CopyOwner

Culver City is offering public wi-fi access to the Internet with two big caveats: It’s not really the Internet, and to use it you agree to give up your civil rights.

That’s right. First, they offer Internet access, but you must agree to “limited” Internet access. And they don’t mean limited hours of the day, limited locations, or a limited amount of time you can be on. No, when they say “limited,” they mean that they will censor access to parts of the Internet. (”By using this free wireless network you are agreeing and acknowledging you have read and accepted these terms and conditions of use, and this wireless network provides only limited access to the Internet.”) In other words, they do not offer Internet access at all. As the Dynamic Platform Standards Project points out so well, anyone offering access to a “limited Internet” is engaged in false and deceptive advertising because a “limited Internet” is an oxymoron.

Second, in order to gain the right to enjoy this free, public, non-Internet access, no matter what you read in the Bill of Rights (and the First Amendment, in particular) you must agree that the government may abridge your freedom of speech and you further agree that when it does so (as it promises to do), you will not exercise your right to sue for the violation of your First Amendment rights!

I’m not making this up. Here’s the fine print: “Further, [by using it] you are agreeing to waive any claims, including, but not limited to First Amendment claims, that may arise from the City and Agency’s decision to block access to … matter and websites [of its choosing] through this free wireless network ….”

From a legal standpoint, it is the same as if the Culver City public library were offering you free access to newspapers, but was first clipping out the articles it didn’t like and making you agree not to sue for censorship if you wanted to read what was left.

It’s starting to look like 1984. “Freedom” means freedom to give up your inalienable right to life, liberty and the pursuit of happiness if you want to have free access to the government’s Internet - or “EnterNot,” as the Culver City leadership might call it. I’m a big fan of free, public Internet access, but without the Doublespeak.

It is hard to know what to make of HarperCollins’ new initiative to allow book browsing. Bookstores have long permitted customers to browse books on display – a shrink-wrapped book is more likely to be passed over. For online shoppers, services like Amazon.com’s online book-browsing are a terrific complement to reading reviews, but they are useful only after the book has been identified. Search services that allow the user to find books containing certain search terms – Google Book Search – vastly expand the tools available to the public, freeing us from antiquated searches limited to author, title or subject matter.

Given the services available already from aggregators like Amazon.com and Google, why would HarperCollins jump into the fray? Perhaps it’s motivation is pure competition, such as the hope that its online tools will keep shoppers and researchers on its own website, limiting their choices to HarperCollins books. There is nothing wrong with that motivation. It is just foolish. The record companies tried to keep aggregators like Tower Records out of the music downloading market by offering their own branded dot-coms, leaving a whole laundry list of them littering the ‘net graveyard. Movie studios tried similar tactics. These copyright holding companies have a hard time accepting the fact that people don’t shop by the name of the publisher. (When did you ever walk into a bookstore and ask to be directed to the HarperCollins section?) But if it is foolishness, they will learn soon enough.

Of greater concern is whether it is a copyright expansionist move. The story attributes Brian Murray, group president of HarperCollins, with saying that the book industry had lagged the music and film businesses in providing customers with preview snippets. That’s where the red flag pops up for me. Copyright holding companies in both of those industries were quick to try to gain control over the marketing of copies of their works. The Copyright Act makes clear (as does about 100 years of Supreme Court precedent) that the copyright owner’s right to control sales of lawful copies of its works ends as soon as those copies are owned by someone else, like the retailer. But when new technology enabled retailers to provide music samples and movie previews direct to their prospective customers, some record companies and movie studios took the position that retailers needed a license to do so. While they were happy to provide “free” licenses, they came with strings attached. A record company license gave the record company the right to order black-out dates, presumably for when it wanted to favor some different product or sales channel. A movie studio licensed previews on condition that the retailer say nothing negative about the movie, pretty much guaranteeing that the retailer could not give an honest assessment to its customers (and would have to police its “customer reviews” to delete the ones in breach of the license). Could this sordid scenario be part of HarperCollins’ thinking? Does it want to offer its own book-browsing as the first step in trying to force retailers to link to the HarperCollins site where it can cross-market other HarperCollins books to the retailers’ customers and gather valuable consumer data?

“Right now HarperCollins is not interested in becoming a retailer,” said Jane Friedman, the company’s chief executive. “But boy, are we interested in continuing, maintaining and growing as a No. 1 marketer on the Web.”

That’s the rub. Retailers of books published by HarperCollins have an absolute right to sell the copies they own to whomever they choose, at the price they choose and in the manner they choose, even over the objection of HarperCollins. But to do so, they must also enjoy the right to market them as they choose. Online book-browsing is a proven way of marketing. If HarperCollins is truly not interested in becoming a retailer, let’s hope it is also not interested in suppressing the retailers’ choice of marketing tools. Each retailer also wants to be the No. 1 marketer on the Web, and can achieve that by matching its customers to the books of any publisher, without favoring Harper Collins.

“81% of a random sample of Mature-rated video games included content that was not noted on the game box.” So declares the press release crowing about findings of a study led by Associate Professor Kimberly Thompson of the Kids Risk Project at Harvard School of Public Health (HSPH). ”Study Finds M-Rated Video Games Contain Violence, Sexual Themes, Substances, and Profanity Not Labeled on Game Boxes, press release of Monday, April 03, 2006, Harvard School of Public Health.” Yes, 81% of the games rated “M” (for “mature”, as in “hey folks, this is something you may not want your kids to play with before you’ve taken a closer look”), had content that was not mentioned in the rating description.

They accomplished this feat by hiring one “gamer” to play the games for an hour. No, they did not consider how kids – much less “mature” audiences for which the games are intended – play the games. They faked it. And then they chastise those that took the trouble of rating the game and warned parents to be alert.

It’s a good thing they didn’t decide to study what percentage of beers have more alcohol than is stated on the label – and hired a student to go bar-hopping to collect the research. Sure, at the end of the day (or after the hangover the next morning), they might be able to publish how many beers failed to state or under-stated the alcohol content, and warn parents that they should be on the lookout when their kids go drinking, because you can’t be sure whether a beer stating 4.5% actually contained 4.6% alcohol.

In the early days, the game industry was chastised for lack of ratings. Anyone and everyone was free to rate games, of course, but they preferred to criticize others for not doing so. Even the Harvard School of Public Health could have done so – it seems to have plenty of resources to play them and pass judgment. But no, critics, including vocal members of Congress, wanted the industry to do it.

Once the industry implemented a pretty successful rating program, critics browbeat them for not being sufficiently accurate. Again, HSPH is free to develop a competing rating system, but no, it’s easier to criticize the one organization doing something.

They save their most serious criticism for not accurately telling children the stuff that is on computer games that have been flagged for mature audiences rather than children. And what is this content that has them so upset? Mostly violence. Fake violence. Pretend violence. Perhaps if I had been immersed in mature video games as a kid, that other kid never would have hit me in the face with a rock, I would not have bloodied that other kid’s nose with an apple, nor hit my sister over the head with a bongo drum, nor would I have received those stitches in my forehead when I collided with another kid during horseplay – real, actual, violent horseplay. But now we know, thanks to Harvard, that those games parents have been warned may be unsuitable for their children may contain something else that makes the game, well, maybe, also unsuitable for their children.

I guess if you warn a kid not to play with matches, you need to correctly specify how many matches are in the box.

What bothers me the most is that the concern over the content of video games is a concern over what kids themselves may do with them. Because a game may “allow” a player to make the character it controls keep kicking another character after they are down, we condemn the game makers. Those clips they like to show up on Capitol Hill during one of their too many hearings invariably are the product of some gamer purposely showing just how mean, nasty and disgusting you can make your character appear – they don’t show real kids having a really good time. Much less real adults, who tend to enjoy mature games too. And much, much less adults who enjoy playing them with their kids.

But I stray from my point, which is that getting all riled up about what a game is capable of letting the player do is sort of like blaming Crayola for making crayons with which kids are capable of drawing dirty pictures.

Freedom of expression is just as much about the freedom of a kid to decide whether to draw a dirty picture, or whether to make the game character hit another one over the head with a barrel.

The First Amendment protects Harvard’s right to publish this “study”, but it also protects Harvard’s right to step up and say what it thinks about the appropriateness of any video game for any age person without regard to what the rating may be. The First Amendment used to mean that the cure for speech we don’t like is more speech. Too often, those charged with educating us would rather squander their own free speech opportunities by criticizing the well-intended free speech of others instead of coming up with their own original contributions. Like those who enjoy making loud derisive remarks during someone else’s public performance, those who lack the will or the talent to effectively engage in their own free speech tend to take the path of least resistance by booing the speech of others.

It was only a matter of time before book publishers jumped on the DMCA-enabled copyright expansion bandwagon. Book publisher Random House and Sylvania, a leading light bulb manufacturer, announced today the launch of a new strategic partnership. Beginning April 1, 2007, Random House will begin publishing all of its books using a specialized ink that is enhanced by Sylvania’s PigLite®, a new line of light bulbs that will enable readers to view 75% sharper text and have access to exclusive marginalia and author notes not viewable in any other light.

“The movie, music and software industries have long been extending their copyrights into non-copyrightable activity under cover of the DMCA [Digital Millennium Copyright Act], and we felt it was time for book publishers to get in on the action,” said J. S. Fibbing, Random House’s Chief of Copyright Leveraging. Sources within Sylvania, who spoke on condition of anonymity, admitted that the PigLite had been developed years ago, but shelved for lack of any market application other than childish pranks. The DMCA presented a new market opportunity. Depending on the amount of pigment used in the ink, printed text may not be viewable at all without the PigLite or, in smaller quantities, text can be made to look much sharper under a PigLite. Random House refused to comment on whether it was going to purposely make normal text fuzzier to create a greater incentive to use the PigLite.

“It is a win-win situation for everyone,” claimed Fibbing. Advance payments by Sylvania will enable us to print more books at a lower cost to consumers, but when consumers see the hidden benefits of reading our books under a PigLite, we expect Sylvania’s light bulb sales to soar – and we get a percentage.

Responding to criticism that all consumers should have access to the hidden text, Random House insisted that fair use would be preserved. “We will be donating PigLites to public libraries, where anyone can read the books without having to buy a PigLite.”

A group of high school students used as a focus group thought the PigLite was fun to play with, and suggested it might have some application in writing secret messages, but they also discovered that the same effects of the PigLite could be achieved by using a common flashlight under bedcovers. Attorneys for Random House and Sylvania promptly responded with a lawsuit in the Second District Court of Amityville seeking an injunction barring the teens form repeating this information to others. “Such information constitutes a device to circumvent access control technologies, in direct violation of the DMCA,” they told the Court.

Some members of Congress expressed concern that the Copyright Act does not empower copyright owners to dictate what reading lights may be used, but the PigLite team quickly pointed out that other copyright industries have already been using the DMCA to thumb their noses at the Copyright Act’s restrictions and to leverage copyrights into unrelated industries. “Since the 1990’s, copyright owners have been specifying which media players, computer operating systems, compression algorithms, streaming technology, download methods and playback equipment could be used to access digital works, so what’s the big deal about specifying which light bulb must be used to read a book?” declared their principal lobbyist.

Asked about the impact on retail sales in bookstores, Mr. Fibber said not to worry. “We expect sales to increase as consumers flock to learn what hidden text may appear giving exclusive clues in a crime novel, for example. Plus, our retailers can earn a little extra by selling PigLites too. If this works, we expect to branch out into other areas in partnership with our retailers. For example – we expect to announce soon the use of new bar codes that will give retailers a one percent rebate on every random house book sale, provided they install the new PigBar® bar code readers developed by our excusive bar code reader partner.

When asked whether this created any antitrust concerns, a spokesperson for the Department of Justice replied that, to the contrary, it would stimulate increased competition in the creation of anti-competitive and monopoly-enhancing schemes. The United States Trade Representative expressed optimism that the United States could firmly establish itself as “the world leader in the creation of SBP-ACT, and a new SBP-ACT provision was going to be included in all new FTAs.” (Prone to speak in acronyms, “FTAs” means Free Trade Agreements. “SBP-ACT” stands for “Stupid But Profitable Access Control Technologies.”]

[Note to audiences outside of the United States: The date of this post is significant in the United States, which celebrates “April Fools Day” on this day. This post is in honor of foolish policymakers who fail to appreciate the harm to the public when copyright owners to use technology to leverage their copyrights into control over products and services unrelated to copyrights, and to give them de facto control over non-infringing uses of their works, and in honor of foolish copyright owners who fail to realize that these copyright-expansion technologies are a dream come true for professional pirates, who will gladly fill consumer demand for un-crippled copies of their works.]

For the last several years, state and federal government executives and lawmakers have assumed they can garner more votes by cow-towing to a few self-described “family” organizations and demanding direct or indirect censorship of movies, music and video games. At the federal level, the executive and legislative branches urged the FTC (Federal Trade Commission) to join the fray, but its attorneys were bright enough to stop short of outright censorship, which would have been clearly illegal. They did, however, use their bully pulpit to cajole and harass retailers by use of secret shoppers and progress reports on whether kids were able to walk into a store unsupervised (except by them) and walk out with a product rated above their age group.

In addition to reminding them that the First Amendment gives children the right to do this despite the government’s wishes, I argued to the FTC that the real question was not how many kids were able to obtain a product above their age rating, but how many were able to do so over their parents’ objection – and whether any parents of those children were upset with the store instead of their own child. As a parent myself, I always added my children as authorized renters on my video store card with no restrictions, even from the time they were too young to walk into the store alone. Why? As a parent, I would much rather learn of and deal with my child’s choice in entertainment media than have the government or retailers keep me in the dark. Plus, I wanted my children to learn to be responsible shoppers before reaching age 18.

Today, the Entertainment Software Association reported that most parents agree with me that the government should let them parent. ESA reports that among “gamer parents” (defined as parents who play computer and video games but not solely desktop card games or children’s games), 73% are voters, of which 85% believe that “they – not the government, retailers or game publishers – should take the most responsibility in monitoring children’s exposure to games,” and 60% agree that “it is not the role of government to regulate game sales in an attempt to protect kids from exposure to violent and/or sexual video game content.”

Curiously, 36% seem to feel that the government should take over the parenting in this area – perhaps they’d like to see their children become wards of the state?

The New York Times reported that New York Attorney General Eliot Spitzer is investigating possible antitrust violations in the pricing of songs sold by Internet music services. If true, retailers in the music, movie, book and video game downloading business, or those who might hope to compete in that space, will certainly hope that Spitzer looks at the right issues.

Competition in the retail reproduction of copyrighted works over the Internet is sorely lacking. Back in 2001, long before iTunes hit the market, a representative of one of the leading music retailers testified before the Senate Judiciary Committee that music retailers were ready, willing and able to offer commercial retail downloading services in competition with each other, in competition with the major record companies’ own services and (most importantly) in competition with Napster and other “free” p2p services, but they could not get the record companies’ permission to do so. (In fact, they had been ready since 1996 – since before Napster came along to fill the void.)

The New York Times story talks about possible lack of price competition at the wholesale level. Although that is an important issue, other areas where competition is sorely needed are in the media players, operating systems, compression/decompression algorithms (”CODECs”) and transmission systems supported by these few services. Record companies have no more business telling an online retailer whether a particular media player may be supported than telling a bricks and mortar retailer that it cannot sell CDs to customers who use an Onkyo sound system.

The major copyright holding companies should get back into the business of making available the most compelling works they can, setting a wholesale price that is the same for any retail competitor who wants to compete, and then getting out of the way – letting retailers do what they do best, which is to compete with each other in providing the best product selection, the best customer services, the easiest to navigate websites, the most attractive product delivery, and yes, the most competitive retail prices.

The wholesale price of each copyrighted work should be set individually. There is no reason every song should cost the same. But once the wholesale price is set (and maybe modified from day to day, based on what the competition is doing), the retailers should be free to decide whether they want to pick up a license to sublicense the reproduction of that work, how they will transmit it to their customers (including whether to use a closed p2p system), and what the retail price for each song will be. Smaller retailers, in particular, should be free to decide whether to use a specialized company for all thee technical architecture and fulfillment.

Let’s just hope Mr. Spitzer keeps in mind that antitrust laws do not involve just price, but also all other terms and conditions of sale. It is high time we started having some serious competition in the legal downloading of copyrighted works.

The National Institute on Media and the Family issued its Tenth Annual MediaWise Video Game Report Card. The Report begins with quite a bit of the same foolishness that has characterized past endeavors, as it addresses a “problem” that can only exist in problem families.

They have for years complained about the Entertainment Software Ratings Board (ESRB), as though an industry ratings board was ever obligated to meet the standards of some self-appointed guardians of morality. Now, they seemed to be willing to take a little responsibility for more than just complaining that someone else is not doing their work. But, alas, they only seem poised to create a larger chorus of back-seat drivers.

The Report says: “After years of criticizing the ESRB ratings and calling for improvement and overhaul of the system, we have come to the conclusion that the system itself is beyond repair.” That sounded like good news to me, as it might have led them to take a little responsibility for creating a ratings system of their own. Indeed, the Report went on:

“In response to the ESRB’s recent failure, the National Institute on Media and the Family will convene a summit next year on video game ratings with the leading national organizations dedicated to children’s health and welfare, including Children Now, the National PTA, and the American Academy of Child and Adolescent Psychiatry. We plan to issue and endorse a set of ratings recommendations.”

Unfortunately, these “ratings recommendations” will once more be recommendation that someone else do the heavy lifting on ratings. Much further on in the Report, this item is rephrased: “The National Institute on Media and the Family will convene a National Summit on Video Game Ratings with leading parent, health, and child welfare groups. The purpose will be to review the current ESRB rating system and issue a set of recommendations for improvement.”

That’s right, they won’t lift a finger to do it themselves. Instead, they will review the ESRB ratings and make recommendations to the ESRB. That is a fine thing to do, of course, if you really want to persuade the ESRB to make alterations, but it is despicable when it becomes the modus operandi for funding drives. They are selling the appearance of influence and relevance in game ratings, while they could be much more effective if they quietly sat down and created a competing ratings system.

The First Amendment gives these folks complete freedom to play every video game out there and opine to their heart’s delight concerning who should or should not be permitted to play them. They can create and publicize any ratings system they wish. Instead, groups like this tend to like to berate the only people providing a widely accepted ratings service, and to call on lawmakers to help threaten them with unconstitutional legislation.

Today, the Texas Attorney General filed suit against Sony BMG under the Texas Consumer Protection Against Computer Spyware Act, seeking redress for the recently-reported practice of surreptitiously installing “cloaking” software that is very difficult to remove and reportedly leaves computers vulnerable to third parties who would use it to hide malicious code.

This may be terrific news for the entertainment industry, as it is sure to help chill efforts to overreach in the use of anti-competitive and abusive technology in the guise of “copy-protection” technology.

Such overreaching only makes infringing but “clean” reproductions more attractive, and the sooner copyright owners can get on with allowing legitimate retailers unrestrained freedom to compete against pirates, the better.

Thanks to a major flaw in our patent system, Yale University is, as reported in the Yale Daily News, is weighing whether to pay Acacia Research Corporation an annual sum to make a questionable patent claim over streaming technology go away, or pay lawyers possibly more to prove that Acacia’s claim is baseless.

Acacia has been engaged in a similar shake-down of many other companies who stream video over the Internet, and it impacts the ultimate cost of these services to the consumer. Even a video store, for example, wanting to stream movie trailers to prospective customers, could be the victim of Acacia’s demands.

It is bad enough that if the questionable license is purchased now and turns out to be invalid, Acacia will have made off like a bandit in the meantime. What is worse is that this procedure is being employed in a manner that directly burdens freedom of speech over the Internet. As such, courts should place a heavy burden upon those who, like Acacia, attempt to use a monopoly granted by the government and a legal process supervised by the courts to suppress speech in such manner.

Back in the early days of the civil rights movement, the Supreme Court make clear that private parties could not avail themselves of the courts to enforce private contracts that sought to impose private agreements to discriminate, and that local law enforcement officers could not be called upon to enforce garden-variety rights such as trespass when they were used to maintain a segregated establishment.

Here, patent laws are being used to tax speech. In such case, instead of the alleged infringer having to cower at the prospect of heavy damages for knowing infringement should they fail to heed the warning to “pay up,” the courts should presume that the expressive activity is permissible, and place the entire burden on the patent holder to first prove that the patent is valid and can be used to burden the speech.

LiveJournal reports the good news that a law-breaking lawyer has been kicked off of a case (Jack Thompson Thrown off Alabama Case by Judge). Attorney Jack Thompson has abused his own freedom of speech in seeking to abridge the freedom of speech of buyers and sellers of a popular video game. Attorneys ordinarily swear to uphold the Constitution. Although Thompson was not kicked off for violating his oath or attempting to use the courts to suppress speech (and the case of Strickland v. Sony is ongoing), it was refreshing that the judge found sufficient misbehavior to revoke his right to appear and referred the matter to the Disciplinary Commission.