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Thursday, December 13, 2007

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.


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

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Tuesday, December 04, 2007

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:
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.

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Monday, October 22, 2007

User Generated Content Principle, Foster Control, Encourage Censorship, Thwart Creativity

This week CBS, Disney and Viacom among other(who I call media middlemen) drafted and published "Principles for User Generated Content Services." They want to require "Identification Technology" be used to limit your rights on User Generated Content sites (UGC's.) Identification Technology is notoriously bad if not entirely unable to identifying Fair Use.

Beyond the obvious fair use problems which are explained in more detail by Kevin Donovan at Student for Free Culture. I am also bothered that the principles request that UGC's to for keeping record on their users and turning them over to Media Middlemen if a take down occurs or if content is filtered by . Users privacy rights should be protected at least until there is a court order. UGC's should be protecting users from baseless litigation and threating settlement letter by anonymizing user specific data like IP's not handing it over to sue happy companies with lawyers that make predatory lenders look like your friend.

Here is the section that violates privacy:

"10. Consistent with applicable laws, including those directed to user privacy, UGC Services should retain for at least 60 days: (a) information related to user uploads of audio and video content to their services, including Internet Protocol addresses and time and date information for uploaded content; and (b) user-uploaded content that has been on their services but has been subsequently removed following a notice of infringement. UGC Services should provide that information and content to Copyright Owners as required by any valid process and consistent with applicable law."

UGCs should refuse to use Identification Technology until it effectively identifies Fair Use 99.9% of the time. Other wise identification technology will just be a censorship tool that prevents us, real users from exercising our first amendment rights.

A full copy of the principles is available at:

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Saturday, September 15, 2007

Miro, an open source video player, needs your help

video player

Freedom for IP strongly supports Miro. Miro is an open source video player that enables you to save content and exercise your Fair Use rights. Miro runs on Windows, Mac an Linux.

Miro Needs Help (from you!)

September 13th, 2007 — Nicholas Reville

PCF, which makes Miro, is a non-profit organization. That means no one can own us and we don’t take for-profit investment. That also means that we rely on donations to fund everything we do. We’re working towards Miro 1.0 and we are making big improvements to the Miro Guide, but we’re running very low on funds right now.

Read more at GetMiro.com:


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Thursday, September 13, 2007


"Consumers should not be able to listen to any music or enjoy any movie anywhere without our approval," said Sherman.

In addition to coordination of anti-piracy efforts, a key benefit of the merger will also be reduced costs.

"We no longer have to have both the movie and music industries buying up senators and congressmen to get restrictive copyright laws passed," Glickman explained. "Now the representatives will be getting one sack of money from one organization. The cost savings to us will be tremendous."

The first such law that the organization will persue will be the passing of the so-called 0WNAGE Act which specifies that copyrights can now only belong to corporations and that all copyrights, including expired ones, will be reinstated and non-expiring.

Read more at MAFIAA http://mafiaa.org/press_room/

I wanted to post this before commenting on the MPAA's recent comment on the Pirate Party.

atrtibution to John T. Haller

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Thursday, July 19, 2007

Harry Potter,, Pirate Bay and Free Speach

Harry Potter and the Deathly Hallows, the last book in the Harry Potter Series, has been downloadable on The Pirate Bay since at least Monday. Today, Scholastic the U.S. publisher of the Harry Potter books, is sendng takedown notices to sites that have reported this news requesting that they take down the stories for infringement on IP rights of the author.

There is little to no legal foundation for Scholastics take down requests. The release of the Potter book on a file sharing site is very large news that should be protected speech.

Not only is this a bad legal tactic it is also an example of how out of date publishers are with the modern technology literate generation. Authors and Publishers need to start watching and listing to the current generation and stop threating them with baseless legal claims.

The book is on Pirate bay, SO WHAT:
Does this mean no one will buy the book... NO, in fact the publicity around the leek may create more interest in the book. I predict that it will have record sales that are not touched by the release on Pirate bay.

Does this mean that people who were going to buy the book will choose not to buy it? NO many people will download it and still buy the book. Fans want to support authors! Having the book online for free does not stop people from buying official copies of good books.

In fact putting a version of ones work up online for free is probably the best thing you can do to help spread publicity about your work. It opens up your work to people who might not have given it a try if they had to buy it originally. This allows for amazing viral marketing of authors.

Link to an example of the take down letter at Tech Crunch

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Wednesday, July 11, 2007

Fair Use Day, Use your rights!

Take a moment to use your fair use rights. Create a parody, critic a work, use a small potion of a work for educational purposes. Take time to learn about your rights.

It is important the people are aware of what they can legally do with regards to copyrighted material,” said Pirate Party US spokesman Andrew Norton. “Very often people believe that a use of copyrighted material that would normally fall into fair use is an infringement of copyright. It is a belief that copyright holders seek to enforce, either through frivolous litigation, intimidation or legal and political maneuvering to legally restrict what can be considered fair use. This is especially true when it comes to critical reviews, or parodies.

Full press release at the pirate party website.

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