And In Other News...

Question of the Month:

Can food from cloned animals be called organic?

Many clone-opposing readers of the rule are quick to note, for example, its clear statement that genetically engineered organisms cannot be organic. Surely, these opponents conclude, no animal is more engineered than a clone, which is conceived in a laboratory dish and has just one biological parent.

But the biotechnology companies that make cloned farm animals, such as Cyagra of Elizabethtown, Pa., and ViaGen of Austin, have for years been careful to distinguish between clones -- which are genetic replicas of other animals -- and genetically engineered animals, which have had genes added or subtracted to change specific traits.

This debate should only get more interesting as time goes on. Funny enough, the effort to define what a cloned cow might be a little like the problems copyright law is having with the Internet: what the hell do these old theories mean now?

Google Announces Video Plans

Google announced that it will keep both its video service and YouTube. While Google Video will focus on "search for the world's online video content, irrespective of where it may be hosted," YouTube will continue to be run as a video hosting site. Techdirt calls this an "elegant solution" because it focuses on the strengths of each site, which is far better than Google milking YouTube for all it's worth. However, Google should watch out for SFX v. Davis, the case in Texas that has made linking a crime, because the judge's reasoning there could pose problems for Google Video's new focus.

Fox Subpoenas YouTube

It appears that FOX has served YouTube with a subpoena, demanding the identity of a user who has uploaded full-length episodes of the "Simpsons" and yet-to-be aired episodes of "24." No word yet as to whether YouTube will comply. Though there is no way to justify posting something online before its release date, this really is more of an internal problem for Fox than something YouTube should be confronted with. Who has access to unaired episodes of "24" except Fox employees? If YouTube gives in and unmasks the user in question (ECOtotal is the culprits name), then plenty of other copyright owners will demand the same for increasingly less worthy reasons.

According to reports, the subpoena was

Filed on the basis of the Digital Millennium Copyright Act, the subpoena includes testimony of Fox Entertainment Group vp Jane Sunderland suggesting Fox has been unable to determine the users' identities on its own. The uploaded material could cause Fox "irreparable harm," Sunderland said, but it was not immediately clear if the episodes in question still were posted on the site or had been removed.

Under DMCA 512(h), which covers subpoenas to identify infringers, Fox doesn't even have to go to a judge to get a subpoena:

(1) Request.— A copyright owner or a person authorized to act on the owner’s behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection.

One would think that a judge should be the only one making the decision whether an ISP must release a user's personal information, but the DMCA says otherwise. So long as Fox (1) writes a takedown notice, (2) submits its own subpoena for the clerk to approve, and (3) declares the subpoena is needed to protect its rights, then the clerk shall "expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider." This sounds sketchy (a copyright owner writing it's own subpoena!), but RIAA v. Verizon, 359 US App DC 85 [DC Cir 2003] said that 512(h) can be used against entities such as YouTube and other service providers that host content on their servers as described in DMCA 512(c).

Of course, YouTube can and should challenge the subpoena if it feels it's bad business to be revealing the identities of its users. For Fox to prevail in such a challenge, it must claim "irreparable harm" as one element of getting the court to force YouTube to reveal the user. It's worth asking about what the irreparable harm is of a YouTube video that's no longer on YouTube. If YouTube is able to takedown the infringing videos, then what is the irreparable harm to Fox of not knowing the identity of the user? Though there is a presumption of irreparable harm in copyright actions, it can be argued that in cases like these the presumption should fail since the alleged harm has been dealt with.

Odd Terms of Service

Haven't seen this before. In the Terms of Service governing email submissions to a popular site, it says that:

You must include a signed copy (with your signature and the signature of your parent/ legal guardian) of this Submission Rules and Requirements agreement (the “Agreement”) with any Submission.

Not only do I have to check the "I accept" box, but have to waste a stamp too! Satire, lack of effort, or a case of forcing people to accept the most extreme terms possible?

Unbound and Book Search

The Times Online recaps Google's Unbound conference held earlier this week, recounts the Book Search lawsuit, and ponders the future of the book.

IFPI Wants Google's "China Policy" Implemented Globally to Cover Copyright

The International Federation of the Phonographic Industry (IFPI), a global music trade group akin to the RIAA, released its Digital Music Report for 2007 this past Wednesday. It makes the usual points: digital music is a growing business, the music industry is making headway in the War on Piracy, record companies are working to give consumers what they want (ha!), and next year will be better for consumers, artists, and (most importantly) the labels' bottom lines.

However, the report is also an interesting confession of where the IFPI's strategery in the War on Piracy will take them. The summary of the report, fittingly titled "A Brave New World," says:

...actions against individual uploaders are onerous and expensive and we shouldn’t have to be taking them. That job should not be ours – it should be done by the gatekeepers of the web, the Internet Service Providers (ISPs), who unquestionably have the technical means to deal with copyright infringement, if only they would take responsibility for doing so.

At one time you were considered a new media philistine if you wanted to regulate the internet. But then Google promised the Chinese government that censorship was possible. Then Google blacklisted BMW in the internet world for anti-social behavior. It seems policing is acceptable for all sorts of things but not intellectual property!

With cooperation from ISPs, we could make huge strides in tackling content piracy globally. Disconnection of service for serious infringers should become the speeding fine or the parking ticket of ISP networks. We need government help to make it clear that ISPs must face up to their responsibilities and cut off copyright infringing users. To be fair, at the end of 2006 the UK government signalled that it may be prepared to play a facilitating role in this and set a deadline of December 2007 for tangible progress.

First, I am not the only one to notice that selling Google's China policy to other more open countries is a tough proposition. To be fair, the IFPI is a London based entity and England does not have the same kind of extensive free speech rights as exist here in the US, so perhaps the jump from England's Internet policy to China's policy isn't as jarring as it sounds here. But however you want to think about it, saying that what Google does in China is a good thing that should be more widely adopted just sounds wrong.

But there are two other nuggets in there worth mentioning: that the DMCA is too "onerous" for the IFPI (and related organizations) and that cutting off Internet access to infringers is a sensible policy.

I would disagree that the DMCA is too "onerous" because, for all it's faults, it at least tries to strike a balance between users and copyright owners. This balance is certainly skewed in the copyright owner's favor, but it does allow users a limited degree of mobility within the law (eg. counter-notifications and defined safe harbors that allow for websites to host certain online activities). If the IFPI had it's way and the DMCA were replaced, what would they want? Based on their 2005 suggested Code of Conduct for ISPs, they would want ISPs to:

...enforce terms of service that prohibit a subscriber from operating a server, or from consuming excessive amounts of bandwidth where such consumption is a good indicator of infringing activities.

Using too much bandwidth (tell me the difference to an ISP between uploading/watching a video on YouTube and downloading some hot new song and you get a prize) would mean no more Internet access for you. If I do A a lot, and all people who commit crime B also do A a lot, then I must also be committing crime B, is just flawed logic. Ars suggests that perhaps the IFPI would like more of a streamlined process, like the YouTube take-down process that requires a letter to YouTube and (poof!) the video is down. Problem is that an automatic revocation of Internet service, without any sense of due process, is exceedingly harsh. The YouTube model applied to ISPs in this case would be like ordering house arrest for shoplifting. After all, if you can't be trusted not to pocket a pack of gum from the bodega, you can't be trusted to go outside. Right?

Rescuecom Appeal

Looks like Rescuecom, which had its trademark suit against Google for selling ads to competitors that pop up when users search for Rescuecom dismissed as not being a trademark violation, is appealing to the Second Circuit.

DRM and Scarcity

Ars posts an article about DRM, arguing that Big Content's pursuit of it has nothing to do with piracy:

The basic point is that access control technologies are becoming more and more refined. To create new, desirable product markets (e.g., movies for portable digital devices), the studios have turned to DRM (and the law) to create the scarcity (illegality of ripping DVDs) needed to both create the need for it and sustain it. Rather than admit that this is what they're doing, they trot out bogus studies claiming that this is all caused by piracy. It's the classic nannying scheme: "Because some of you can't be trusted, everyone has to be treated this way." But everybody knows that this nanny is in it for her own interests.

This is a good way of painting the economic argument against overly restrictive DRM and calling out the studios for their dubious arguments.

The article also links to a BusinessWeek article on Apple and Hollywood, where an anonymous studio executive was quoted as saying "[Apple's] user rules just scare the heck out of us," in regards to the fact that iPod users are allowed to share movies downloaded from iTunes on 3 other iPods and in the context of the recent announcement of Apple's new Apple TV.

Which gets us to YouTube and the NYT's most recent article on the site, discussing it's uneasy relationship with Big Content.  The NYT uses Eminem's movie 8 Mile as its focus and the problems Universal Music has faced with parts of it showing up on YouTube:

So in an odd twist, Eminem’s songs from “8 Mile” are cleared for use on YouTube, while much of the accompanying video is not. In what could be an indication of the kinds of deals the studios might strike, Universal Music earns the higher of two amounts when its songs are used in a video: a flat fee per clip or a percentage of advertising revenue.“We don’t want to kill this,” said Larry Kenswil, a Universal Music executive. “We see this as a new source of revenue for us.”

See, it's all about squeezing every ounce of new revenue out of the market.  It's not that Big Content shouldn't be able to police piracy, but it shouldn't be attacking fair use rights under the pretext of fighting piracy in an effort to simply broaden the kind of revenue it can collect.  Certainly, the Internet has created new ways for Big Content to sell its products, but the Internet isn't so new/different and threatening so as to justify granting them more control than they've ever had before.