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This gentleman unwisely posted¬†some photos of himself waving a $20 bills as part of a Craigslist ad, and now believes that copyright law, as well as criminal fraud statutes, will come to his aid in encouraging Gawker to take them down. Gawker doesn’t seem to agree.

What’s interesting here is the gentleman’s confusion between public and private spaces, the conceit that the photos he posted on Craigslist were still “his” to control. Theoretically, Craigslist might have an argument with Gawker, since the Craigslist¬†terms of service state, “You ‚Ķ agree not to reproduce, duplicate or copy Content from the Service without the express written¬†consent of craigslist.” As a practical matter, Gawker is right: “Craigslist is a public place.”

Also interesting are the gentleman’s threats of legal action to respond to what might kindly be called a personal misjudgment. What people think might be done about the problems they have created for themselves has changed, not only with the litigiousness of society in general, but with the litigiousness about bits in particular. Before the RIAA and the MPAA started going after teenagers for music downloading, people like this might never even have heard of copyright law, much less have thought (however mistakenly) that it could protect their reputation. Another thing for which the recording industries can be thanked, I suppose.

And, as Lawrence Lessig explains in today’s New York Times, Congress seems bent on making it even worse. An “orphaned” work is something that is copyrighted but whose copyright owner can’t be found. Such works can’t be reproduced, performed, or otherwise used in violation of copyright law, but it’s also difficult or impossible to obtain permission to use them since the copyright owner has died or disappeared. Because everything written, photographed, or drawn has been copyrighted automatically for the past thirty years, there are vast numbers of orphaned works, creations that are effectively lost to human culture until the copyright term, nearly a century, expires.

To “fix” the orphaned work problem, Congress proposes immunity from copyright infringement charges for those who make a “diligent effort,” defined as “reasonable and appropriate,” to locate the copyright holder. But it assigns to a bureaucracy the problem of fleshing out that standard. As Lessig explains, this will do more to foster bureaucracy than it will do to liberate orphaned works.

Lessig describes several other problems with this legislation. We would note one broader troubling aspect. The law follows a pattern seen in the past, for example with the Deleting Online Predators Act discussed in Blown to Bits. Congress has developed a habit of handing off to the executive branch of government the job of defining vague terms on which the full force of its legislation depends. The definitions are hard to get right, and require discussion and compromise over fine points of language. So Congress, in its hurry to show that its heart is in the right place, comes up with some verbiage that sounds good but is so vague as to vest vast power in unelected officials charged with implementing it. The courts may overturn such laws later, but by that time Congress has proclaimed its accomplishments, and can blame the courts for their activism and heartlessness. Rather than going to the trouble of legislating carefully, elected officials have been able to devote the full measure of their attention to the earmarks and sports videotaping investigations on they prefer to spend their time. Politically, if the members of Congress can malign the courts at the end of the process for what is really their own legislative laziness, so much the better.

If you purchase some software, do you have the right to run that software on your computer? Blizzard Entertainment, maker of the popular multiplayer game World of Warcraft, is asking an Arizona judge to rule that you don’t have that right. As Blizzard would have it, running a program ‚Äì even software you’ve bought and paid for ‚Äì is copyright infringement unless it’s done with explicit permission from the software publisher. This legal theory rests on the claim that when the computer moves program code from disk to memory in order to run the program, the bits are being copied, hence the liability for copyright infringement. This is the same interpretation of ‚Äúcopying‚Äù that raised its head in the early 1990’s. As described in Blown to Bits, it would lead to the conclusion that almost any use of a computer is potential copyright infringement if done without explicit permission from the software publisher.

In the Arizona case, Blizzard is suing MDY, Inc., which makes a program called Glider. Glider is a bot that that automates some of the activities in playing World of Warcraft, such as fighting. Fire up Glider and you have a large unfair advantage in your game playing that lets you skip ahead to advanced levels of play. Blizzard’s attitude towards Glider is much the same as the International Olympic Committee’s attitude toward steroids.

Using Glider or other bots is against the rules in WoW and violates the user license agreement for the client software. Accordingly, one of Blizzard’s claims is that MDY is encouraging players to break the license and should therefore be liable for so-called ‚Äútortious interference‚Äù with contracts.

Contract violation may be all well and good, but Blizzard goes further, and claims that WoW players who use bots or break other game rules are infringing copyright when they run the WoW client program on their computers. These players may have bought the program, but in Blizzard’s theory, they don’t actually own the copy of the program they paid for: they’ve merely licensed it for certain use. Any other use (including breaking the WoW rules) is unauthorized. And so, the theory goes, copying the program from disk to memory is unauthorized copying, hence infringement; and MDY is therefore guilty of secondary infringement.

What difference does it make whether this is contract violation or copyright infringement? Plenty, as readers of Blown to Bits know. The penalty for copyright infringement includes mandatory statutory damages of at least $750 per violation. That is, a judge must award at least this amount if infringement is proved. MDY, which has sold over 100,000 copies of Glider, would be facing statutory damagers of at least $75 million.

MDY’s fortunes aside, the real losers of a judgment in Blizzard’s favor would be all all of us who use sofware.¬† We’d find that any violation of software license conditions would be copyright infringement with the consequence risk of liability for mandatory statutory damages.¬† This would be the case even though nothing is being copied ‚Äì unless you count the copying of the program into memory to run it. For example, it’s against the rules in WoW to use bots, and it’s also against the rules to give your player a name that includes a title: name your WoW character ‚ÄúKing Alfred‚Äù and bingo ‚Äì copyright infringement and a $750 fine.

In March, both Blizzard and MDY filed motions for summary judgment. Let’s hope the judge throws Blizzard’s copyright claim on the legal junkheap. The world of bits and the world of copyright law have an uneasy enough relationship without resurrecting this absurd legal theory.

It’s been a long time since I’ve been at a protest. I went to a few against the Vietnam War in 1969. I’ve observed some protests (hey, I was a dean). I’ve negotiated with protesters and counter-protesters (once managed to keep the pro-Israel and pro-Palestine students respectfully apart at opposite ends of Harvard Yard). I’ve even been protested against. But I’ve never suggested organizing one.

There’s always a first time.

J. K. Rowling will be Harvard’s Commencement speaker on June 5. She’ll get an honorary degree in the morning and be the principal speaker at the afternoon exercises.

So? Everyone loves her, don’t they?

Rowling aggressively protects the Harry Potter books, which is certainly her right. No reason why she has to put out a Creative Commons version (as we will do, once Blown to Bits has been in print for a while).

¬†But she is suing a librarian named Steven Vander Ark to prevent him from publishing a Harry Potter lexicon. Her claim that putting out the lexicon will ‚Äúopen the floodgates for anyone to lift an author’s work and present it as their own‚Äù is absurd. There are countless examples of published indexes and concordances. They do the authors no harm and probably do them good. I could not have read Joyce without my handy Skeleton Key to Finnegan‚Äôs Wake.¬†Ironically, Rowling used to think that Vander Ark‚Äôs site was swell. Probably she‚Äôs now decided to write a lexicon of her own and doesn‚Äôt want the competition.¬†Copyright law is out of balance, as we explain in Blown to Bits. The imbalance often takes the form, as it does in this case, of heavyweights using the law to sit on the little guys. But the analogies apply at all levels. Farhad Manjoo has blogged about the Harry Potter lexicon, pointing out that taking Rowling‚Äôs argument to its logical conclusion would prevent Google from indexing the Web and making advertising money from the index, unless it got explicit permission from each web site.¬†So I‚Äôm in favor of protesting Rowling‚Äôs anticompetitive abuse of copyright law. Unfortunately, your authors can‚Äôt organize the protest, since two of them will be busy in their official roles organizing Commencement itself!¬†

 

 

Yesterday, Microsoft delivered the coup de gr?¢ce to MSN Music DRM. May it rest in peace.

Digital Rights Management (DRM) is the practice of distributing digital content together with control programs that restrict how it can be used. For example, a publisher can distribute music that can played only a designated number of times, or only on designated computers, or that must periodically “phone home” over the Internet for reauthorization and relicensing. Content providers, notably the recording industry, embraced DRM as a way to cope with unauthorized downloading and file sharing.

Blown to Bits argues that DRM schemes are ineffective and anti-competitive and in the long run a bad deal for publishers and customers alike. If you buy music that must contact a license server before it can be played, then the music isn’t really yours ‚Äì if the license server goes away, ‚Äúyour music‚Äù becomes a useless wad of encrypted bits.

That drawback of DRM was driven home yesterday when Microsoft announced that it would be shutting down the license servers for MSN Music, a DRM scheme introduced in 2004 to the fanfare announcement that this would “finally bring digital music to the masses.” Music tracks purchased from the MSN Music store can be played only on computers licensed for that track. You can have at most five computers licensed for a track at once. If you get a sixth computer, you must contact the MSN server to de-authorize one of the five and license the new one. A “new computer” here means not only a new physical machine: if you upgrade your operating system, you need new licenses for all the music tracks.

Microsoft stopped selling new MSN Music in 2006, when it introduced Zune Marketplace. In an email yesterday from the General Manager of MSN Entertainment Services, purchasers of MSN Music tracks learned that the license server will be shutting down on August 31. After then they’ll be stuck: no more licensing new machines ‚Äì replace a computer, or upgrade an operating system after the summer, and their music can’t be transferred to it.

The anti-consumer nature of DRM is becoming increasingly apparent, and publishers are starting to move away from it. And yet, as described in the book, the desire to shore up DRM gave birth to the innovation-hostile anticircumvention provisions of the Digital Millennium Copyright Act, and new DRM-inspired legislative proposals are still very much alive on Capitol Hill. What can consumers do when the content they purchased phones home, but no one answers? Perhaps they should have it phone Congress.