O'Reilly Digital Media

The Proud Family

“Tonight on Touched by an Angel, the miserly Chairman of the FCC learns a lesson about the heart when he has a chance meeting with a poor widow, aged 95, living on nothing but dividends from her AOL TimeWarner stock.”

Disney Corp’s recent propaganda in their show The Proud Family is a breathtaking bit of chutzpa.

According to a NewsForge story on the show:

A post forwarded to the Linux-Elitists mailing list from one of the show’s viewers gave the rest of the details about the decidedly pro-SSSCA plot:

1. Girl working at her antiquated computer her dad gave her in
her
room.

2. Mystery guy (cool hip hop looking dude in black) shows up at
her
window and supplies her with an up to date computer, takes her
into
“the Matrix and shows her a web area called Free Jackster where
she
can get all the music she could ever want FOR FREE,

3. The girl asks if this is illegal and mystery guy explains it
is
our birthright to have free music, creativity should not have a
price

4. Girl gets addicted to collecting free music, her obsession
leads
to telling all her friends. soon the site is getting millions of
hits
from kids to grandmothers.

5. Next scene at the The Wizard Record Label board room where
“Sir
Paid Alot” enters to complain his royalty check was only five
cents.
This alerts The Wizard (head of the label) that there is a retail
problem he needs to look into.

6. Teen Girl’s house is surrounded that night by police and
press
and she is arrested for illegal downloads, gets a warning,. The
news
makes it clear that millions of people can’t be stopped, Parents
take
computer away from girl and explain why free downloads is
STEALING — kind of an abirdged explanation of how copyrights work.

7. Next scene, Asian Guy’s retail record store is empty, guy is
crying on the floor. Teen Girl who happens to work at the store
show
up to work, Asian guy fires her for supporting all the free
downloads

8. Next scene charts showing record sales are down down down to
nothing because people get the music for free

9. Mystery guy shows up at teen girl’s window again to try and
convince her to go back to downloading but she says NO

10. Guy: “You still downloading?” Teen Girl: “Downloading is
stealin’.” Mr. Guy from Free Jackster: “I know you are afraid I am
trying to show you a world without rules.” Teen girl says, “No, its
wrong.”

This show is so deeply wrong headed that it’s hard to say anything unobvious, but since Disney is a gargantuan megaCorp, these things obviously needs saying.

• The company aims to use its powers as a media giant to sell viewpoints serving its commercial interests. This is analogous to a television drama doing a storyline about damage caused by restrictions on cross-ownership of TV stations.
• The show buries the publisher’s viewpoint within highminded moralizing. Like socialist realism, it merges editorial and propaganda.
  
  Was this image of Papa Joe made to be a painting, or made to be an ad? Neither, and both.
• The morality of filesharing is a political issue. Where the show presents it as a done deal that filesharing is stealing, in reality it’s an open question being decided, right now, in the legislatures. This is a partisan viewpoint disguised as standard wisdom.
• The politics of intellectual property are about the tradeoff of public and private interests. In particular they are about tradeoffs between the commercial interests of the large publishing houses and freedom of speech. Behemoth-scale publishers like Disney are asking the public for indulgences, and just in case the adult public doesn’t grant the indulgence, one such publisher is going after the children.
• The show is for children. Intellectual property is a subtle concept even for adults. Children simply don’t have the skills to defend themselves from this manipulation.
• The show is for children. Clearly the publishers don’t believe in demilitarized zones.

Meta

Early versions of this writing contained links to the following images:

1. Logo for “The Disney Club”, used satirically in this context, from the homepage for The Disney Club.
2. Mickey and Minnie Mouse as the King and Queen of Hearts drawn by Walt Disney, from the website of Museum of Science and Industry, Chicago.
3. Socialist Realist painting of Joe Stalin from site about Socialist Realism at the Virtual Museum of Political Art.

In looking for legal support for an ability to incorporate images from the web, I found pretty much nothing good enough to protect O’Reilly’s interest in not spending money in court. With regard to using the Disney Club image to give this piece sarcastic bite, Hal Finney said:

Disney is a common target for parody as its characters are so well known
and identified with a particular corporate style. Their lawyers are
expert at suppressing attempts at parody and they will apparently spare no
expense in fighting all cases of infringement. So I think in practice you
will not be successful in using the Disney logo for your satire, unless
you have such a low profile that you never come to Disney’s attention.

With regard to whether I could use deep links to images at their home site, i.e. without actually copying them, Wendy Seltzer said:

>Is a deep link to an image a copyright violation?

It’s still being tested. Further, it’s not clear whether courts would
treat deep links and inline links differently.

In Kelly v. Arriba, now on appeal to the Ninth Circuit, the district court
held that Arriba’s image search engine (now ditto.com), which made local
thumbnail copies of images and used inline links to the full images out of
context, was engaged in fair use.

On deep textual links to the inside pages of multi-page websites, most
courts have not found copyright violation. (e.g. Ticketmaster v. Tickets.com)

Needless to say, this is not specific legal advice.

The remaining question was whether O’Reilly was covered by fair use. In answer to the question, “What is Fair Use”, the Copyright Crash Course said:

We would all appreciate a clear, crisp answer to that one, but far from clear and crisp, fair use is better described as a shadowy territory whose boundaries are disputed, more so now that it includes cyberspace than ever before. In a way, it’s like a no-man’s land. Enter at your own risk.

Between weakening of fair use, legal murkiness with regard to deep linking, outright giveaways to publishers like the endless extensions of copyright terms, and the cost of defending against a suit by Disney (which is nothing if not armored with lawyers), I didn’t find enough to use any of these images. Why did I go ahead and use the quotes from the Copyright Crash Course, among others? Because the whole thing is too much of a mess to know what to do. Given the aggressiveness of copyright law, I don’t have the slightest idea whether I’m breaking the law right now.

Commercialization of speech threatens the ability to open your mouth at all.

Disnification

When political speech conflicts with commercial interests, the relevant law is civil. In civil cases political protections are weak. So there is a effective method of gaming the system: political acts that can pass for commercial acts are protected by the cost of lawyers in civil court, where the accused have fewer rights than in criminal court.

In this situation Disney Corp. is a political actor, speaking under the special rights enjoyed by commercial actors. For commercial actors, having more money is a perfectly fine amplifier of viewpoints. For example, there’s nothing wrong with Proctor and Gamble having more advertising than Joe’s Bar. But with political actors, allowing concentrations of money to amplify viewpoints is not a good thing, because the political design of the U.S. is intended to flatten hierarchy in order to allow the many to rule. When political actors like Disney pretend to be commercial actors, republican government is being gamed.

By design, intellectual property law is a set of restrictions on speech for the purpose of enabling commerce. It’s a deliberate tradeoff between the agoric networks of the commercial world and the hive structure of a nation. Copyright grants proprietary interests a hold on certain statements. So it should come as no surprise that copyright can be used as ownership of, among other kinds of statements, political statements.

Related link: http://www.wired.com/wired/archive/9.10/linux.html

A recent Wired article suggests that Linux will have a hard time winning a war for the desktop, and should instead focus it’s attention on becoming the dominant server operating system for enterprise computing.

The Recording Industry Association of America (RIAA) is worried that the
new href="http://leahy.senate.gov/press/200110/100401a.html"
target="usaact">Uniting and Strengthening America Act (USA Act) — a sweeping anti-terrorist law — would criminalize its plans
for fighting music pirates.

The RIAA has been trying to find a way to deploy virus-like software that would seek out
infringing files on your home computer and delete them. Under the USA Act,
‘collateral damage’ inflicted by this software (non-infringing files deleted
by accident) would constitute an act of terrorism.

The RIAA seeks to protect its members from civil liability as
well as criminal prosecution, fearing civil actions arising from
violations of
section 815 of the href=" target="usa">USA Act’s “Deterrence and Prevention of Cyberterrorism” section.

Consequently, the RIAA sought last week to have an amendment added to the
bill that would eliminate a copyright holder’s liability in the event that its software
deleted crucial files — say, your business plan, medical records,
novel-in-progress, or homework — from your machine.

“It could lead to some really bad outcomes, like a program
purposefully intended to delete MP3s that misfunctions and erases
everything on a disk — ooops,” Marc Rotenberg, director of the
Electronic Privacy Information Center, explained in a target="wired">Wired article by Declan McCullagh. “Think a repo
man smashing
windows and knocking down doors to pull out the 27-inch color TV when
you’ve missed a couple of payments.”

So you could come home one day and discover that half the files on your
hard-drive had been corrupted, and it’s not your fault, but it’s not their fault and you can’t sue for damages.

Here an excerpt from the Wired Article:

The RIAA’s interest in the USA Act, an anti-terrorism
bill that the Senate and the House approved last week, grew out of an
obscure part of it called section 815. Called the “Deterrence and
Prevention of Cyberterrorism” section, it says that anyone who breaks
into computers and causes damage “aggregating at least $5,000 in
value” in a one-year period would be committing a crime.

If the current version of the USA Act becomes law, the
RIAA believes, it could outlaw attempts by copyright holders to break
into and disable pirate FTP or websites or peer-to-peer networks.
Because the bill covers aggregate damage, it could bar anti-piracy
efforts that cause little harm to individual users, but meet the
$5,000 threshold when combined.

We might try and block somebody,” Glazier said. “If we
know someone is operating a server, a pirated music facility, we could
try to take measures to try and prevent them from uploading or
transmitting pirated documents.

The RIAA believes that this kind of technological
“self-help” against online pirates, if done carefully, is legal under
current federal law. But the RIAA is worried about the USA Act banning
that practice — and neither the Senate nor the House versions of that
bill include the RIAA’s suggested changes.

Although, according to
McCullagh, the RIAA claims its members are
already protected by href="http://www4.law.cornell.edu/uscode/18/1030.html"
target="uscode">Section 1030 of the U.S. Criminal Code, as a precautionary measure, the organization would
also like one long very explicit sentence on the books stating that:

“No action may be brought under this subsection arising out of any
impairment of the availability of data, a program, a system or
information, resulting from measures taken by an owner of copyright in
a work of authorship, or any person authorized by such owner to act on
its behalf, that are reasonably intended to impede or prevent the
unauthorized transmission of such work by wire or electronic
communication of such transmission would infringe the rights of the
copyright owner.”

Luckily, in the end, our lawmakers did not grant any such Carte Blanche to overzealous copyright holders.

“Their lobbyists weren’t able to convince lawmakers that such an amendment had anything to do with fighting terrorism, nor that granting vigilante powers to the gentle souls of the recording industry would further the ends of peace, justice and the American Way,” writes BoingBoing’s Cory Doctorow.
“Is there any
other industry in the world that fears and hates its customers more
than the music industry? Maybe the insurance industry, I guess. Maybe.”

For the time being,

href="http://www.wartimeliberty.com/article.pl?sid=01/10/14/1756248"
target="draft">drafts of such legislation have gone back into the
RIAA’s cauldron
until the next opportunity to include them within a Bill presents itself.

Resources

• href="http://www.wired.com/news/conflict/0,2100,47552,00.html"
  target="wired">RIAA Wants to Hack Your PC
  
  By Declan McCullagh    
Wired News
     (October 15,
  2001)
  (http://www.wired.com/news/conflict/0,2100,47552,00.html)

• href="http://www.wartimeliberty.com/article.pl?sid=01/10/14/1756248"
  target="amend">RIAA drafted amendment
  
  Declan McCullagh’s Website   (October
  12,
  2001)
  (http://www.wartimeliberty.com/article.pl?sid=01/10/14/1756248)

• target="18">Title 18, United States Criminal Code
  
  Chapter 47: Fraud and False Statements
     
  Sec. 1030. Fraud and related activity in connection with computers
     (January 1,
  2001)
  
  (http://www4.law.cornell.edu/uscode/18/1030.html)

• target="boing">BoingBoing: A Directory of Wonderful Things
  
  (http://www.boingboing.net)

• Electronic Privacy
  Information Center
  
  (http://www.epic.org/)

• target="usa">Summary of Uniting and Strengthening America Act (USA Act)
  
  (October 14,
  2001)
  (http://leahy.senate.gov/press/200110/100401a.html)

• RIAA
  
  Recording Industry Association of America
  
  (http://www.riaa.org/)

• target="glazier">Mitch Glazier Joins The RIAA as Sr VP of Government
  Relations and Legislative Counsel
  
  RIAA Press Release
     (February 10,
  2000)
  (http://www.riaa.org/PR_Story.cfm?id=111)

What do you think?

Related link: http://dailynews.yahoo.com/h/ap/20011010/tc/napster_lawsuit_1.html

In what could be Napster’s only escape from the RIAA’s lawsuit, Napster brings an antitrust claim to court, citing an anticompetitive structure behind MusicNet.

MusicNet may have gone a little far in it’s efforts to control the online music scene, by putting a clause in the contract they have with Napster containing a provision that unfairly gives MusicNet the right to terminate the contract if Napster sought an agreement with other labels or services.

This could be the sliver of hope Napster needed. According to the article, if the recording industry as a whole is found to have misused its copyright material, it might not be able to successfully pursue an infringement claim on those works.

A fascinating dissent by Supreme Court Justice Stevens to the majority opinion in this case. I have edited out his detailed citations, which are really just an arcane print-oriented form of hyperlinks, for the sake of readability.

    Macaulay wrote that copyright is “a tax on readers for the purpose of giving a bounty to writers.” That tax restricts the dissemination of writings, but only insofar as necessary to encourage their production, the bounty’s basic objective. In other words, “[t]he primary purpose of copyright is not to reward the author, but is rather to secure ‘the general benefits derived by the public from the labors of authors.’ The majority’s decision today unnecessarily subverts this fundamental goal of copyright law in favor of a narrow focus on “authorial rights.” Although the desire to protect such rights is certainly a laudable sentiment,copyright law demands that “private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.”

    The majority discounts the effect its decision will have on the availability of comprehensive digital databases, but I am not as confident. As petitioners’ amici have persuasively argued, the difficulties of locating individual freelance authors and the potential of exposure to statutory damages may well have the effect of forcing electronic archives to purge freelance pieces from their databases. “The omission of these materials from electronic collections, for any reason on a large scale or even an occasional basis, undermines the principal benefits that electronic archives offer historians–efficiency, accuracy and comprehensiveness.”

    Moreover, it is far from clear that my position even deprives authors of much of anything (with the exception of perhaps the retrospective statutory damages that may well result from their victory today). Imagine, for example, that one of the contributions at issue in this case were a copyrighted version of John Keats’ Ode on a Grecian Urn, published on page 29 of our hypothetical October 31, 2000, New York Times. Even under my reading of §201(c), Keats retains valuable copyright protection. No matter how well received his ode might be, it is unlikely–although admittedly possible–that it could be marketed as a stand-alone work of art. The ode, however, would be an obvious candidate for inclusion in an anthology of works by romantic poets, in a collection of poems by the same author, or even in “a 400-page novel quoting a [poem] in passing,” ante, at 15. The author’s copyright would protect his right to compensation for any such use. Moreover, the value of the ode surely would be enhanced, not decreased, by the accessibility and readership of the October 31, 2000, edition of the New York Times. The ready availability of that edition, both at the time of its first publication and subsequently in libraries and electronic databases, would be a benefit, not an injury, to most authors. Keats would benefit from the poem’s continued availability to database users, by his identification as the author of the piece, and by the database’s indication of the fact that the poem first appeared in a prestigious periodical on a certain date. He would not care one whit whether the database indicated the formatting context of the page on which the poem appeared. What is overwhelmingly clear is that maximizing the readership of the ode would enhance the value of his remaining copyright uses.

    Nor is it clear that Keats will gain any prospective benefits from a victory in this case.

The good news is that one member of the Supreme Court is aware that copyright is more than a hand job for the well-connected. The bad news is that he’s in a 7-2 minority.

Related link: http://news.cnet.com/news/0-1005-201-7320279-0.html?tag=tp_pr

The newest idea in copy protection being bounced around the heads of those in the recording industry will place two versions of an album on a single disc: one in standard CD form, modified so that it can’t be transferred to a computer hard drive, and another in Microsoft’s Windows Media Audio digital format.

As much as I think copy-protection only aids the supplier and takes away from the consumer, this is as close to a viable compromise as we’ll see out of this group. Unfortunately this still takes away our right to make copies for our own private use, and makes our MP3 players rather useless. Funny, it seems I just ranted about fair use.

Microsoft gets to play the role of Violet if she had inherited Willie Wonka’s chocolate factory instead of Charlie, as they are basically handed the title of “standard digital format” by this scheme. If consumers can’t create MP3’s from their CD’s, it’ll be hard for the format to retain it’s grip on the market. RealNetworks will continue to hold onto the streaming market, but any dreams of getting past online formats will dissolve with consumer acceptance of copy-protected CD’s.