November 18th, 2008 by Joshua Kagan
A new U.S. president prepares to take office… will his “change” include a new technology policy? French record labels gear up for a fight against open source media sharing software. A European fashion designer tries to enforce a copyright judgment in New York. The judge who shut down Napster proposes a sweeping copyright reform. Craigslist fights prostitutes. It’s time for a global perspective! Hear Michael and Josh tackle these issues and more on this week’s special internationally-focused episode of The Singularity Law Podcast!
Click the play button below to listen, or click here to subscribe to us on iTunes!
Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.
Here are the show notes for this week’s episode:
Shownotes for The Singularity Law Podcast: Episode 7 for November 17, 2008
Our Panel for Today:
President-Elect Obama Talks Technology Policy
Net Neutrality
From Pages to Platforms: The Law of Web 2.0 and Beyond
Practice Pointer: Conditional vs. Promissory Language in Licenses
Turbulence in the International Arena
Napster Judge Proposes Radical Copyright Reform
Final Thoughts: Craigslist and Hookers
We apologize for the fluctuations in sound quality throughout this episode. We realized about 15 minutes into recording that our microphone had a bad connection.
November 15th, 2008 by Joshua Kagan
This past Thursday I gave a talk called “From Pages to Platforms” about the ways that Web 2.0 has affected Internet Law. Here it is in webcast form.
I recommend downloading (instead of allowing it to play in the browser) for a full-screen picture.
From Pages to Platforms: The Law of Web 2.0 and Beyond:
Play Now |
Play in Popup |
Download
November 5th, 2008 by Joshua Kagan
On this week’s Singularity Law Podcast, Michael and I briefly discussed some of the conflicts that exist between various copyleft licenses. Since then, I’ve had a few conversations with friends and attorneys (one at a job interview, in fact) in which I’ve detected some significant misunderstandings about the way these licenses relate to each other. Among many people–even some IP law practitioners–there’s a notion that “open source is open source.” This couldn’t be more wrong.
Common Ground
Copyleft licenses all have one big thing in common: they remove particular common copyright law restrictions on copies of works. For most works protected by U.S. copyrights, the owner of a copyright uses the law to prohibit others from reproducing, adapting, or distributing copies of his work. But copyleft licenses grant some or all of those rights to every person who receives a copy of the work. It’s wrong to think of this as the copyright owner surrendering one or more of his exclusive rights. The copyright owner is simply offering a license to use the work in one of a certain number of ways. Subsequent uses of the work are then “licensed uses” so long as they comply with the terms of the license selected by the copyright owner. But if someone uses the work without complying with the license, then his use is an infringing one.
So, copyleft isn’t an absence of copyright. In fact, copyleft licenses rely on copyright law to enforce their provisions, which are usually intended to ensure that subsequent users of the work will always have the same rights to a work as did the generations before them.
The Incompatibilities
The problem here is that these licenses are not created equal.
One common family of licenses that is used for Web content is the Creative Commons series. These are designed to encourage creativity among Web users by making content available with only “some rights reserved.” But there isn’t just one license called “Creative Commons;” even in this single “family” of licenses there are a number of versions available. For example, a copyright owner could decide to require attribution on each copy made, or require that the work and derivatives only be used for non-commercial purposes. The copyright owner could even prohibit modification of the work entirely. One provision allows licensors to require that licensees “share-alike,” meaning that copies and derivatives of the licensed work must be licensed under identical terms.
Compare the Creative Commons licenses to the GNU General Public License (GPL) or the GNU Free Documentation License (GFDL) and you’ll find that there are stark differences that often make it impossible to create “mixed” works that incorporate content licensed under different terms. Michael Scott, my co-host on the Podcast, learned this the hard way when he sought to use material from the EFF’s website (licensed under a Creative Commons license that requires attribution and that all uses be noncommercial) on his IT Law Wiki, a reference project that makes all material available under the GFDL (which does not require attribution and permits commercial uses). This kind of “mixed” work couldn’t be done without asking the copyright owner of the original work to waive certain rights so that the material can be relicensed under new terms.
Similar incompatibilities exist between the GPL and the Apple Public Source License (APSL), the Mozilla Public License (MPL), and the OpenSSL license. Does this mean that a distribution of GNU Linux (GPL) can’t be bundled with a copy of the Firefox Web browser (MPL)? Of course not. But it does mean that a developer couldn’t use code from the Linux kernel’s TCP/IP stack to improve OpenSSL and then distribute copies of that improved software under the OpenSSL license.
The Compatibilities
Luckily, not all of these licenses are at war with each other. For reference materials and documentation, one terrific new development is section 11 of the new GFDL version 1.3, which permits most existing material that was previously licensed under the GFDL to be relicensed under the Creative Commons 3.0 Attribution-ShareAlike license. This means that a work that was published under a GFDL license prior to the start of this month can be used in many Creative Commons projects. Wikipedia, the driving force behind this revision, is licensed under the GFDL, which means that all content that was posted to that site prior to November 1 is now more compatible.
On the software side of things, the Free Software Foundation has also made things simpler by making the GPL–by far the most popular open source license–compatible with a variety of other copyleft licenses. With other popular licenses like the two-clause FreeBSD license on the list, you might be surprised by just how usable GPL code really is.
I’m an open source advocate because copyleft licenses enable people to create tools that can change the world, while providing future generations with code and text that can be used to solve absolutely any problem for which it is suited, including new problems that the original author did not foresee. But I also recognize that tangled and competing licenses don’t provide any benefit to anyone. In the future I hope to see an organization like the Free Software Foundation take more of a leadership role in this area, bringing the community together so that creative people can make the most of their work.
November 4th, 2008 by Joshua Kagan
The DMCA celebrates its tenth birthday; are we better off than we were ten years ago? Who is the real winner in the Google Book Search settlement? Can California’s legislature control violent video games? Michael and Josh tackle these questions and more on this week’s edition of The Singularity Law Podcast!
Click the play button below to listen, or click here to subscribe to us on iTunes!
Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.
Here are the show notes for this week’s episode:
Shownotes for The Singularity Law Podcast: Episode 6 for November 4, 2008
Our Panel for Today:
DMCA’s 10th Anniversary: Where Do We Go From Here?
The Google Book Search Settlement
Regulating Violent Video Games
Final Thoughts
November 1st, 2008 by Joshua Kagan
California Civil Code § 1746, a law enacted in 2005, criminalized the sale or rental of certain violent video games to minors. The law didn’t last long. A federal court declared it unconstitutional last year and it wasn’t hard to see why.
As a content-based regulation, § 1746 requires a strict scrutiny analysis, which means that such a law is only constitutional when the state (1) has a compelling interest and (2) the law uses the least restrictive means to further that interest. The State argued that it had a compelling interest in preventing minors from accessing violent games and presented a study that purported to link violent behavior with violent games. The Court didn’t buy the State’s argument, finding that the plaintiffs raised serious questions about whether there is a causal connection between access to such games and harm to children. In the end, the plaintiffs were awarded an injunction against enforcement of the statute. Fast-forward to October 2008, and § 1746 has reared its ugly head again in the form of an appeal by Governor Schwarzenegger.
The video game industry is no stranger to controversy over game content. In 1994 it established a self-regulatory organization called the Entertainment Software Rating Board (ESRB) that applies ratings to all video games and sets certain advertising guidelines that publishers agree to. Its ratings mimic the ones used by the motion picture industry, with distinct categories for age groups like “Everyone,” “Teen,” and “Mature 17+.” Like the film rating system, the ESRB’s ratings are technically voluntary, but that doesn’t mean they’re without consequences. For example, Wal-Mart will only stock ESRB-rated games and won’t sell any games that carry an “Adults Only 18+” rating. Wal-Mart is currently the U.S.’s biggest reseller of games, so that means an AO rating is a kiss of death for most titles. A few months ago when I was working for a game publisher making a game based on the SAW movies, this was a significant concern. Ratings have real effects on the way publishers do business.
For what it’s worth, I don’t disagree that some games can be harmful to children. Grand Theft Auto IV, Soldier of Fortune: Payback, Brothers in Arms: Hell’s Highway, and many other games contain content that isn’t suitable for children. But so do at least as many Hollywood movies and popular TV shows. The industry recognizes this, which is why self-regulating programs like the ESRB have developed to keep violent games out of children’s hands while ensuring that games are still widely available. But more importantly, it’s not the state government’s place to restrict the sale of content that qualifies as speech. As courts have already found in other states that tried similar legislation including Arizona, Illinois, Louisiana, Massachusetts, and Oklahoma, this kind of law can’t survive a First Amendment attack on its face.
Next Wednesday when the appeal comes before the Ninth Circuit, I suspect the Court will agree. There isn’t really any uncertainty there. The real question here is whether lawmakers in Sacramento and other state legislatures will get the message as well.