critique. The type of work was current event related media critique. The amount of the copyrighted work was less then 5 minutes of several hundred hours of programing and not the heart of Savage's radio program. The financial harm was purely related to the critical nature of the use. A finding for the Fair Use defense is appropriate in this case.

The First Amendment's power to protect critical speech should not be limited by spurious copyright claims designed to quell unwanted speech.

Press Coverage:
Newsmax
Michael Savage's website with a copy of the complaint

Credit: This Fair Use analysis has been heavily influenced by Matt Zimmerman's letter to ABC concerning the take down of Spocko's clips criticizing KSFO-AM on behalf of EFF.
Link to Spocko ABC Fair Use letter.

One Laptop Per Child Sued, by Lagos Analysis Corporation, for Patent Infringement

One Laptop Per Child (OLPC) Association has been sued by a company based in Massachusetts: Lagos Analysis Corp. Lagos claims that OLPC reversed engineered its Shift2 keyboard driver source codes.

This seems like a terrible patent to me. Using the shift key to change characters has been around for a long time. Using a shift key for changing language setting and add marks for different languages appears at first glance as obvious and not novel. I look forward to seeing the actual complaint filed and the patent in question.

Press Coverage:

Virtualization (warning annoying popup)

TechWhack

Disclaimer: I bought a OLPC though the Give one Get one program. It is still in transit, I look forward to reviewing it soon. I strongly support the project philosophically.