Tag Archives: copyright

Speech-licensing regime for digital world challenged in court

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You have the right to a lobbyist. If you cannot afford one, you’re screwed.

The Electronic Frontier Foundation launched a constitutional challenge to a federal law that criminalises what you do with digital media and devices that you think you own. The Digital Millennium Copyright Act outlawed nearly anything anyone does that circumvents restrictions on DVDs you buy, mobile phones you own and pretty much anything that involves digital intellectual property. The language is so broad that it can turn millions of unwitting people into criminals every day.

When congress passed it in 1998, digital media was in its infancy. Lobbyists from movie studio, record labels and other companies that were nursing decades long grudges against analog tape recording convinced their congressional friends to completely change the game for the digital world to come.

One of the provisions of the law makes it the responsibility of the Librarian of Congress to grant exceptions, something that’s done only once every three years. That process has been sporadic and inconsistent, as low tech bureaucrats flip flop over high tech arcana. The end result, according to the lawsuit EFF filed in a D.C. court, is an assault on free speech…

These provisions broadly restrict the public’s ability to access, speak about, and use copyrighted materials, without the traditional safeguards—such as the fair use doctrine—that are necessary to protect free speech and allow copyright law to coexist with the First Amendment. The threat of enforcement of these provisions chills protected and noninfringing speech that relies on copyrighted works, including independent technical research into computer security systems and the discussion of that research, and accessing copyrighted works in order to shift the content to a different format, space, or time. The triennial rulemaking process by which the public may seek exemptions…does not alleviate these problems. To the contrary, the rulemaking is itself an unconstitutional speech-licensing regime.

The First Amendment does not distinguish between different kind of media. What matters is content and what you do with it. Transferring a movie from a DVD to your cellphone is no different than copying a vinyl record to a cassette tape so you can listen to it in your car. If the latter is legal – and it is – the former should be too.

Collateral damage could kill hotspots

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Toll barrier coming down on free range WiFi.

Free public WiFi access might be an unintended casualty of the imminent onslaught of the Copyright Alert System, otherwise known as the Six Strikes rule. I say “might” because I’m not completely sure that the damage will be unintentional. There’s no doubt there will be damage.

This joint effort by major U.S. ISPs and the recording and movie industry associations is a monitoring program that watches Internet traffic for illegal downloading activity. When it’s spotted, the person or – it now appears – business paying for the access line involved will be at the tender mercies of a “progressive educational system” run by an umbrella organization called the Center for Copyright Information.

The more education required, the stiffer the lesson becomes. It starts with a warning and proceeds to temporary bandwidth throttling. Ultimately, it could lead to an account being shut off.

Businesses, non-profits or public institutions that offer free public WiFi access could face a double whammy. There’s the direct problem of someone logging on and downloading pirated material. Preventing that is beyond the capability of most hotspot operators. So the warnings and throttling will come.

The real slam happens when a casual hotspot provider tries to protest.

“Oh, you say it wasn’t your fault because someone used your public WiFi connection? Well, we can fix that. Your terms of service prohibit sharing your bandwidth, you know. So just shut down that WiFi and everything will be fine. We’ll turn your Internet back on as soon as you do.”

That’s the scenario facing Verizon customers, according to an article in Ars Technica. I can’t imagine other telcos and cable companies behaving any better.

The only ray of hope is that the cumulative inconveniences and annoyances will surely result in enough public anger to make ISPs back off. Or inspire regulators to step in. Wouldn’t it be better to act in a civilized manner in the first place?

We can hope.