From monica at sarai.net Thu Oct 2 08:21:32 2003 From: monica at sarai.net (Monica Narula) Date: Thu, 02 Oct 2003 02:51:32 -0000 Subject: [Commons-Law] free mickey! Message-ID: This one goes out specially for lawrence! best M Free Mickey! Disney has lobbied hard to keep its creations under copyright protection. But in the 1970s, a group of renegade cartoonists threatened to unleash the mouse. By Jeet Heer, 9/28/2003 SINCE HIS ONSCREEN debut in 1928, Mickey Mouse has been an icon of childhood innocence. But in recent years, the famous rodent has also found himself at the center of a contentious debate over the reach of copyright law. In 1998, the Walt Disney Corporation and other entertainment giants successfully lobbied Congress to pass the Sonny Bono Copyright Extension Act, which delayed the entrance of creative works into the public domain until up to 70 years after their creator's death. Derided as the Mickey Mouse Protection Act and challenged in the courts on First Amendment and other grounds, the law was upheld by the Supreme Court last January. ADVERTISEMENT But this was not the first time Mickey's corporate handlers had sought to keep him on a tight leash. In the 1970s, the underground cartoonist Dan O'Neill risked a life-destroying lawsuit and jail time when he published a series of raunchy Mickey-taunting comics. Along the way, O'Neill recruited scores of followers into two of the wackiest groups to emerge from the counterculture of the 1970s: the Air Pirates and the Mouse Liberation Front. Throughout the proceedings of Walt Disney Productions v. The Air Pirates, which raged from 1971 to 1979, the courts showed little sympathy to the free-speech arguments made by O'Neill and his merry band. One judge after another dismissed the idea that the Air Pirates deserved First Amendment protection until the Supreme Court finally refused to hear their case. To add insult to injury, Supreme Court Justice Anthony Kennedy later described the Air Pirates in passing as "profiteers who [did] no more than . . . place the characters from a familiar work in novel or eccentric poses." But to their fans, the Air Pirates were free-speech martyrs and innovative artists who were unfairly penalized simply because they worked in the popular but disdained medium of the comic book. "The judges deciding this case were all pretty much 60 years old or older," notes San Francisco lawyer Bob Levin, whose new book "The Pirates and the Mouse: Disney's War Against the Underground" (Fantagraphics) provides a lively reexamination of the case. "Their whole take on comic books was to think of them as trash, not as anything of significance. If the same thing had been going on in a different medium -- in the visual arts, literature, or cinema -- [the Air Pirates] probably would have gotten a more respectful hearing." . . . To understand the Air Pirates, you have to start with ringleader Dan O'Neill. Born in Virginia in 1942, O'Neill was a lifelong troublemaker. As a teenager, he shut down his Oakland high school for two weeks when he pumped 4 million cubic feet of ferrous sulphide through the ventilation system. (Black Panther leader Huey Newton, a schoolmate, would later tell him, "God, that was the only vacation I had in my life.") When he wasn't wreaking havoc, O'Neill was drawing cartoons. After working on several alternative papers, he sold his daily comic strip "Odd Bodkins" to the San Francisco Chronicle in 1963, when he was 21. The strip was soon syndicated to scores of newspapers around the country (including The Boston Globe), making O'Neill the youngest syndicated newspaper cartoonist in history. With its misshapen animals and fantastic creatures waxing metaphysical, "Odd Bodkins" gained a cult following as a trippy version of "Pogo" or "Peanuts." When O'Neill started the strip, Levin writes, the Chronicle gave him three simple rules: "No religion, no politics, and no sex in the strip." But O'Neill, who hung out with Lenny Bruce and other fixtures on the underground comedy scene, was undaunted. Using hippie slang, Morse code messages, and other subterfuges, he began peppering his strip with comments about the Vietnam War and the drug culture. Increasingly the strip featured distorted versions of all-American icons -- Abraham Lincoln, the Lone Ranger, and a grungy-looking Mickey Mouse -- traipsing across a surreal landscape, often with suspicious cigarettes in their mouths. As "Odd Bodkins" became more pointed in its political messages and loopier in its psychedelic humor, it began losing newspapers. Even the free-spirited San Francisco Chronicle finally dropped the strip in 1970, despite a torrent of reader protest. O'Neill blamed his troubles on the fact that American popular culture had become too saccharine and namby-pamby -- a problem he traced to Walt Disney's rigid code of cuteness, epitomized by his winsome mouse. Exiled from the newspaper page, O'Neill plunged into the burgeoning world of underground comics, where bohemian artists like Robert Crumb and Gilbert Shelton were producing work that was like raw id on paper. Printed by ad-hoc publishers and distributed largely through head shops (hippie boutiques specializing in drug paraphernalia), these cartoons suffered from none of the restrictions imposed on mainstream efforts. In 1971, O'Neill organized the Air Pirates -- a group of young cartoonists named for villains who had battled Mickey Mouse in the 1930s. Gary Hallgren, a sign painter from Seattle, and Barry London, a high school dropout from Brighton Beach, Brooklyn, were master mimics of classic cartoon styles. Shary Flenniken, an admiral's daughter, had enlivened many underground comics with her wry, feminist humor. Ted Richards, kicked out of the military for smoking pot, had created Dopin' Dan, a Beetle Bailey-type who tokes up. The Air Pirates began producing a string of satirical comic books from their communal live-in studio in San Francisco, along with hashish-inspired schemes for selling them. "One involved dropping comic books from blimps. Another was to hire winos to dress as policemen and sell them on street corners," Flenniken told The Comics Journal in 1991. Most of these schemes evaporated when the pot smoke cleared. In 1971, the group released their most controversial comics, "Air Pirates Funnies" nos. 1 and 2, in print runs of 15,000-20,000 copies, under the aegis of Hell Comics. The highlights were stories that showed Mickey Mouse and other Disney characters in distinctly unsavory situations. But for all the references to sadomasochism and drugs, the Air Pirates' work was fairly mild compared with other underground comics of the era, which tended to feature disturbing tableaux of mangled bodies and orgies. By contrast, "Air Pirates Funnies" were impeccably drawn to imitate the warm and gangly style of the Mickey Mouse strips of the early 1930s (those strips were drawn by a cartoonist named Floyd Gottfredson, although always credited to Disney). Why did the Air Pirates do it? "Throughout my childhood, Mickey Mouse was used as a placebo to lull me into thinking everything was all right," Barry London later noted in a court deposition. "But I found the happy-ever-after world of Walt and Mickey Mouse to be a poor half-truth. 'Air Pirates Funnies' shows that Mickey doesn't always win." O'Neill was certainly spoiling for a fight. When his comics met with no response, he had a friend -- the son of the chairman of Disney's board of directors -- sneak copies into a board meeting and lay them out. Disney filed suit against the Air Pirates, charging them with copyright infringement. While the lawyers for the Air Pirates compared their clients to satirists like Swift and Fielding, Disney's accused them of producing "obscene nonsense" designed "to degrade and disparage all that Disney has done." Disney was particularly upset at the fact that the Air Pirates were repeat offenders. Unlike the underground paper The Realist (which had famously tweaked the mouse in a 1967 centerfold called "Walt Disney Memorial Orgy"), the Air Pirates didn't just publish a one-off, but apparently intended to continue with the anti-Disney theme. In 1975, Disney won nearly $200,000 in damages and a restraining order against O'Neill, who was mocking Disney by continuing to draw Mickey Mouse every chance he got. Four years later, when O'Neill was fined and jailed for violating the injunction, the Mouse Liberation Front was formed. Its members harried Disney by flooding comic book conventions with anonymous bootleg Mickey Mouse cartoons, which they auctioned off to pay the Air Pirates' legal expenses. Faced with the prospect of infringement on such a massive scale, Disney finally reached a settlement with O'Neill. Disney dropped the contempt charge and the damage judgment, and O'Neill agreed not to "mouse it up any more." By some estimates, Disney spent $2 million to achieve this result. . . . The Air Pirates might have battled Disney to a draw, but why were the courts so unsympathetic to their free-speech claims? Wendy Gordon, a legal scholar at Boston University who specializes in copyright issues, believes their playfulness did the Air Pirates no favors. "People communicate not only through rational, logical sentences," she notes. "They also use entertainment, shared experiences, intuitions. But the court gave the spirit of play no space to wiggle its toe." Also working against the Air Pirates was the long-standing legal and cultural prejudice against comics, argues Charles Brownstein, executive director of the Comic Book Legal Defense Fund, a Northampton-based nonprofit established in 1987 to help cartoonists and retailers fight for free-speech protection. The prejudice against comic books, argues Brownstein, dates back to the Kefauver Senate Subcommittee Hearings of 1954, which blamed horror comics for the problem of juvenile delinquency. Comics began gaining ground as a legitimate art form in the 1980s, when adult-oriented works like Art Spiegelman's "Maus" won a wide mainstream audience. But legal progress has only come more recently. In an important case decided earlier this year, the California Supreme Court ruled that "Jonah Hex" comics' notorious portrayal of the musical duo the Winter Brothers as the spawn of a giant subterranean worm was protected under the First Amendment. . . . Echoes of the case live on in the recent court skirmishes over literary parodies like "The Wind Done Gone" and even in the raging battle over the downloading of movies and music over the Internet. But these days, the Air Pirates themselves have largely settled into comfortable careers. Bobby London and Gary Hallgren, ironically, found jobs working for Disney in the 1980s before resuming freelance work. Shary Flenniken served a long stint as the main cartoonist for National Lampoon. Ted Richards now works as a computer executive in Silicon Valley. As for Dan O'Neill, a few years ago he resumed drawing "Odd Bodkins," which runs in alternative city weeklies along the West Coast. There are still those, even in the freewheeling world of underground cartoonists, who believe that by trampling on copyright the Air Pirates simply went too far. "I own my work and I don't want to be ripped off," says the San Francisco-based feminist cartoonist Trina Robbins, mastermind behind Wimmen's Comix. "Dan O'Neill owns `Odd Bodkins' just like Disney owns Mickey Mouse. It doesn't matter that Disney is a big corporation and Dan O'Neill is one guy. Copyright laws apply to everyone." In upholding Congress's copyright extension, the Supreme Court has guaranteed Disney's lock on Mickey until the year 2023. But the Air Pirates' comics, which now fetch prices in the $100 range, retain an unexpected freshness. Unlike most hippie artifacts, the strips -- with their uncanny stylistic echoes of the golden age of cartooning -- haven't aged. Although enemies in the courtroom, the satirists and their target are bound together in a shared aesthetic. Jeet Heer is a regular contributor to the National Post of Canada and the Globe. © Copyright 2003 Globe Newspaper Company. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20031002/65aa5605/attachment.html From sunil at mahiti.org Fri Oct 3 07:07:23 2003 From: sunil at mahiti.org (Sunil Abraham) Date: Fri, 03 Oct 2003 01:37:23 -0000 Subject: [Commons-Law] SGI's Letter to the Linux Community Message-ID: <1065489162.713.15.camel@localhost> http://oss.sgi.com/letter_100103.txt October 1, 2003 To the Linux Community: As one of many contributors to the Open Source movement and to Linux, SGI takes the subject of intellectual property rights seriously. Our contributions are a valuable expression of ideas which contribute to the intellectual richness of Linux. Over the past four years, SGI has released over a million lines of code under an open source license. Throughout, we have carried out a rigorous internal process to ensure that all software contributed by SGI represents code we are legally entitled to release as open source. When a question was raised by the community earlier in the summer about the ate_utils.c routine, we took immediate action to address it. We quickly and carefully re-reviewed our contributions to open source, and found brief fragments of code matching System V code in three generic routines (ate_utils.c, the atoi function and systeminfo.h header file), all within the I/O infrastructure support for SGI's platform. The three code fragments had been inadvertently included and in fact were redundant from the start. We found better replacements providing the same functionality already available in the Linux kernel. All together, these three small code fragments comprised no more than 200 lines out of the more than one million lines of our overall contributions to Linux. Notably, it appears that most or all of the System V code fragments we found had previously been placed in the public domain, meaning it is very doubtful that the SCO Group has any proprietary claim to these code fragments in any case. As a precaution, we promptly removed the code fragments from SGIs Linux website and distributed customer patches, and released patches to the 2.4 and 2.5 kernels on June 30 and July 3 to replace these routines and make other fixes to the SGI infrastructure code that were already in progress at SGI. Our changes showed up in the 2.5 kernel within a few weeks of our submission, and the 2.4 changes were available in the production version of the 2.4 kernel as of August 25 when the 2.4.22 kernel was released. Thus, the code in question has been completely removed. Following this occurrence, we continued our investigation to determine whether any other code in the Linux kernel was even conceivably implicated. As a result of that exhaustive investigation, SGI has discovered a few additional code segments (similar in nature to the segments referred to above and trivial in amount) that may arguably be related to UNIX code. We are in the process of removing and replacing these segments. SCO's references to XFS are completely misplaced. XFS is an innovative SGI- created work. It is not a derivative work of System V in any sense, and SGI has full rights to license it to whomever we choose and to contribute it to open source. It may be that SCO is taking the position that merely because XFS is also distributed along with IRIX it is somehow subject to the System V license. But if so, this is an absurd position, with no basis either in the license or in common sense. In fact, our UNIX license clearly provides that SGI retains ownership and all rights as to all code that was not part of AT&Ts UNIX System V. I hope this answers some of the questions that you and the Linux community might have. We continue to release new Linux work, and are very excited about the growth and acceptance of Linux. We are continuing full speed to do new work and release new Linux products. We take our responsibility to the open source community seriously and are confident that we have an effective process to verify the quality and integrity of our contributions to Linux. Rich Altmaier VP of Software, SGI richa at sgi.com -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas,then each of us will have two ideas" George B. Shaw From vishwas123_ at hotmail.com Sat Oct 4 03:55:08 2003 From: vishwas123_ at hotmail.com (Vishwas Devaiah) Date: Fri, 03 Oct 2003 22:25:08 -0000 Subject: [Commons-Law] (no subject) Message-ID: An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20031003/e0519116/attachment.html From sunil at mahiti.org Sun Oct 5 06:28:50 2003 From: sunil at mahiti.org (Sunil Abraham) Date: Sun, 05 Oct 2003 00:58:50 -0000 Subject: [Commons-Law] Compulsory Licensing - What is Music? Message-ID: <1065659644.1259.277.camel@localhost> Features: Compulsory Licensing - What is Music? http://research.yale.edu/lawmeme/modules.php?name=News&file=article&sid=1241 Posted by Ernest Miller on Friday, October 03 @ 12:51:42 EDT File Sharing John Cage composed the once (and still) scandalous 4'33". Yoko Ono recorded the sound of a toilet flushing as a track (Toilet piece/Unknown 0:30) on her album Fly. A number of geneticists have created music from DNA sequences (Genetic Music: An Annotated Source List). Long time readers of LawMeme are probably familiar with the DeCSS Song, which puts the source code of the infamous program to music and sort of reminds me of Philip Glass' Einstein on the Beach. What the heck does all this have to do with compulsory licensing? Presumably, all of the above sound recordings would be compensated under most compulsory license schemes (many of which only cover "music"). No problem, no one would argue with this, right? But what about this [.WAV] [32K] file? UPDATED 1915 ET 02 Oct 03. Ka-Blamo Baudio The .wav file above is the sound rendition of a .bmp file that normally represents a picture of Scott Matthews, author of the smart MP3 server Andromeda. Scott has written a small program called Ka-Blamo Baudio which: adds a 44 byte header that transforms any type of file into a WAV file, saving it with a ".wav" extension appended to the end of the file name. So, for example, hello.exe would become hello.exe.wav. Conversely, the Baudio decorder takes a file and removes that 44 byte header and the trailing ".wav" extension, reverting it back to its original state. What Scott's program means, is that any digital content can easily be transformed into a sound file, or in technical copyright lingo, a "sound recording," which when fixed becomes a "phonorecord." Many compulsory license schemes only apply to "music" but since they don't define the term, or discuss changes in how audio works are categorized, one must assume that they are using the current definitions of "sound recording" and "phonorecord." Consequently, any creator of digital content can benefit from a music-only compulsory license scheme. A Boon for Shareware Authors and Pornographers? Such a system works for any digital content, since anything digital can easily be transformed. You can transform video, images or even software into an audio file. However, we can look at two likely users of such a capability - shareware authors and pornographers. Generally, a shareware author relies on the kindness of strangers to receive recompense for their programs. Unfortunately, the rate of return can be pretty lousy. Many people who use shareware never compensate the author, despite requests, and even annoying reminders. Ka-Blamo can provide a solution. Under most compulsory license schemes, a shareware author can turn their program into sound file, encourage others to download it, and receive money through the allocation fund. Users of the program can easily compensate the author, not by sending him/her money directly, but simply by downloading the version of the program with a sound file extension. Given the ease of use with which Ka-Blamo Baudio and Not-Ka-Blamo Baudio decoder work, many users would be happy to use such a system. This even works with "voting" systems, such as Aaron Swartz's system, previously discussed on LawMeme (Aaron Swartz Invents Proto Whuffie). Instead of sending Aaron's gift certificates to musicians, you can send your gift certificate to your favorite shareware author(s). The same works for pornography as well. As anyone who watches what is being searched for on P2P networks knows, there is an awful lot of interest in pornography on P2P systems. Unfortunately, many compulsory license schemes do not discuss how pornographers are to be compensated when their work is shared. Even if the compulsory license scheme addresses all media, there isn't any discussion devoted to the fact that politically controlled schemes will likely slight pornographers and they won't get fair compensation. Through this means, however, pornographers can freely share their works and be assured of reasonable compensation. This would be especially attractive to amateurs, I think, since they wouldn't have to run websites with passwords or worry about e-commerce issues. Their audience would also love it. No more mysterious credit card charges to explain ... your porno collection is disguised to look like part of your music collection ... there are a lot of benefits. Choose Your Compensation Scheme Even if the compulsory license scheme isn't music-only, the fungibility of digital files means that artists will be able to choose which compensation scheme they prefer ... since presumably different media types will receive differing amounts of compensation. Don't like how much your song can get from the compulsory scheme? Turn it into a "video" (or "software" or a "photo" or whatever) that receives more compensation. One can also imagine that programs like Ka-Blamo Baudio can be tweaked to take advantage of the compensation schemes for various sorts of media. For example, many propose compensating audio files on some basis that takes into account their length. Thus a 3 minute piece would be compensated less that a 15 minute piece. Programs like Ka-Blamo Baudio could easily be tweaked to take any file and create an audio file of arbitrary length beyond some minimum size, based on the original file size. I can imagine shareware authors "pricing" their software in minutes and seconds. Steganography Another method that can be used to gain compensation would be steganography, which permits one to embed one digital file into another. It can be cumbersome, but the bigger the audio file the better, right? In the case of steganography, one takes an audio file (such as the author singing the Star Spangled Banner), and embeds another file (such a software program or pornographic picture) in the original by taking advantage of unused data. Britney Spears could send a photo of Britney embedded in her latest opus. Pornographers could embed photos in a track of moans and groans. Shareware authors could embed their program into a track created by a text-to-speech program that read the source code. Good, Bad, Indifferent? Many people will consider manipulating the compensation system for compulsory license in this way a bad thing. Certainly, if the compulsory scheme is music only, the ability of other media to take advantage of the system will create resentment, as the fixed pie is spread among an ever greater number of mouths. If the system is all media, this will likely be a lesser problem, but the fact that people can media shift to take advantage of "better" compensation allotments will also cause consternation. Can these problems be solved? Perhaps. One possible law to halt the steganography issue would be, not to ban steganography, but to deny compensation for the sharing of any file that utilized steganography. However, there are costs to this. Interesting marketing techniques would be forever unexplored, for example. It seems odd to say that you can't add value to an existing work this way. What about other forms of bundling files? Will all bundles not be compensated? Ka-Blamo Baudio actually raises the more difficult question. How will we readily distinguish and claim that what Ka-Blamo Baudio does (or more sophisticated versions) is not music - is not art? Where and how will we draw the line? Who will get to decide what and what is not music? Will they be able to exclude Yoko's toilet flushing and ring tones? Will they exclude Cage or the DeCSS song? Frankly, I think the .bmp/.wav file is kind of interesting ... certainly I can imagine defending it as art. In any case, proponents of compulsory licensing schemes may want to consider how they will handle this issue, before we adopt a compulsory licensing scheme. This is one in a series of posts looking at some of the issues regarding compulsory licensing that don't include collection and distribution of funds. For previous postings, see: Compulsory Licensing - What is Noncommercial Use? Some Questions and Concerns Regarding EFF's Filesharing Policy What Should the RIAA Sue For? Compulsory Licensing - More on Commercial/Noncommercial Compulsory Licensing - The Death of Gnutella and the Triumph of Google Aaron Swartz Invents Proto Whuffie Compulsory Licensing - Where Are the Defenders of HTTP? Compulsory Licensing - The Public Domain Lottery? -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas,then each of us will have two ideas" George B. Shaw From sunil at mahiti.org Mon Oct 6 06:51:30 2003 From: sunil at mahiti.org (Sunil Abraham) Date: Mon, 06 Oct 2003 01:21:30 -0000 Subject: [Commons-Law] Unintended Consequences: Five Years under the DMCA Message-ID: <1065747419.787.8.camel@localhost> http://www.eff.org/IP/DRM/DMCA/20031003_unintended_cons.php 1. Executive Summary Since they were enacted in 1998, the “anti-circumvention” provisions of the Digital Millennium Copyright Act (“DMCA”), codified in section 1201 of the Copyright Act, have not been used as Congress envisioned. Congress meant to stop copyright pirates from defeating anti-piracy protections added to copyrighted works, and to ban “black box” devices intended for that purpose.[1] In practice, the anti-circumvention provisions have been used to stifle a wide array of legitimate activities, rather than to stop copyright piracy. As a result, the DMCA has developed into a serious threat to several important public policy priorities: Section 1201 Chills Free Expression and Scientific Research. Experience with section 1201 demonstrates that it is being used to stifle free speech and scientific research. The lawsuit against 2600 magazine, threats against Princeton Professor Edward Felten’s team of researchers, and prosecution of Russian programmer Dmitry Sklyarov have chilled the legitimate activities of journalists, publishers, scientists, students, program–mers, and members of the public. Section 1201 Jeopardizes Fair Use. By banning all acts of circumvention, and all technologies and tools that can be used for circumvention, section 1201 grants to copyright owners the power to unilaterally eliminate the public’s fair use rights. Already, the music industry has begun deploying “copy-protected CDs” that promise to curtail consumers’ ability to make legitimate, personal copies of music they have purchased. Section 1201 Impedes Competition and Innovation. Rather than focusing on pirates, many copyright owners have wielded the DMCA to hinder their legitimate competitors. For example, Sony has invoked section 1201 to protect its monopoly on Playstation video game consoles, as well as their “regionalization” system limiting users in one country from playing games legitimately purchased in another. Section 1201 Becomes All-Purpose Ban on Access To Computer Networks Further, section 1201 has been misused as a new general-purpose prohibition on computer network access which, unlike the several federal “anti-hacking” statutes that already protect computer network owners from unauthorized intrusions, lacks any financial harm threshold. Disgruntled ex-employer Pearl Investment’s use of the DMCA against a contract programmer who connected to the company’s computer system through a password-protected Virtual Private Network illustrates the potential for unscrupulous persons to misuse the DMCA to achieve what would not be possible under existing computer access regulation regimes. This document collects a number of reported cases where the anti-circumvention provisions of the DMCA have been invoked not against pirates, but against consumers, scientists, and legitimate comp–etitors. It will be updated from time to time as additional cases come to light. The latest version can always be obtained at www.eff.org. 2. DMCA Legislative Background Congress enacted section 1201 in response to two pressures. Congress was responding to the perceived need to implement obligations imposed on the U.S. by the 1996 World Intellectual Property Or–ganization (WIPO) Copyright Treaty. Section 1201, however, went further than the WIPO treaty required.[2] The details of section 1201, then, were a response not just to U.S. treaty obligations, but also to the concerns of copyright owners that their works would be widely pirated in the networked digital world.[3] Section 1201 contains two distinct prohibitions: a ban on acts of circumvention, and a ban on the distribution of tools and technologies used for circumvention. The first prohibition, set out in section 1201(a)(1), prohibits the act of circumventing a technological measure used by copyright owners to control access to their works (“access controls”). So, for example, this provision makes it unlawful to defeat the encryption system used on DVD movies. This ban on acts of circumvention applies even where the purpose for decrypting the movie would otherwise be legitimate. As a result, when Disney’s Tarzan DVD prevents you from fast-forwarding through the commercials that preface the feature presentation, efforts to circumvent this restriction would be unlawful. Second, sections 1201(a)(2) and 1201(b) outlaw the manufacture, sale, distribution or trafficking of tools and technologies that make circumvention possible. These provisions ban both technologies that defeat access controls, and also technologies that defeat use restrictions imposed by copyright owners, such as copy controls. These provisions prevent technology vendors from taking steps to defeat the “copy-protection” now appearing on many music CDs, for example. Section 1201 also includes a number of exceptions for certain limited classes of activities, including security testing, reverse engineering of software, encryption research, and law enforcement. These exceptions have been extensively criticized as being too narrow to be of real use to the constituencies who they were intended to assist.[4] A violation of any of the “act” or “tools” prohibitions is subject to significant civil and, in some circumstances, criminal penalties. 3. Free Expression and Scientific Research Section 1201 is being used by a number of copyright owners to stifle free speech and legitimate scientific research. The lawsuit against 2600 magazine, threats against Princeton Professor Edward Felten’s team of researchers, and prosecution of the Russian programmer Dmitry Sklyarov have chilled a variety of legitimate activities. Bowing to DMCA liability fears, online service providers and bulletin board operators have begun to censor discussions of copy-protection systems, programmers have removed computer security programs from their websites, and students, scientists and security experts have stopped publishing details of their research on existing security protocols. Foreign scientists are increasingly uneasy about traveling to the United States out of fear of possible DMCA liability, and certain technical conferences have begun to relocate overseas. These developments will ultimately result in weakened security for all computer users (including, ironically, for copyright owners counting on technical measures to protect their works), as security researchers shy away from research that might run afoul of section 1201.[5] Cyber-Security Czar Notes Chill on Research Speaking at MIT in October 2002, White House Cyber Security Chief Richard Clarke called for DMCA reform, noting his concern that the DMCA had been used to chill legitimate computer security research. The Boston Globe quoted Clarke as saying, “I think a lot of people didn't realize that it would have this potential chilling effect on vulnerability research.” Jonathan Band, “Congress Unknowingly Undermines Cyber-Security,” S.J. Mercury News, Dec. 16, 2002. http://www.siliconvalley.com/mld/siliconvalley/4750224.htm Hiawatha Bray, “Cyber Chief Speaks on Data Network Security,” The Boston Globe, October 17, 2002. http://www.boston.com/globe/search/ Professor Felten’s Research Team Threatened In September 2000, a multi-industry group known as the Secure Digital Music Initiative (SDMI) issued a public challenge encouraging skilled technologists to try to defeat certain watermarking technologies intended to protect digital music. Princeton Professor Edward Felten and a team of researchers at Princeton, Rice, and Xerox took up the challenge and succeeded in removing the watermarks. When the team tried to present their results at an academic conference, however, SDMI representatives threatened the researchers with liability under the DMCA. The threat letter was also delivered to the researchers’ employers and the conference organizers. After extensive discussions with counsel, the researchers grudgingly withdrew their paper from the conference. The threat was ultimately withdrawn and a portion of the research was published at a subsequent conference, but only after the researchers filed a lawsuit.ß After enduring this experience, at least one of the researchers involved has decided to forgo further research efforts in this field. Pamela Samuelson, “Anticircumvention Rules: Threat to Science,” 293 Science 2028, Sept. 14, 2001. http://www.sciencemag.org/cgi/reprint/293/5537/2028 Letter from Matthew Oppenheim, SDMI General Counsel, to Prof. Edward Felten, April 9, 2001. http://cryptome.org/sdmi-attack.htm Hewlett Packard Threatens SNOsoft Hewlett-Packard resorted to Section 1201 threats when researchers published their discovery of a security flaw in HP’s Tru64 UNIX operating system. The researchers, a loosely-organized collective known as Secure Network Operations (“SNOsoft”), received the DMCA threat after releasing software in July 2002 that demonstrated vulnerabilities that HP had been aware of for some time, but had not bothered to fix. After the DMCA threat received widespread press attention, HP ultimately withdrew the threat. Security researchers received the message, however—publish vulnerability research at your own risk. Declan McCullagh, “Security Warning Draws DMCA Threat,” CNET News, July 30, 2002. http://news.com.com/2100-1023-947325.html Blackboard Threatens Security Researchers In April 2003, educational software company Blackboard Inc. used a DMCA threat to stop the presentation of research on security vulnerabilities in its products at the InterzOne II conference in Atlanta. Students Billy Hoffman and Virgil Griffith were scheduled to present their research on security flaws in the Blackboard ID card system used by university campus security systems but were blocked shortly before the talk by a cease-and-desist letter invoking the DMCA. Blackboard obtained a temporary restraining order against the students and the conference organizers at a secret “ex parte” hearing the day before the conference began, giving the students and conference organizer no opportunity to appear in court or challenge the order before the scheduled presentation. Although the lawsuit complaint Blackboard subsequently filed did not mention the DMCA, its invocation in the original cease-and-desist letter preceding the complaint contributed to the chill the students and conference organizers felt in challenging the complaint and proceeding with the scheduled presentation. John Borland, “Court Blocks Security Conference Talk,” CNET News, April 14, 2003. http://news.com.com/2100-1028-996836.html Xbox Hack Book Dropped by Publisher In 2003, U.S. publisher John Wiley & Sons dropped plans to publish a book by security researcher Andrew “Bunnie” Huang, citing DMCA liability concerns. Wiley commissioned Huang to write the book which analyzes security flaws Huang discovered in the process of reverse-engineering the Microsoft X-Box game console, after Huang published his research as part of his doctoral work at M.I.T. Huang did not distribute the Xbox public security keys which he had isolated through reverse engineering and did not copy any Xbox code. Although the DMCA includes exceptions for circumvention for computer security testing and reverse engineering, they were too narrow to be of use to Huang or his publisher. Following Microsoft’s legal action against the website vendor of an Xbox mod chip in early 2003, and the music industry’s 2001 DMCA threats against Professor Felten’s research team, Wiley dropped the book fearing that the publisher might be liable for “making available” a “circumvention device.” Huang’s initial attempt to self-publish was thwarted after his online shopping cart provider also withdrew, citing DMCA concerns. After several months of negotiations, Huang eventually self-published the book in mid 2003. The book is now being published by No Starch Press. David Becker, “Testing Microsoft and the DMCA”, CNET News, April 15, 2003. http://news.com.com/2008-1082-996787.html Clive Akass, “Huang Jury on Xbox Cracker”, TechNewsWorld, August 2003 http://www.technewsworld.com/perl/story/31406.html Seth Schiesel, “Behind a Hacker’s Book, a Primer on Copyright Law”, New York Times, Circuits, July 10, 2003. http://www.nytimes.com/2003/07/10/technology/circuits/10xbox.html Censorware Research Obstructed Seth Finkelstein conducts research on “censorware” software (i.e., programs that block websites that contain objectionable material), working to document flaws in such software, including the products of N2H2, a leading censorware company. Finkelstein’s research documenting websites inappropriately blocked by N2H2’s software assisted the ACLU’s successful First Amendment challenge to the use of mandatory web filtering software by federally-funded public libraries.[6] N2H2 claims that its encrypted list of blocked websites is legally protected by the DMCA against attempts to read and analyze it. Utilizing a limited three year exemption granted by the Librarian of Congress and Copyright Register in 2000, Finkelstein circumvented the encryption on the list of sites blocked by BESS in order to analyze flaws in that list. However, Finkelstein’s research work has been severely limited by the fact that the three year exemption is limited to the act of circumvention, and does not permit him to create or distribute tools that would facilitate his research. In addition, the existing exemption is due to expire in October 2003, and as Finkelstein testified before the Copyright Office in its 2003 rule-making hearing, unless the exemption is re-granted, Finkelstein will be unable to continue his research because he fears that censorware companies may bring a DMCA lawsuit against him to terminate his research. Even if he were later found not to have violated section 1201, the potential for a DMCA lawsuit would preclude him from undertaking further research. Jennifer 8 Lee, “Cracking the Code of Online Censorship”, New York Times, July 19, 2001. http://www.nytimes.com/2001/07/19/technology/circuits/19HACK.html Transcript of Hearing in Copyright Office Rulemaking Proceeding RM 2002-04, tri-ennial anti-circumvention exemption hearing, April 11, 2003, at pages 11, 31 available at: http://www.copyright.gov/1201/2003/hearings/schedule.html Benjamin Edelman has also conducted extensive research into flaws in various censorware products. Edelman’s research led to his providing expert testimony for the ACLU in a recent federal court case challenging the constitutionality of the Children's Internet Protection Act (CIPA), which mandates that public libraries use censorware products like those sold by N2H2. In the course of his work for the ACLU, Edelman discovered that the DMCA might interfere with his efforts to learn what websites are blocked by N2H2 products. Because he sought to create and distribute software tools to enable others to analyze the list if it changed, Edelman could not rely on the limited 3 year exception. As he was not willing to risk civil and criminal penalties under Section 1201, Edelman was forced to go to federal court to seek clarification of his legal rights before he could undertake his legitimate research. However, underscoring the chilling effect of the DMCA on such research, the Court dismissed Edelman’s case for lack of standing. ACLU, “In Legal First, ACLU Sues Over New Copyright Law” (case archive). http://archive.aclu.org/issues/cyber/Edelman_N2H2_feature.html Dmitry Sklyarov Arrested In July 2001, Russian programmer Dmitry Sklyarov was jailed for several weeks and detained for five months in the United States after speaking at the DEFCON conference in Las Vegas. Prosecutors, prompted by software goliath Adobe Systems Inc., alleged that Sklyarov had worked on a software program known as the Advanced e-Book Processor, which was distributed over the Internet by his Russian employer, ElcomSoft Co. Ltd. The software allowed owners of Adobe electronic books (“e-books”) to convert them from Adobe’s e-Book format into Adobe Portable Document Format (“pdf”) files, thereby removing restrictions embedded into the files by e-Book publishers. Sklyarov was never accused of infringing any copyrighted e-Book, nor of assisting anyone else to infringe copyrights. His alleged crime was working on a software tool with many legitimate uses, simply because third parties he has never met might use the tool to copy an e-Book without the publisher’s permission. The Department of Justice ultimately permitted Sklyarov to return home, but elected to proceed against his employer, ElcomSoft, under the criminal provisions of the DMCA. In December 2002, a jury acquitted Elcomsoft of all charges, completing an 18-month ordeal for the wrongly-accused Russian software company. Lawrence Lessig, “Jail Time in the Digital Age,” N.Y. Times at A7, July 30, 2001. http://www.nytimes.com/2001/07/30/opinion/30LESS.html Lisa Bowman, “Elcomsoft Verdict: Not Guilty,” CNET News, Dec. 17, 2002. http://news.com.com/2100-1023-978176.html Scientists and Programmers Withhold Research Following the legal threat against Professor Felten’s research team and the arrest of Dmitry Sklyarov, a number of prominent computer security experts have curtailed their legitimate research activities out of fear of potential DMCA liability. For example, prominent Dutch cryptographer and security systems analyst Niels Ferguson discovered a major security flaw in an Intel video encryption system known as High Bandwidth Digital Content Protection (HDCP). He declined to publish his results on his website relating to flaws in HDCP, on the grounds that he travels frequently to the U.S. and is fearful of “prosecution and/or liability under the U.S. DMCA law.” Niels Ferguson, “Censorship in Action: Why I Don’t Publish My HDCP Results,” Aug. 15, 2001. http://www.macfergus.com/niels/dmca/cia.html Niels Ferguson, Declaration in Felten & Ors v R.I.A.A. case, Aug. 13, 2001. http://www.eff.org/IP/DMCA/Felten_v_RIAA/20010813_ferguson_decl.html Lisa M. Bowman, “Researchers Weigh Publication, Prosecution,” CNET News, Aug. 15, 2001. http://news.cnet.com/news/0-1005-200-6886574.html Following the arrest of Dmitry Sklyarov, Fred Cohen, a professor of digital forensics and respected security consultant, removed his “Forensix” evidence-gathering software from his website, citing fear of potential DMCA liability. Another respected network security protection expert, Dug Song, also removed content from his website for the same reason. Mr. Song is the author of several security papers, including a paper describing a common vulnerability in many firewalls. Robert Lemos, “Security Workers: Copyright Law Stifles,” CNET News, Sept. 6, 2001. http://news.com.com/2100-1001-272716.html In mid-2001 an anonymous programmer discovered a vulnerability in Microsoft’s proprietary e-Book digital rights management code, but refused to publish the results, citing DMCA liability concerns. Wade Roush, “Breaking Microsoft's e-Book Code,” Technology Review at 24, November 2001. http://www.technologyreview.com/articles/innovation11101.asp Foreign Scientists Avoid U.S. Foreign scientists have expressed concerns about traveling to the U.S. following the arrest of Russian programmer Dmitry Sklyarov. Some foreign scientists have advocated boycotting conferences held in the U.S. and a number of conference bodies have decided to move their conferences to non-U.S. locations. Russia has issued a travel warning to Russian programmers traveling to the U.S. Highly respected British Linux programmer Alan Cox resigned from the USENIX committee of the Advanced Computing Systems Association, the committee that organizes many of the U.S. com–puting conferences, because of his concerns about traveling to the U.S. Cox has urged USENIX to hold its annual conference offshore. The International Information Hiding Workshop Conference, the conference at which Professor Felten’s team intended to present its original paper, chose to break with tradition and held its next conference outside of the U.S. following the SDMI threat to Professor Felten and his team. Will Knight, “Computer Scientists boycott US over digital copyright law,” New Scientist, July 23, 2001. http://www.newscientist.com/news/news.jsp?id=ns00001063 Alan Cox of Red Hat UK Ltd, declaration in Felten v. RIAA, Aug. 13, 2001. http://www.eff.org/IP/DMCA/Felten_v_RIAA/20010813_cox_decl.html Jennifer 8 Lee, “Travel Advisory for Russian Programmers,” N.Y. Times at C4, Sept.10, 2001. http://www.nytimes.com/2001/09/10/technology/10WARN.html IEEE Wrestles with DMCA The Institute of Electrical and Electronics Engineers (IEEE), which publishes 30 per cent of all computer science journals worldwide, recently was drawn into the controversy surrounding science and the DMCA. Apparently concerned about possible liability under Section 1201, the IEEE in November 2001 instituted a policy requiring all authors to indemnify IEEE for any liabilities incurred should a submission result in legal action under the DCMA. After an outcry from IEEE members, the organization ultimately revised its submission policies, removing mention of the DMCA. According to Bill Hagen, manager of IEEE Intellectual Property Rights, “The Digital Millennium Copyright Act has become a very sensitive subject among our authors. It’s intended to protect digital content, but its application in some specific cases appears to have alienated large segments of the research community.” IEEE press release, “IEEE to Revise New Copyright Form to Address Author Concerns,” April 22, 2002. http://www.ieee.org/newsinfo/dmca.html Will Knight, “Controversial Copyright Clause Abandoned,” New Scientist, April 15, 2002. http://www.newscientist.com/news/news.jsp?id=ns99992169 2600 Magazine Censored The Universal City Studios v. Reimerdes case[7] illustrates the chilling effect that section 1201 has had on the freedom of the press. In that case, eight major motion picture companies brought a DMCA suit against 2600 Magazine seeking to block it from publishing the DeCSS software program, which defeats the encryption used on DVD movies. 2600 had made the program available on its web site in the course of ongoing coverage of the controversy surrounding the DMCA. The magazine was not involved in the development of software, nor was it accused of having used the software for any copyright infringement. Notwithstanding the First Amendment’s guarantee of a free press, the district court permanently barred 2600 from publishing, or even linking to, the DeCSS software code. In November 2001, the Second Circuit Court of Appeals upheld the lower court decision. In essence, the movie studios effectively obtained a “stop the presses” order banning the publication of truthful information by a news publication concerning a matter of public concern—an unprecedented curtailment of well-established First Amendment prin–ciples. Carl S. Kaplan, “Questioning Continues in Copyright Suit,” N.Y. Times, May 4, 2001. http://www.nytimes.com/2001/05/04/technology/04CYBERLAW.html Simson Garfinkel, “The Net Effect: The DVD Rebellion,”Technology Review at 25, July/Aug. 2001. http://www.technologyreview.com/articles/garfinkel0701.asp Xenia P. Kobylarz, “DVD Case Clash—Free Speech Advocates Say Copyright Owners Want to Lock Up Ideas; Encryption Code is Key,” S.F. Daily Journal, May 1, 2001. CNET Reporter Feels Chill Prominent CNET News reporter Declan McCullagh recently found four publicly-available documents on the Transportation Security Administration (TSA) website. The website announced that the documents contained information about airport security procedures, the relationship between federal and local police, and a “liability information sheet.” A note on the site stated that this “information is restricted to airport management and local law enforcement.” No password was necessary to download the documents, but they were distributed in encrypted form and a password was required to open and read them. McCullagh obtained the passwords from an anonymous source, but fear of DMCA liability stopped him from reading the documents—using a password without authorization could violate Section 1201. This is particularly ironic, as any foreign journalist beyond the reach of the DMCA would be free to use the password. “Journalists traditionally haven't worried about copyright law all that much,” said McCullagh, “But nowadays intellectual property rights have gone too far, and arguably interfere with the newsgathering process.” Declan McCullagh, “Will This Land Me in Jail?”, CNET News, Dec. 23, 2002. http://news.com.com/2010-1028-978636.html Microsoft Threatens Slashdot In spring 2000, Microsoft invoked the DMCA against the Internet publication forum Slashdot, demanding that forum moderators delete materials relating to Microsoft’s proprietary implementation of an open security standard known as Kerberos. In the Slashdot forum, several individuals alleged that Microsoft had changed the open, non-proprietary Kerberos specification in order to prevent non-Microsoft servers from interacting with Windows 2000. Many speculated that this move was intended to force users to purchase Microsoft server software. Although Microsoft responded to this criticism by publishing its Kerberos specification, it conditioned access to the specification on agreement to a “click-wrap” license agreement that expressly forbade disclosure of the specification without Microsoft’s prior consent. Slashdot posters responded by republishing the Microsoft specification. Microsoft then invoked the DMCA, demanding that Slashdot remove the republished specifications. In the words of Georgetown law professor Julie Cohen, “If Microsoft's interpretation of the DMCA's ban on circumvention technologies is right, then it doesn't seem to matter much whether posting unauthorized copies of the Microsoft Kerberos specification would be a fair use. A publisher can prohibit fair-use commentary simply by implementing access and disclosure restrictions that bind the entire public. Anyone who discloses the information, or even tells others how to get it, is a felon.” Julie Cohen, “Call it the Digital Millennium Censorship Act – Unfair Use,” The New Republic, May 23, 2000. http://www.thenewrepublic.com/cyberspace/cohen052300.html AVSforum.com Censors TiVo Discussion The specter of DMCA litigation has chilled speech on smaller web bulletin boards as well. In June 2001, for example, the administrator of AVSforum.com, a popular forum where TiVo digital video recorder owners discuss TiVo features, censored all discussion about a software program that allegedly permitted TiVo users to move video from their TiVos to their personal computers. In the words of the forum administrator, “My fear with this is more or less I have no clue what is a protected system on the TiVo box under copyright (or what-have-you) and what is not. Thus my fear for the site.” Lisa M. Bowman, “TiVo Forum Hushes Hacking Discussion,” CNET News, June 11, 2001. http://news.cnet.com/news/0-1005-200-6249739.html Mac Forum Censors iTunes Store Discussion Macintosh enthusiast website Macosxhints censored publication of information about methods for evading the copy protection on songs purchased from the Apple iTunes Music Store in May 2003, citing DMCA liability concerns. Songs purchased from the Apple iTunes Music Store are downloaded in Apple’s proprietary AAC file format, wrapped in digital copy protection. This prevents purchasers from playing the songs on non-iPod portable MP3 players or from transferring songs to non Mac OS computers for personal, non-commercial use, even if that would be considered fair use under copyright law. As the webmaster for the site noted, even though information on bypassing the copy protection was readily available on the Internet at the time, republishing user hints on work-arounds risked attracting a DMCA lawsuit and harsh penalties. http://www.macosxhints.com/article.php?story=20030507104823670#comments 4. Fair Use Under Siege “Fair use” is a crucial element in American copyright law—the principle that the public is entitled, without having to ask permission, to use copyrighted works in transformative ways or other ways that do not unduly interfere with the copyright owner’s market for a work. Fair uses include personal, noncommercial uses, such as using a VCR to record a television program for later viewing. Fair use also includes activities undertaken for purposes such as criticism, comment, news reporting, teaching, scholarship or research. While stopping copyright infringement is an important policy objective, Section 1201 throws out the baby of fair use with the bathwater of digital piracy. By employing technical protection measures to control access to and use of copyrighted works, and using section 1201 litigation against anyone who tampers with those measures, copyright owners can unilaterally eliminate fair use, re-writing the copyright bargain developed by Congress and the courts over more than a century. Copy-protected CDs The introduction of “copy-protected” CDs into the marketplace illustrates the collision between fair use and the DMCA. Record labels are aggressively incorporating “copy-protection” on new music releases. Over 10 million copy-protected discs are already in circulation, according to Midbar Technology Ltd, (now Macrovision), one vendor of copy-protection technology. Sony claims that it has released over 11 million copy-protected discs worldwide. Executives from major record labels EMI and BMG have both stated that a significant proportion of all CDs released in the U.S. will be copy-protected by the end of 2003. Whatever the impact that these copy protection technologies may have on online infringement, they are certain to interfere with the fair use expectations of consumers. For example, copy-protected discs will disappoint the hundreds of thousands of consumers who have purchased MP3 players, despite the fact that making an MP3 copy of a CD for personal use is a fair use. Making “mix CDs” or copies of CDs for the office or car are other examples of fair uses that are potentially impaired by copy-protection technologies. Companies that distribute tools to “repair” these dysfunctional CDs, restoring to consumers their fair use privileges, run the risk of lawsuits under section 1201’s ban on circumvention tools and technologies. Rep. Rick Boucher, “Time to Rewrite the DMCA,” CNET News, Jan. 29, 2002. http://news.com.com/2010-1078-825335.html Dan Gillmor, “Entertainment Industry's Copyright Fight Puts Consumers in Cross Hairs,” San Jose Mercury News, Feb. 12, 2002. http://www.siliconvalley.com/mld/siliconvalley/2658555.htm Gwendolyn Mariano, “Copy-Protected CDs Slide Into Stores,” CNET News, Feb. 12, 2002. http://news.com.com/2100-1023-835841.html Jon Healey and Jeff Leeds, “Record Labels Grapple with CD Protection”, Los Angeles Times, November 29, 2002, C.1. (subscription required for full article) http://www.latimes.com/business/la-fi-secure29nov29.story Fair Use Tools Banned We are entering an era where books, music and movies will increasingly be “copy-protected” and otherwise restricted by technological means. Whether scholars, researchers, commentators and the public will continue to be able to make legitimate fair uses of these works will depend upon the availability of tools to bypass these digital locks. The DMCA’s anti-circumvention provisions, how–ever, prohibit the creation or distribution of these tools, even if they are crucial to fair use. So, as copyright owners use technology to press into the 21st century, the public will see more and more fair uses whittled away by digital locks allegedly intended to “prevent piracy.” Perhaps more importantly, no future fair uses will be developed—after all, before the VCR, who could have imagined that fair use “time-shifting” of television would become common-place for the average consumer? Copyright owners argue that these tools, in the hands of copyright infringers, can result in “Internet piracy.” But the traditional answer for piracy under copyright law has been to seek out and prosecute the infringers, not to ban the tools that enable fair use. After all, photocopiers, VCRs, and CD-R burners can also be misused, but no one would suggest that the public give them up simply because they might be used by others to break the law. DeCSS, DVD Copy Plus and DVD CopyWare Fair use tools have already been yanked off the market. In the Universal v. Reimerdes case, discussed above, the court held that Section 1201 bans DeCSS software. This software decrypts DVD movies, making it possible to copy them to a PC. In another case, 321 Studios LLC has filed a declaratory judgment action in San Francisco after being threatened with DMCA liability by the MPAA for distributing DVD Copy Plus, which enables DVD owners to make copies of DVD content. The major motion picture studios have since counter-sued, alleging that DVD copying tools violate the DMCA. In a separate case, studios Paramount Pictures and Twentieth Century Fox have used the DMCA to sue Tritton Technologies, the manufacturer of DVD CopyWare, and three website distributors of other software that consumers can use to make a copy of the DVDs they have purchased. There are many legitimate reasons to copy DVDs. Once the video is on the PC, for example, lots of fair uses become possible—film scholars can digitally analyze the film, travelers can load the movie into their laptops, and parents can fast-forward through the “unskippable” commercials that preface certain films. Without the tools necessary to copy DVDs, however, these fair uses become impossible. Matthew Mirapaul, “They’ll Always Have Paris (and the Web),” N.Y. Times at E2, March 16, 2002. Lisa Bowman, “Hollywood Targets DVD- Copying Upstart,” CNET News, Dec. 20, 2002. http://news.com.com/2100-1023-978580.html Paramount Pictures Corporation et al v. Tritton Technologies Inc. et al, No. CV 03-7316 (S.D.N.Y. filed Sept.17, 2003). Advanced e-Book Processor and e-Books The future of fair use for books was at issue in the criminal prosecution of Dmitry Sklyarov and ElcomSoft. As discussed above, ElcomSoft produced and distributed a tool called the Advanced e-Book Processor, which translates e-books from Adobe’s e‑Book format to Adobe’s Portable Document Format (“PDF”). This translation process removes the various restrictions (against copying, printing, text-to-speech processing, etc.) that publishers can impose on e‑Books. The program is designed to work only with e‑Books that have been lawfully purchased from sales outlets. The Advanced e-Book Processor allowed those who have legitimately purchased e‑Books to make fair uses of their e‑Books, which would otherwise not be possible with the current Adobe e‑Book format. For instance, the program allows people to engage in the following activities, all of which are fair uses: · read it on a laptop or computer other than the one on which the e‑Book was first downloaded; · continue to access a work in the future, if the particular technological device for which the e‑Book was purchased becomes obsolete; · print an e‑Book on paper; · read an e‑Book on an alternative operating system such as Linux (Adobe's format works only on Macs and Windows PCs); · have a computer read an e‑Book out loud using text-to-speech software, which is particularly important for visually-impaired individuals. EFF, Frequently Asked Questions re U.S. v. Sklyarov. http://www.eff.org/IP/DMCA/US_v_Sklyarov/us_v_sklyarov_faq.html Time-shifting and Streaming Media As more consumers receive audio and video content from “streaming” Internet media sources, they will demand tools to preserve their settled fair use expectations, including the ability to “time-shift” programming for later listening or viewing. As a result of the DMCA, however, the digital equivalents of VCRs and cassette decks for streaming media may never arrive. Start-up software company Streambox developed exactly such a product, known simply as the Streambox VCR, designed to time-shift streaming media. When competitor RealNetworks discovered that Streambox had developed a competing streaming media player, it invoked the DMCA and obtained an injunction against the Streambox VCR product. RealNetworks, Inc. v. Streambox, Inc., 2000 WL 127311 (W.D. Wash. Jan. 18, 2000). The DMCA has also been invoked to threaten the developer of an open source, noncommercial software application known as Streamripper that records MP3 audio streams for later listening. Cease and desist letter from Kenneth Plevan on behalf of Live365.com to John Clegg, developer of Streamripper, April 26, 2001. http://streamripper.sourceforge.net/dc.php embed and Fonts In January 2002, typeface vendor Agfa Monotype Corporation threatened a college student with DMCA liability for creating “embed,” a free, open source, noncommercial software program designed to manipulate TrueType fonts. According to the student: “I wrote embed in 1997, after discovering that all of my fonts disallowed embedding in documents. Since my fonts are free, this was silly—but I didn't want to take the time to… change the flag, and then reset all of the extended font properties with a separate program. What a bore! Instead, I wrote this program to convert all of my fonts at once. The program is very simple; it just requires setting a few bits to zero. Indeed, I noticed that other fonts that were licensed for unlimited distribution also disallowed embedding…. So, I put this program on the web in hopes that it would help other font developers as well.” Agfa Monotype nevertheless threatened the student author with DMCA liability for distributing the program. According to Agfa, the fact that embed can be used to allow distribution of protected fonts makes it contraband under Section 1201, notwithstanding the fact that the tool has many legitimate uses in the hands of hobbyist font developers. Tom Murphy, “embed: DMCA Threats.” http://www.andrew.cmu.edu/~twm/embed/dmca.html Cease and Desist letter sent by Agfa. http://www.chillingeffects.org/copyright/notice.cgi?NoticeID=264 5. A threat to innovation and competition The DMCA is being used to hinder the efforts of legitimate competitors to create interoperable products. For example, Vivendi-Universal's Blizzard video game division invoked the DMCA in an effort to intimidate the developers of a software product derived from legitimate reverse engineering. Sony has used the DMCA to threaten hobbyists who created competing software for Sony’s Aibo robot dog, as well as to sue makers of software that permits the playing of Playstation games on PCs. In each of these cases, the DMCA was used to deter a marketplace competitor, rather than to battle piracy. Lexmark Sues Over Toner Cartridges Lexmark, the second-largest printer vendor in the U.S., has long tried to eliminate aftermarket laser printer toner vendors that offer toner cartridges to consumers at prices below Lexmark’s. In January 2003, Lexmark employed the DMCA as a new weapon in its arsenal. Lexmark obtained a DMCA injunction banning printer microchip manufacturer Static Control Components from selling chips it claimed were “technology” which “circumvented” certain “authentication routines” between Lexmark toner cartridges and printers. Lexmark added these authentication routines explicitly to hinder aftermarket toner vendors. Static Control reverse-engineered these measures and sold “Smartek” chips that enabled aftermarket cartridges to work in Lexmark printers. Lexmark used the DMCA to obtain an injunction banning Static Control from selling its reverse-engineered chips to cartridge remanufacturers.[8] Static Control has appealed that decision and countered by filing an anti-trust lawsuit. Whatever the merits of Lexmark’s position, it is fair to say that eliminating the laser printer toner aftermarket was not what Congress had in mind when enacting the DMCA. Declan McCullagh, “Lexmark Invokes DMCA in Toner Suit,” CNET News, Jan. 8, 2003. http://news.com.com/2100-1023-979791.html Steve Seidenberg, “Copyright Owners Sue Competitors,” NATIONAL LAW JOURNAL, Feb. 17, 2003. http://www.nlj.com/business/020303bizlede.shtml Chamberlain Sues Universal Garage Door Opener Manufacturer Garage door opener manufacturer Chamberlain Group invoked the DMCA against competitor Skylink Technologies after several major U.S. retailers dropped Chamberlain’s remote openers in favor of the less expensive Skylink universal “clickers”.[9] Chamberlain claimed that Skylink’s interoperable clicker violates the DMCA by bypassing an “authentication regime” between the Chamberlain remote opener and the mounted garage door receiver unit. Skylink reverse engineered the algorithm used by the garage door receiver’s computer program. Skylink’s transmitter sends three static codes which trigger a resynchronization function and open the garage door. Even though the Skylink clicker does not use the “rolling code” sent by the Chamberlain transmitter, Chamberlain claims that it “bypasses” its “authentication routine” to use the computer program that controls the door’s motor. On this view, a consumer who replaced his lost or damaged Chamberlain clicker with one of Skylink’s cheaper universal clickers would not be allowed to “access” his own garage. The same argument would apply equally to ban universal remote controls for televisions. Although Skylink defeated Chamberlain on a motion for summary judgment, Chamberlain has sought to ban the import and sale of Skylink clickers into the U.S. by filing a simultaneous lawsuit against Skylink and the clicker’s Chinese manufacturer in the International Trade Commission. Whatever the outcome of that suit, it is clear that in enacting the DMCA, Congress did not intend to give copyright owners the right to veto the creation of interoperable, non-copyrightable goods and technologies. Steve Seidenberg, Suits Test Limits of Digital Copyright Act, National Law Journal, February 7, 2003: http://www.law.com/jsp/article.jsp?id=1044059435217 Katie Dean, “Lexmark: New Fuel for DMCA Foes,”Wired, March 6, 2003: http://www.wired.com/news/digiwood/0,1412,57907-2,00.html Sony Sues Connectix and Bleem Since the DMCA’s enactment in 1998, Sony has used DMCA litigation to pressure competitors who created software that would allow PC owners to play games intended for the Sony Playstation video game console. In 1999, Sony sued Connectix Corporation, the manufacturer of the Virtual Game Station, an emulator program which allowed Sony Playstation games to be played on Apple Macintosh computers. Sony also sued Bleem, the leading vendor of Playstation emulator software for Windows PCs. In both cases, Sony claimed, then subsequently withdrew circumvention violations against Sony competitors that had created their products by engaging in legitimate reverse engineering, which has been recognized as noninfringing fair use in a series of Ninth Circuit cases. Connectix, in fact, ultimately won a Ninth Circuit ruling that its reverse engineering was indeed fair use.[10] Both Connectix and Bleem, however, were unable to bear the high costs of litigation against Sony and ultimately were forced to pull their products off the market. Whatever the merits of Sony’s position may have been under copyright, trademark, patent, or other legal theories, the competitive efforts of Connectix and Bleem certainly were at a far remove from the “black box” piracy devices that Congress meant to target with section 1201. Pamela Samuelson, “Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to be Revised,” 14 Berkeley Technology L.J. 519, 556 (1999) (discussing the Connectix case). http://www.sims.berkeley.edu/~pam/papers.html Testimony of Jonathan Hangartner on behalf of Bleem, Library of Congress, Hearing on DMCA, Stanford University, May 19, 2000, pp. 221-28. http://www.loc.gov/copyright/1201/hearings/1201-519.pdf Sony Threatens Aibo Hobbyist Sony has also invoked the DMCA against a hobbyist who developed custom programs for Sony’s Aibo robotic “pet” dog. The hobbyist cracked the encryption surrounding the source code that manipulates the Aibo to reverse engineer programs that allow owners to customize voice recognition by their Aibos. The hobbyist revealed neither the decrypted source code nor the code he used to defeat the encryption, freely distributed his custom programs, and made no profit. Nevertheless, Sony claimed that the act of circum–venting the encryption surrounding the source code violated the DMCA and demanded that the hobbyist remove his programs from his website. Responding to public outcry, Sony ultimately permitted the hobbyist to repost some of his programs (on the understanding that Sony will have the rights of commercial development in the programs). The incident, however, illustrated Sony’s willingness to invoke the DMCA in situations with no relationship to “piracy.” David Labrador, "Teaching Robot Dogs New Tricks,"Scientific American, Feb. 12, 2002. http://www.sciam.com/explorations/2002/012102aibo/ Blizzard Sues bnetd.org Section 1201 has been invoked in a federal lawsuit by Vivendi-Universal's Blizzard Entertainment video game division against a group of volunteer game enthusiasts who used reverse engineering to create free and open source software to allow owners of Blizzard games to play the games over the Internet. The software, a server called "bnetd," provides an alternative to Blizzard's own Battle.net servers. Both Battle.net servers and bnetd servers are available for free and both allow owners of Blizzard games to play with each other across the Internet. The group of volunteers decided to create bnetd to overcome difficulties that they had experienced in attempting to use Battle.net. The bnetd software is freely distributed, open source, and non-commercial. Blizzard filed suit in St. Louis to bar distribution of bnetd, alleging that the software is a circumvention device that violates the DMCA. According to Blizzard, the bnetd software has been used by some to permit networked play of pirated Blizzard games. Whether or not that is true, the developers are not using the software for that purpose, nor was the software designed for that purpose. The software has numerous legitimate uses for owners of Blizzard games. Whatever else may be said about the bnetd software, it is plainly not a “black box” piracy device. (EFF is representing the bnetd developers.) Howard Wen, “Battle.net Goes To War,”Salon, April 18, 2002. http://archive.salon.com/tech/feature/2002/04/18/bnetd/ EFF case archive. http://www.eff.org/IP/Emulation/Blizzard_v_bnetd/ Sony Attacks Playstation “Mod Chips” Apart from using the DMCA against vendors of personal computer emulators of Sony’s Playstation, Sony has sued a number of manufacturers of so-called “mod chips” for alleged circumvention under the DMCA. In doing so, Sony has been able to enforce a system of geographical regional restrictions that raises significant anticompetitive issues. So-called “mod chips” are after-market accessories that modify Playstation consoles to permit games legitimately purchased in one part of the world to be played on a games console from another geographical region. Sony has sued mod chip manufacturers in the U.S., the U.K., and Australia. In the U.S., Sony sued Gamemasters, Inc., distributor of the Game Enhancer peripheral device, which allowed U.S. Playstation users to play games purchased in Japan and other countries. Although there was no infringement of Sony’s copyright, the court granted an injunction under the DMCA’s anti-circumvention provisions, effectively banning the use of a technology that would permit users to use legitimately-purchased non-infringing games from other regions. Recognizing the anti-competitive potential of the region playback control system, the Australian anti-trust authority, the Australian Consumers and Competition Commission intervened in a case Sony ultimately won against an Australian mod chip manufacturer under the Australian equivalent of the DMCA’s anti-circumvention provisions. Sony has argued that mod chips can also be used to enable the use of unauthorized copies of Playstation games. But most Playstation mod chips are not “black box” devices suitable only for piracy. The potential illegitimate uses must be weighed against legitimate uses, such as defeating Sony’s region coding system to play games purchased in other countries. “Sony Playstation ruling sets far-reaching precedent,”New Scientist, Feb. 22, 2002 http://www.newscientist.com/news/news.jsp?id=ns99991933 Sony Computer Entertainment America Inc. v. Gamemasters, 87 F.Supp.2d 976 (N.D. Cal. 1999). David Becker, “Sony Loses Australian Copyright Case,” CNET News, July 26, 2002. http://news.com.com/2100-1040-946640.html Apple Harasses Inventive Retailer When Other World Computing (OWC), a small retailer specializing in Apple Macintosh computers, developed a software patch that allowed all Mac owners to use Apple’s iDVD software, they thought they were doing Apple’s fans a favor. For their trouble, they got a DMCA threat from Apple. Apple’s iDVD authoring software was designed to work on newer Macs that shipped with internal DVD recorders manufactured by Apple. OWC discovered that a minor software modification would allow iDVD to work with external DVD recorders, giving owners of older Macs an upgrade path. Apple claimed that this constituted a violation of the DMCA and requested that OWC stop this practice immediately. OWC obliged. Rather than prevent copyright infringement, the DMCA empowered Apple to force consumers to buy new Mac computers instead of simply upgrading their older machines with an external DVD recorder. Declan McCullagh “Apple: Burn DVDs—and We’ll Burn You,” CNET News, Aug. 28, 2002. http://news.com.com/2100-1023-955805.html 6. DMCA becomes general purpose ban on computer network access In a different type of misuse, the DMCA’s anti-circumvention provisions have recently been utilized as a general-purpose prohibition on computer network access. Several federal “anti-hacking” statutes already protect computer network owners from unauthorized intrusions. These include the Computer Fraud and Abuse Act, the Wiretap Act, and the Electronic Communications Privacy Act. In addition, the common law doctrine of trespass to chattels has also been widely used for this purpose. However, unlike each of these regimes which seek to balance important public policy goals by only outlawing behavior that meets certain conditions and causes significant financial harm to computer owners, the DMCA contains no financial damage threshold. Given the very specific existing statutory regimes that regulate this type of behavior, it is clear that Congress did not intend that the DMCA would be used in this way to create a new and absolute prohibition on accessing computer networks in the absence of any type of copyrighted work. Disgruntled Ex-employer Sues For Unauthorized Network Access In April 2003, an automated stock trading company sued a former contract programmer under the DMCA, claiming that his access to the company’s computer system over a password-protected Virtual Private Network tunnel connection was an act of circumvention. Pearl Investments had employed the programmer to create a software module for its software system. In order to complete the work remotely, the programmer connected a separate server to the company’s server, to which he connected from a VPN tunnel from his office. Although the contractor created a very successful software module for the company, the relationship turned frosty after the company ran into financial difficulties and terminated the contractor’s contract. The company sued the contractor when it discovered the contractor’s server connected to the its system, claiming electronic trespass, violation of the anti-hacker legislation, the Computer Fraud and Abuse Act (CFAA) and violation of the DMCA’s anti-circumvention provisions. Pearl claimed that it had taken away the authorization it had previously given to the contractor to access its system through the password-protected VPN and that the VPN connection was therefore unauthorized. The Court rejected the company’s electronic trespass and CFAA claims due to lack of evidence of any actual damage done. Even though the second server was not being used by the programmer at the time, and its hard drive had been accidentally wiped, the court agreed with Pearl that the existence of the VPN was a prohibited circumvention of a technological protection measure that controlled access to a system which contained copyrighted software. As the DMCA has no harm threshold, the anti-circumvention provisions are open to misuse by unscrupulous companies who seek to avoid paying former employees or contractors by revoking authority previously granted and then alleging circumvention. Pearl Investments LLC v. Standard I/O, Inc., 257 F. Supp. 2d 326 (D.Me., April 23, 2003). 7. Conclusion Five years of experience with the “anti-circumvention” provisions of the DMCA demonstrate that the statute reaches too far, chilling a wide variety of legitimate activities in ways Congress did not intend. As an increasing number of copyright works are wrapped in technological protection measures, it is likely that the DMCA’s anti-circumvention provisions will be applied in further unforeseen contexts, hindering the legitimate activities of innovators, researchers, the press, and the public at large. EFF would like to thank the following individuals who have helped to create and update this publication: the Samuelson Law, Technology & Public Policy Clinic, Deirdre Mulligan, Nicky Ozer, and Nicolai Nielsen. [1] For examples of Congress’ stated purpose in enacting the DMCA’s anti-circumvention provisions, see 144 Cong. Rec. H7093, H7094-5 (Aug. 4, 1998); Senate Judiciary Comm., S. Rep. 105-190 (1998) at 29; Judiciary Comm., H. Rep. 105-551 Pt 1 (1998) at 18; House Commerce Comm., H. Rep. 105-551 Pt 2 (1998) at 38. [2] See WIPO Copyright Treaties Implementation Act and Online Copyright Liability Limitation Act: Hearing on H.R. 2281 and H.R. 2280 before the House Subcomm. on Courts and Intellectual Prop., 105th Cong., 1st sess. (Sept. 16, 1997) at 62 (testimony of Asst. Sec. of Commerce and Commissioner of Patents and Trademarks Bruce A. Lehman admitting that section 1201 went beyond the requirements of the WIPO Copyright Treaty). [3] For a full description of the events leading up to the enactment of the DMCA, see Jessica Litman, Digital Copyright 89-150 (2000). [4] See Pamela Samuelson, Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to be Revised, 14 Berkeley Technology L.J. 519, 537-57 (1999) (http://www.sims.berkeley.edu/~pam/papers.html) [5] See Professor Ross Anderson, Cambridge University, Declaration in Felten v. RIAA (Oct. 22, 2001), describing ways in which the DCMA is suppressing research into security weaknesses in SDMI watermarking technology: (http://www.eff.org/IP/DMCA/Felten_v_RIAA/20011022_anderson_decl.pdf). [6] Mainstream Loudoun v. Board of Trustees, 24 F.Supp.2d 552 (E.D.Va, 1998). [7] 111 F. Supp. 2d. 294 (S.D.N.Y. 2000), aff’d 273 F.3d 429 (2d Cir. 2001). [8] Lexmark International, Inc. v. Static Control Components, Inc., (E.D. Ky Civil Action No. 02-571 KSF, unreported decision, February 27, 2003), available at EFF’s website at: http://www.eff.org/Cases/Lexmark_v_Static_Controls/ [9] The Chamberlain Group, Inc. v. Skylink Technologies, Inc., (N.D. Ill., Civil Action No. 02 C 6376). Complaint, Plaintiff’s Motion for Summary Judgment and Defendant’s Opposition to Motion for Summary Judgment, available at EFF’s website at: http://www.eff.org/Cases/Chamberlain_v_Skylink/ [10] Sony Computer Entertainment, Inc. v. Connectix Corporation, 203 F.3d 596 (9th Cir. 2000). -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas,then each of us will have two ideas" George B. Shaw From monica at sarai.net Mon Oct 6 23:22:07 2003 From: monica at sarai.net (Monica Narula) Date: Mon, 06 Oct 2003 17:52:07 -0000 Subject: [Commons-Law] another argument Message-ID: Here's an article from the NY times about why we all believe in sharing - because we dont have to face the fact that we are thieves... ON THE CONTRARY Where Nobody Knows You're a Music Thief By DANIEL AKST Published: October 5, 2003 MAGINE that you sell newspapers on the honor system. You put some papers out on a table, along with a can for the money. It would surprise hardly anyone if, at the end of the day, more papers were taken than were paid for. But Dan Ariely, a professor of media and management at the Massachusetts Institute of Technology who has studied people's online behavior, says that when experimenters who actually tried this mounted a mirror above the newspapers, more people left money when they took a paper. Apparently, many of us can be shamed into honesty. That's the trouble with the Internet. If it's a place where nobody knows you're a dog, as a New Yorker cartoon once said, then it's also a place where nobody knows you're a crook, either. Even you may not know. Anonymity allows honest people to sustain a higher level of dishonesty without guilt, as is obvious to many people who have tried online dating. Nothing captures this phenomenon better than Internet music sharing. What's remarkable about the controversy over music sharing is not how many people are involved - although the number is certainly large - but rather their fervent rationalizing. Internet music sharers, and their defenders, have variously argued that the music industry is evil, that CD's are too expensive and that record companies have brought this upon themselves by failing to offer their wares online. Even stranger than these tortured justifications is the willingness of parents and others in polite society to acquiesce. After all, Internet music sharing is "pretty clearly a copyright violation," says Joseph P. Liu, an assistant professor at Boston College Law School and an intellectual property specialist. It does not matter if the music business is tasteless, oligopolistic or foolish, as some of its critics contend. Even the greedy and the oafish enjoy the protection of the law. How is it that otherwise law-abiding citizens do not seem to mind? One reason, Professor Ariely says, is self-deception: "People tell themselves stories they like to hear to justify what they're doing, so they can get something for nothing." That's why the mirror was so effective in the experiment; it impaired the self-deception of those who would steal a newspaper. Moreover, he says, people's willingness to pay is strongly tied to their sense of fairness about price. Consumers know that the cost of producing a CD is low, and because the music shared online is incorporeal, why should anyone mind if they don't pay? The reason we should all mind is that Internet music sharing represents a profound assault on the very idea of intellectual property. Today it's music, but tomorrow it will be movies and then books, and the justifications will be the same. The implications should be obvious to producers of intellectual property, but the outcry has been muffled in part because universities have come to own and operate so much of the nation's intellectual life. Many academic intellectuals, who do not seem to like business much anyway, derive relatively little income directly from their writings. Instead, they hope to profit from their intellectual output by attaining tenure and renown. If you live on an academic paycheck - instead of royalties - then the free electronic distribution of your scholarly works is probably preferable to having a university press print 500 copies bound directly for the deepest library stacks. The absurd Robin Hood narrative that has sprung up around music sharing only obscures what is happening: that a large group of mainly middle-class individuals are not just breaking the law, but also attacking the legal concept that is essential to freedom and prosperity in the information age. Mirror, mirror on the wall, what's the fairest thing of all? The answer is probably authentication. Sooner or later we will need to know who everyone on the Internet is, and who confirmed their identities. Internet access providers who admit unauthenticated users will have to be shut out, even if that means shutting out whole countries. In such a world, there would be no doubt about who was violating copyright laws or otherwise misusing the electronic commons. It's sad, I know. The ability to shed one's identity online seemed a dream for a while, but as the poet Delmore Schwartz reminds us, "in dreams begin responsibilities." -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20031006/f3e7d86d/attachment.html From devilspot at yahoo.com Fri Oct 10 15:45:05 2003 From: devilspot at yahoo.com (protima pandey) Date: Fri, 10 Oct 2003 10:15:05 -0000 Subject: [Commons-Law] Critics Fear Database Bill Will Hinder Research Message-ID: <20031010022248.28278.qmail@web13805.mail.yahoo.com> http://www.foxnews.com/story/0,2933,99496,00.html Copiers of online databases often cite the US SC Fiest decision to legalise their activities.Republican administrations harsh "sweeping" reform probably to counter the same. (Big Arnie, the new blue-eyed boy for the republican party, too has grand plans to clean Caalleefornia!!) Read on.... Protima ------------------------------------------------------------------------------------------------ Critics Fear Database Bill Will Hinder Research Thursday, October 09, 2003 By Kelley Beaucar Vlahos WASHINGTON � Critics warn that under new federal legislation, writers and Web designers could be hauled into court over something as simple as publishing a list of local sporting events or creating a Web site offering consumers price comparisons on car parts. Though the Database and Collections of Information Misappropriations Act (search) was only introduced Thursday, special interests have been lining up on either side to sing its praises or curse its existence. The legislation, crafted by members of the House Judiciary and Energy and Commerce Committees, seeks to place legal protections on online and offline databases. In short, the measures contained in the bill would prevent the reproduction of information gathered in databases for commercial and competitive purposes. �Given the important role that databases play in our capital markets, law enforcement, and science and research, it is critical that database producers be able to protect their investments from free riders and pernicious commercial exploitation,� said Keith Kupferschmid, vice president of the Software and Information Industry Association (search), and one of the witnesses asked to testify last month about the proposed legislation. Kupferschmid, whose association represents companies that maintain huge databases and publishing houses like LexisNexis and Thomson Publishing, said database protections would ensure that the industry, which has grown dramatically since the advent of the Internet (search), would continue to flourish. �These companies and organizations have invested hundreds of millions of dollars to collect and organize information contained in thousands of databases,� he said. �These investments are worthy and deserving of protection.� But opponents say the encroaching legislation would prevent scientists from engaging in research and children from doing book reports. The legislation is so broadly written, critics say, that college professors writing research papers based on scientific databases or non-profit organizations publishing statistics on their Web sites could be subject to penalties. �If you check out a book from the library, all the data in that book would be protected,� said Joe Rubin, spokesman for the U.S. Chamber of Commerce (search), which has come out against the measure. "What we�re seeing is a flawed concept,� said Kevin McGuiness, executive director of NetCoalition (search), a group of technology companies, including Internet service providers, who don�t want to be held liable if protected information is made available online under new regulations. �The bill still lacks two key ingredients � a problem to fix and a justifiable solution,� said McGuiness, who acknowledged that while intellectual property is protected under a series of existing laws, the dispute continues over whether compiled data can be copyrighted or is part of the public domain. The American Civil Liberties Union (search) and the American Library Association (search), have also joined the debate, saying the measure would likely be unconstitutional. But Mark Bohannan, a senior vice president of SIAA, said the language is not as vague as its opponents are making it out to be, and that it only prevents commercial use of republished data, and makes exemptions for data uses by non-profits, scientific and research organizations, and most news reporting. Proponents insist the new law is meant to prevent someone from making a quick buck off of information compiled and sold through fee-for-service entities like LexisNexis (search). LexisNexis, for a subscription price, offers everything from extensive news archives to an online law library. "What our folks are looking for is to make sure that when a company has invested time and resources into developing a quality database that there�s no free riding going on, that they won't be purloined or pirated in a way that hurts their investment," Bohannon said. Rubin said in 15 years there have been no serious cases in which databases were badly breached, but in the last several years, companies have recognized the value of putting a price tag on data. �Owners of archival databases want to extract more rent for the use of their databases,� he said, adding that lawyers have discovered "an easy retirement plan" from the massive litigation that could be brought under the broad authority of the law. Staff members on both committees admit hashing out the language of the bill has been a �squabble,� and not necessarily along party lines, either. While Energy and Commerce Chairman Billy Tauzin, R-La., and Judiciary Committee Chairman James Sensenbrenner, R-Wis., have been generally receptive to pulling together some sort of compromise legislation to protect databases, others think Congress is way off the mark in this regard. �I believe that Congress should not create property rights in facts,� said Rep. Cliff Stearns, R-Fla., who added that the terms may be so ambiguous as to put a �chill� on the development of new databases, as well as research. --------------------------------- Do you Yahoo!? The New Yahoo! Shopping - with improved product search -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20031010/ea3770e5/attachment.html From chibal at vsnl.net Sat Oct 11 02:56:08 2003 From: chibal at vsnl.net (chibal at vsnl.net) Date: Fri, 10 Oct 2003 21:26:08 -0000 Subject: [Commons-Law] Fwd: dissolving opencontent digest Message-ID: <934a98fa1d.8fa1d934a9@vsnl.net> dear friend, please unsubscribe me from your list since i now live in a place where i cant access mail regularly. many thanks, chitra From lawrenceliang99 at yahoo.com Tue Oct 14 09:46:46 2003 From: lawrenceliang99 at yahoo.com (Lawrence Liang) Date: Mon, 13 Oct 2003 21:16:46 -0700 (PDT) Subject: [Commons-Law] M S Swaminathan on patents Message-ID: <20031014041646.86352.qmail@web13601.mail.yahoo.com> hi all forwarding an interesting message form SWolly lawrence Dear all, Todays Hindu has a interesting article by MS Swaminathan on the wonders of Patents as it will save the livelihoods of India's millions --urging the scientists to support patent banks. Thought the arguments there would add to our debate. This is the same person who basically "stole" in the 70s much of the rice varieties with support of the US aid to take to the Int. Rice Research Institute in Manila and in return was honored with several national honors for the green revolution. Dr. Richaria who was attempting to protect the use by poor farmers of non-hybrid specieis was side lined and demoted. Much later, as part of kalpavish we visited a beeag bachao andolan in the Garwal where the farmers there attampted to save their local variesites from the large companies of seeds and also fertilizers. __________________________________ Do you Yahoo!? The New Yahoo! Shopping - with improved product search http://shopping.yahoo.com From jeebesh at sarai.net Tue Oct 14 09:33:21 2003 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Tue, 14 Oct 2003 09:33:21 +0530 Subject: [Commons-Law] Philosophers are discussing high journal prices... Message-ID: <200310140933.21181.jeebesh@sarai.net> From: Philosophers are discussing high journal prices (low by STM standards) and open access. The discussion seems to have started in late September when Brian Weatherson posted some philosophy journal prices to his blog. Comments to the posting criticized the high price of Synthese ($1,652/year for institutions, $70 for individuals, from Kluwer). This elicited a detailed and undefensive reply from John Symons , the Synthese editor, who has brought down the price during his tenure and considered open access. There are now further thoughts and comments on the Crooked Timber blog. (Thanks to Klaus Graf.) (10/11/2003 7:54:41 AM) From sunil at mahiti.org Sun Oct 19 06:30:04 2003 From: sunil at mahiti.org (Sunil Abraham) Date: 19 Oct 2003 06:30:04 +0530 Subject: [Commons-Law] Linux's Hit Men Message-ID: <1066525209.764.10.camel@localhost> Hmmmm...the best bit: "Or maybe, as some suggest, the foundation wants GPL-covered code to creep into commercial products so it can use GPL to force open those products" Sunil Linux's Hit Men http://www.forbes.com/home/2003/10/14/cz_dl_1014linksys.html Daniel Lyons, 10.14.03, 7:00 AM ET NEW YORK - In the world of "free" open source software, there is no greater villain than SCO, owner of the Unix operating system. The Lindon, Utah, company has outraged Linux lovers by suing IBM (nyse: IBM - news - people ), claiming IBM stole Unix code and put it into Linux. Some fear the lawsuit by SCO (nasdaq: SCOX - news - people ) will impede the adoption of Linux. But the spread of Linux could be hurt by another group--and ironically, it's the free-software proponents themselves. For months, in secret, the Free Software Foundation, a Boston-based group that controls the licensing process for Linux and other "free" programs, has been making threats to Cisco Systems (nasdaq: CSCO - news - people ) and Broadcom (nasdaq: BRCM - news - people ) over a networking router that runs the Linux operating system. The router is made by Linksys, a company Cisco acquired in June. It lets you hook computers together on a wireless Wi-Fi network, employing a high-speed standard called 802.11g. Aimed at home users, the $129 device has been a smash hit, selling 400,000 units in the first quarter of this year alone. But now there's a problem. The Linux software in the router is distributed under the GNU General Public License (GPL), which the Free Software Foundation created in 1991. Under the license, if you distribute GPL software in a product, you must also distribute the software's source code. And not just the GPL code, but also the code for any "derivative works" you've created--even if publishing that code means anyone can now make a knockoff of your product. Not great news if you're Cisco, which paid $500 million for Linksys. In Cisco's case, it's even trickier, because the disputed code resides on chips that Linksys buys from Broadcom. So now Cisco is caught between the Free Software Foundation and one of its big suppliers. For several months, officials from the Free Software Foundation have been quietly pushing Cisco and Broadcom for a resolution. According to Free Software Foundation Executive Director Bradley Kuhn, the foundation is demanding that Cisco and Broadcom either a) rip out all the Linux code in the router and use some other operating system, or b) make their code available to the entire world. And if they balk? Kuhn raises the threat of legal action. "We defend the rights protected by the GPL license," he says. "We have legal teeth, so if someone does not share and share alike, we can make them obey the rules." The legal teeth belong to Eben Moglen, a Columbia Law School professor who acts as pro bono counsel for the foundation. Moglen says his chats with Cisco have been friendly, and he believes the matter will be settled without a court fight. Cisco and Broadcom wouldn't comment. The dispute, which was leaked to an Internet message board, offers a rare peek into the dark side of the free software movement--a view that contrasts with the movement's usual public image of happy software proles linking arms and singing the "Internationale" while freely sharing the fruits of their code-writing labor. In fact, the Free Software Foundation runs a lot of these "enforcement actions." There are 30 to 40 going on right now, and there were 50 last year, Kuhn says. There have been hundreds since 1991, when the current version of the GPL was published, he says. Tracking down bad guys has become such a big operation that the Free Software Foundation has created a so-called Compliance Lab to snoop out violators and bust them. Who pays for this? The 12-employee Free Software Foundation has limited resources. So it seeks donations. And sometimes it collects money from companies it has busted. Last year, the foundation alleged that OpenTV, a San Francisco company that ships a set-top box containing Linux, was violating the GPL. The drama took months to resolve and ended with OpenTV writing a check for $65,000 to the Free Software Foundation. "They paid us a very substantial payment for our time and trouble," Moglen says. Sometimes it's the other way around--the foundation gets paid by private companies for whom it acts as a sort of hired enforcer. Last year a Swedish software company called mySQL asked for help resolving a dispute with NuSphere, a subsidiary of Progress Software (nasdaq: PRGS - news - people ). The companies had made a deal to work on software that would include mySQL's GPL-licensed database program. A dispute arose over contract issues, and also over the GPL, which mySQL claimed NuSphere had violated. In the end, Progress resolved the matter by walking away from the partnership. Afterward, mySQL made a $25,000 donation to the Free Software Foundation. Was this payback? "I won't say that," says Marten Mickos, chief executive of mySQL. "But of course, why would we give them money if not as a sign of gratitude?" The mySQL versus NuSphere squabble demonstrates another risk: These disputes might scare companies away from using open source software. Joseph Alsop [PersonId=142453], chief executive of Progress, reckons the fiasco with mySQL cost his company $10 million in lost development and marketing work. Now he says he is cautious about working with GPL software. Instead, Progress uses an open source database program distributed under the less onerous Berkeley Software Distribution license. In some ways, these Free Software Foundation "enforcement actions" can be more dangerous than a typical copyright spat, because usually copyright holders seek money--say, royalties on the product that infringing companies are selling. But the Free Software Foundation doesn't want royalties--it wants you to burn down your house, or at the very least share it with cloners. Or maybe, as some suggest, the foundation wants GPL-covered code to creep into commercial products so it can use GPL to force open those products. Kuhn says that's nuts--"pure propaganda rhetoric." But he concedes that his foundation hates the way companies like Oracle (nasdaq: ORCL - news - people ) and Microsoft (nasdaq: MSFT - news - people ) generate billions of dollars by selling software licenses. "We'd like people to stop selling proprietary software. It's bad for the world," Kuhn says. So far, none of the Free Software Foundation's targets have decided it is bad for the world and gone to court. This despite the fact that the foundation has $750,000 in the bank and one lawyer who works for free, part time, when he's not teaching classes at Columbia University. Will Cisco and Broadcom be the first? Probably they'll decide, like everyone else, that it's cheaper to settle than to fight. Such a pity, comrade -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas,then each of us will have two ideas" George B. Shaw From lawrenceliang99 at yahoo.com Wed Oct 15 13:08:56 2003 From: lawrenceliang99 at yahoo.com (Lawrence Liang) Date: Wed, 15 Oct 2003 00:38:56 -0700 (PDT) Subject: [Commons-Law] M S Swaminathan article Message-ID: <20031015073856.99271.qmail@web13606.mail.yahoo.com> wah wah, now patents can add to world peace, kitne ucche vichaar hai lawrence ******** http://www.hindu.com/2003/10/13/stories/2003101302021000.htm Patents for peace and happiness By M.S. Swaminathan Indian scientists should be encouraged to assign their patents to a bank to be used for the common good. FROM THE beginning of time, science and technology have been key elements in the growth and development of societies. Entire eras have been named for the levels of their technological sophistication: the stone age, the bronze age, the iron age, the age of the sail, the age of steam, the jet age, the computer age, and the age of genomics and proteomics. We are now on the threshold of the nano-age. Unfortunately, the scientific revolution is taking place at a faster pace than social evolution. As a result, there are growing divides � demographic, digital, gender, genetic, technological and economic. The rich-poor divide is widening and jobless economic growth, best described as joyless growth, is spreading. Although skin colour-based apartheid has ended, technological and economic apartheid is growing. The transformation in the agricultural scenario is the product of a blend of professional skill, political will and farmers' labour. Unfortunately we are tending to forget that balanced diets and safe drinking water constitute the first among the needs of a human being. We conveniently find scapegoats such as the World Trade Organisation for problems arising from lethargy and inaction at home. In the period from Marrakesh to Cancun, 1994 to 2003, there has been very little effort and investment in enhancing agricultural efficiency and competitiveness. Indian agriculture is becoming a gamble in the market, in addition to being a gamble with the monsoon. The failure of the Cancun negotiations has provided a breather to set our house in order. There is no time to relax on the front of enhancing agricultural competitiveness, since agriculture is not only the backbone of our food, livelihood and ecological security systems but is also the very soul of our national sovereignty. We need urgently in rural areas revolutions in productivity, quality, value-addition and diversification. Quality literacy in terms of developing the know-how and infrastructure needed for the adoption of appropriate sanitary and phytosanitary measures and codex alimentarius standards is an urgent need. Poverty will persist unless major progress is achieved in making unskilled workers skilled, and a third of the rural population is shifted from on-farm to non-farm enterprises. The ongoing micro-credit supported micro-enterprises revolution can be sustained only if supported by linkages with both markets and with universities and research institutions. The world is facing a predicament that is three dimensional. Over three billion women and men the world over, struggling to survive with an income of less than $2 per capita a day, are crying for peace and equitable economic development. Countries in southern Africa, and Ethiopia, Afghanistan and North Korea are in the midst of serious famines. In India, the severe debt burden of small farmers in some areas takes the form of suicides. The Roman philosopher Seneca said 2,000 years ago, "A hungry person listens neither to reason nor religion, nor is bent by any prayer." Thus one aspect is the craving for peace, and development which is equitable in social and gender terms. On another side, there is a growing violence in the human heart. Terms such as ethnic cleansing and biological and biochemical terrorism are being widely used in the media. The revival of smallpox is becoming a possibility. The nuclear peril has again raised its head. There are over 30,000 nuclear weapons in the arsenals of major and minor nuclear <243>powers. The availability of large quantities of highly enriched uranium increases opportunities for nuclear adventurism. The third side is the spectacular progress of science and technology, resulting in the increasing technological divide between industrialised and developing countries. If access to technology has been a major cause of economic inequity in the past, the challenge now lies in enlisting technology as an ally in the movement for social and gender equity. This is where our universities can play a catalytic role. In the report of the International Commission on Peace and Food, which I chaired, released in 1994, we had anticipated a substantial peace dividend, following the end of the Cold War and collapse of the Berlin Wall. This has not only not materialised, but also expenditure on military hardware and internal security is increasing day by day, particularly after the tragic events of September 11, 2001 in the United States and similar events in our country, including the recent deplorable attempt on the life of the Chief Minister of Andhra Pradesh, Chandrababu Naidu. Contemporary developmental challenges, particularly those relating to poverty, gender injustice and environmental degradation are indeed formidable. However, the remarkable advances now taking place in information and communication technology, space and nuclear technologies, biotechnology, agricultural and medical sciences, and renewable energy and clean energy technologies provide hope. Genomics, proteomics, the Internet, space and solar technologies and nanotechnology are opening up uncommon opportunities for converting the goals of food, health, literacy and work for all into reality. It is, however, clear that such uncommon opportunities can be realised only if the technology push is matched by an ethical pull. This is essential for working towards a world where both unsustainable lifestyles and unacceptable poverty become features of the past. Also, there is a growing mismatch between the rate of progress in science, particularly in the area of molecular biology and genetic engineering, and the public understanding of the short and long-term implications. There is an urgent need for institutional structures, which can inspire public confidence that the risks and benefits are being measured in an objective and transparent manner. Scientists and technologists have a particularly vital role to play in launching an ethical revolution. The Pugwash movement, which I now have the privilege to head, is an _expression of the social and moral duty of scientists to promote the beneficial applications of their work and prevent their misuse, to anticipate and evaluate the possible unintended consequences of scientific and technological development, and to promote debate and reflection on the ethical obligations of scientists. Rabelais once said, "science is but the conscience of the soul". It is the enduring task of our universities, which are the breeding grounds of leaders who will shape our future, to ensure that science and technology are employed for the benefit of humankind and not its destruction. We now have a Global Convention on Biological Diversity to help in the conservation and sustainable and equitable use of biodiversity. We need urgently a similar Convention on Human Diversity. While a Convention alone will not be able to halt the growing intolerance of diversity, particularly with reference to religion and political belief, it will help foster a mindset that regards diversity as a blessing and not a curse. Both biodiversity and human diversity are essential for a sustainable future. The human genome map shows that over 99.9 per cent of the genomic constitution is the same in all members of the human family. Our universities should help to spread genetic literacy. It is also necessary to reflect on methods of giving meaning and content to the ethical obligations of scientists in relation to society. The World Conference on Science held at Budapest in 1999 called for a new social contract between scientists and society. With a rapidly expanding Intellectual Property Rights (IPR) atmosphere in scientific laboratories, the products of scientific inventions may become increasingly exclusive in relation to their availability, with access being limited to those who can afford to pay. The rich-poor divide will then increase. How can we develop a knowledge management system, which will ensure that inventions and innovations of importance to human health, food, livelihood and ecological security benefit every child, woman and man, and not just the rich? Probably all our universities, under the umbrella of the University Grants Commission, could set up a patents bank for peace and happiness. Scientists and technologists from all our universities and public research institutions should be encouraged to assign their patents to such a bank, so that the fruits of scientific discoveries are available for the public good. Such a Patents for Peace and Happiness Bank would stimulate scientists to consider themselves trustees of their intellectual property, sharing their inventions with the poor in whose lives they may make a significant difference for the better. The French Mathematician, Marquis de Condorcet, who was a contemporary of Thomas Malthus, said over two centuries ago that the human population will stabilise itself if children are born for happiness and not just for existence. The Government of Bhutan has taken the lead in developing a Gross National Happiness Index, based on the economics of human dignity, love of art and culture and commitment to spiritual values. Making all well-to-do members of the human family regard themselves as trustees of their financial and intellectual property, will be essential for fostering a human happiness movement. The 21st century holds great promise for advancing the human condition provided there is an appropriate blend of technology and public action. (Based on the convocation address delivered by the writer at the University of Madras recently.) (SB: and the rice controversy still goes on...as the following link suggests) http://www.indiatogether.org/opinions/guest/riceigkv.htm Our seed, their profit The proposed gift of Indian intellectual assets shows how the nation's interests are thwarted routinely in the world of genetically engineered crops, says Vaijayanti Gupta. December 2002 - Rice research in India faces a new danger from a series of recent developments at the Indira Gandhi Krishi Vidyalaya (IGKV), involving the administration, the scientists, the agri-business company Syngenta and IGKV's collection of the 20000 indigenous varieties of rice seeds that are available at the institute. These seeds or 'germ-plasms' were painstakingly collected by the famous Indian rice researcher Dr. Richaria who documented facts about each seed variety in minute detail from the farmers. Recently, a controversy arose over an agreement between IGKV and the agribusiness multinational Syngenta at Raipur, Chattisgarh. IGKV Vice Chancellor V K Patil agreed to sell all of the valuable rice germ plasms collected by Dr. Richaria to Syngenta. A first round of informal talks took place between the IGKV scientists and Syngenta representatives on October 23rd 2002 in Aurangabad; these discussions centered on obtaining funds from Syngenta to conduct combined research in IGKV for the development of hybrid and drought resistant seeds using the Indian rice plasm varieties. These would be marketed by Syngenta and a 'fixed' proportionate royalty given to IGKV from the revenues. The logos of both the IGKV and Syngenta would appear on products. Following a huge media outcry and protests by civil society organizations across the state, Dr. Patil was summoned for explanation by the Chief Minister of Chattisgarh. He disclosed that there were disagreements on the terms and conditions of the Memorandum of Understanding initially drafted by Syngenta and rigorous revisions keeping IGKV's interests in mind were needed. However, the VC refused to make the final draft of the MoU public. The move of opening the treasure of rice seeds collection to Syngenta was opposed by a few agricultural scientists. The Director of the Hyderabad Rice Research Centre, Dr. B Mishra, was a prominent figure among those critical of the agreement. There are serious discrepancies in the claims made by the VC of IGKV, and several logical questions are being ignored. While the VC claimed that the talks with Syngenta were preliminary, an earlier press release by IGKV had claimed that these were at an advanced state. Why were the initial talks not held in Raipur, where the IGKV is located and where the public awareness on the issue is far higher? Why is the MoU - that the VC claims has been drafted keeping the interests of the IGKV and Indian farmers forefront - not being released to the public? What is the need to share the research with Syngenta, when the same competence of research on rice is present amongst the scientists in IGKV? At other times, Dr Patil has also claimed that under no circumstance will the IPR on rice research be compromised with and sold to any company. Despite this, there have been moves to transfer Dr Richaria's collection to the International Rice Research Institute (in the Phillipines). Dr. Richaria had during his lifetime opposed this strongly, believing that the IRRI would not serve Indian interests. Syngenta's history of controversial involvement in rice research and marketing is well documented. In recent years the much hyped "golden rice' was released, allegedly to benefit rice-eating populations of South East Asia, as the answer to the Vitamin A deficiency in nations where the staple food is rice. In countries such as India, Bangladesh, Indonesia, Vietnam, Thailand and the Philippines, the lack of adequate vitamin A in a rice-based diet causes childhood blindness and up to 1 million deaths a year; genetically modified rice was offered as a plausible solution. However, on scrupulous calculations, it was revealed that to get one's required supply of Vitamin A from golden rice, a child would have to consume absurd quantities of rice each day (9 kg of cooked rice). Moreover the required dose of vitamin A can easily be fulfilled by consuming a few carrots, yams and other vitamin A enriched substitutes. Further, since vitamin A is fat soluble and requires fats and proteins in the body to metabolize it, a malnourished child would not receive the intended benefit from consuimg it. This crucial point was completely ignored by the scientists in Syngenta. Besides this scientific inadequacy, another big controversy stems from the transfer of publicly funded knowledge to private enterprises for profit. The research leading up to golden rice was largely taxpayer-funded, but golden rice is enmeshed in nearly seventy patents owned by several private companies and institutions. Because of the complexity of licensing arrangements the inventors ceded their rights to Greenovation, a biotech spin-off company from the University of Freiburg, which then struck a deal with AstraZeneca (now Syngenta) to gain "freedom-to-operate" and speed up the transfer of the technology to developing countries. Thus Syngenta was able to acquire exclusive commercial control over a technology that was developed with public funding and purportedly pursued for the greater public good. Worse still, Syngenta's projection of the benefits of Golden Rice was challenged even by some of the funders. Syngenta claimed that a single month of marketing delay would cause 50,000 children to go blind. The Rockefeller Foundation which funded some of the research pointed out that this claim was still quite far from established, that the research was inadequate, and that publicity and advertising had gone too far in creating hype around golden rice. The extolling of inconclusive research and appropriation of knowledge for private profit causes great losses both to civil society and public health. Despite widespread controversies over the ill effects on the environment, farming, and health, Syngenta and other agribusiness and biopharma companies continue to develop and market genetically modified products all over the world. When agricultural communities lose ownership of their knowledge and seeds, their socio-economic balance is disturbed significantly. We must evaluate the civil and political values attached to the protection and use of resources. What are the roles of farmers, consumers, scientists, the government, and others in maintaining this balance? These are compelling questions that need to be asked critically and repeatedly. But the records of deals between Indian administrators, the government, and agri-businesses do not suggest that this is taking place. Monsanto's "terminator technology" would dramatically have reduced farmers' rights to save their seeds, and yet it very nearly was introduced into the nation's croplands. Bt Cotton, which arrived with the promise of pest-resistance, instead generated Bt resistant pests; yet the Genetic Engineeriing Approval Committee granted permission for the widespread planting of this crop, and refused to make test results available for public scrutiny. Herbicides like Roundup (Monsanto) are sold in Indian markets despite being banned in the west for their toxicity and health hazards. These examples should alert us to deep flaws in the system. Without a serious regulatory environment, and without established procedures for public awareness and scrutiny, far-reaching decisions are made quietly. Dr. Richaria's seed collection could find a similar fate, as one crisis or another grips the national attention. We can ill-afford the lapses in administration or continuing indifference to outright collusion. Rice, the largest staple crop, is especially strategic; how regulatory environments respond to private attempts at monopolising its genome could determine the path taken with other crops as well. What is at stake is Indian farmers' ability to compete in the global marketplace, the food security of the nation, or the public health of the Indian people. But, more than these, such transactions strike at the very foundation of Indian rural life itself. __________________________________ Do you Yahoo!? The New Yahoo! Shopping - with improved product search http://shopping.yahoo.com From lawrenceliang99 at yahoo.com Wed Oct 15 13:10:01 2003 From: lawrenceliang99 at yahoo.com (Lawrence Liang) Date: Wed, 15 Oct 2003 00:40:01 -0700 (PDT) Subject: [Commons-Law] One more article Message-ID: <20031015074001.30980.qmail@web13607.mail.yahoo.com> * Vaijayanti Gupta December 2002 Dr. Vaijayanti Gupta is a researcher at the United States National Institutes of Health. She was formerly at Syngenta's Torrey Mesa Research Institute in San Diego. also see: http://www.indiatogether.org/agriculture/articles/richaria1.htm >From rice bowl to fruit farms? Meena Menon reports on the decline of Chhattisgarh's agricultural fortunes March 2002: Bansi Yadav is perhaps a typical farmer in Chhattisgarh. He owns two acres and grows high yielding varieties(HYV) of rice. The returns are very less and almost always he has to buy rice to meet his consumption needs. Like most farmers he is in debt and works for daily wages. Many years ago he used to grow a local variety called Gurmatia with fairly good results."I cannot get the seeds of Gurmatia. I have to depend on what the government gives us." Chhattisgarh has often been dubbed rice bowl of Madhya Pradesh. Yet productivity is not very high and after the formation of the new Chhattisgarh state, the chief minister Ajit Jogi has been making repeated statements that "paddy is poverty". There is going to be a new thrust on horticulture if the scientists at the Indira Gandhi Agricultural University(IGAU) at Labhandi, near Raipur, have their way. The vice- chancellor of IGAU, Dr V K Patil, has proposed a plan to cover 5.5 lakh hectare of the state with horticulture crops and this, he said, will generate jobs for 25 lakh people. Horticulture is the agriculture of the future, he stated at a recent seminar at IGAU. At present, Chhattisgarh has 62,000 hectares under horticulture which was a very small area, he said. The state will no longer be a rice bowl but a fruit bowl, remarked a senior scientist. Government officials said rice productivity was 1.4 tonnes per hectare or 14 quintals/ha- the reason being inadequate irrigation. However, according to the University, rice production in Chhattisgarh had increased and this was due to increased acreage under HYVs, increased use of fertilisers and improved production technology. Despite this, average yields remain at 1.6 tonnes per hectare. Compare this to the 1960s when the yield was around one tonne with low fertiliser inputs and no institutional support. According to the old Raipur gazette, in 1967-68, the standard yield of rice was 1065 kg/hectare. The use of HYVs has also led to increased use of fertilisers, loss of biodiversity and farmers becoming dependent on the government machinery for seeds, agricultural inputs and loans. There seems to be a total negation of indigenous varieties except as a source of genetic material. Now the University plans to encourage hybrids which can increase rice production by one or one and a half times per hectare. The Food Insecurity Atlas of India prepared by the UN World Food Programme and the Chennai-based M S Swaminathan Research Foundation has identified Chhattisgarh along with Jharkhand, Gujarat, Rajasthan and Orissa as among the most food insecure states in the country. What happened to this region with its vast genetic diversity in rice? An IGAU report said rice is the main crop of Chhattisgarh and it is grown on 39.91 lakh hectares and covers 77 per cent of the net sown area. Rice is mainly grown under rainfed conditions and the main source of irrigation is canals fed by major, minor and medium irrigation projects which are also dependent on rains. There are about 30,000 wells and 35,000 ponds which provide some small percentage of irrigation. The government is talking of exploiting groundwater resources for double cropping. The region has a low cropping intensity of 121 per cent. The productivity of rice in rainfed areas ranges between 10.0 to 11.0 quintals per hectare whereas it is 16 to 19 quintals per hectare in irrigated areas which is very low compared to the national average and other states, according to IGAU's Status report, 2000. Chhattisgarh suffers from lack of irrigation, and periodic droughts while the average rainfall is 1400 mm. Migration is the norm and the majority of farmers have very small landholdings. The University found that farmers were slow to adopt rice varieties developed and recommended by scientists and launched a Farmers Participatory Breeding Programme in 1998 in collaboration with the International Rice Research Institute(IRRI). It is ironic that Madhya Pradesh produced a top class rice scientist whose plan for increasing rice production was never put into practice. Few know about the pathbreaking contributions made in rice research by Dr R H Richharia whose career was jeopardised more than once by the government's whims and policies. Dr Richharia who was director of the Central Rice Research Institute,(CRRI) Cuttack, had developed clonal propagation of rice. In this method, indigenous varieties could be improved to instill a hybrid vigour in them. Each region had varieties which were suited to the soil, climate and other variations of the area and this was the key to increasing rice production, he maintained. In fact, the only memory of his extensive work is the germplasm bank at IGAU which now contains over 22,500 accessions of rice from Madhya Pradesh, over 19,000 of which were collected under his supervision and called the Raipur collection. He opposed the introduction of the dwarf varieties which he felt were susceptible to pests and would not be suited to Indian conditions and for this he was shunted out of CRRI. Later, he was made agriculture advisor to the Madhya Pradesh government. However, the Madhya Pradesh Rice Research Institute(MPRRI) which he headed, was also summarily shut down. In a paper delivered at a conference on The Crisis in Modern Science in November, 1986, in Malaysia, Dr Richharia said he was convinced that rice productivity in India which had reached a high pitch in ancient times, can be restored by not replacing the existing cultivars which had descended from their original stock passing through many generations in its home environment. It was possible for rice breeders to select resistant high yielding varieties, he said. However, he added, "... But pressure was brought about by the World Bank to close the activities of this Institute(MPRRI) in lieu of offering a substantial financial assistance as I had refused to pass on the entire rice germplasm to IRRI without studying it." In his book, "Our strategy on the Rice Production Front in Madhya Pradesh," he had written that with lower doses of fertilisers and without plant protection measures, the adapted indigenous varieties yield better or remain at par with the dwarf(varieties), grown with high doses of fertilisers and without plant protection measures." And that is what possibly many farmers in Chhattisgarh have discovered for themselves. In 1977, in "A strategy for Rice Production to Ensure Sustained Growth in Madhya Pradesh", Dr Richharia advocated genetically upgrading dominant varieties which could yield 30 to 40 times more rice with the judicious application of fertilisers. He said this could be pursued along with the intensive agriculture programme. In 1975, experiments were carried out to improve select indigenous varieties whose yields were observed to be close to 3000 kg /ha and in some cases twice or even thrice as much. It was felt that these improved selections could be the basis for augmenting rice production in Madhya Pradesh as the varieties were pest resistant and to some extent, drought resistant as well. "Choice of suitable varieties to suit the environment rather than to create environments to suit a given type is the fundamental issue involved," he wrote. After the MPRRI was closed or merged with the state agricultural university in 1978, rice research continued under the World Bank supported National Agricultural Research Project(NARP), which aimed at strengthening regional research capabilities of state agricultural universities. A report on the impact of NARP, May 1996, said rice productivity increased by 41 per cent during the decade long programme and this was due to improved varieties which were resistant to gall midge and bacterial blight which were in an epidemic stage. Under the Intensive Agricultural District Programme, HYVs were first introduced in Raipur in 1966-67. The new variety,TN1 , gave good yields compared to local varieties though it was a drought year. Farmers then took to its cultivation, according to a progress report on IADP in Raipur. Safri 17 was also popular due to its adaptability to local conditions and high yields. Safri 17 was a selection from the several types of Safri grown in the whole of eastern Madhya Pradesh. This variety is widely cultivated and till recently, occupied about 50 per cent of area of all recommended varieties of the state and is included in the seed distribution of the state, according to a report Rice Research in Chhattisgarh 1994, published by IGAU. There is evidence that some indigenous varieties of rice in the region are high yielding, some are even resistant to gall midge which is a major pest threatening rice. Some local dwarf varieties were also identified and tested by the MPRRI. But this vast repository of rice varieties seems to have been given the go by in the race for increased production and developing newer varieties of rice. Dr Richharia's many books are not even kept in the new library at IGAU. Some of his research notes and books are with the department of plant breeding which also looks after the germplasm bank. An encyclopaedia which he was working on, has been taken away by his daughter, claims the University. It is strange that the University does not even have a copy of this voluminous work. Scientists at IGAU do recognise Dr Richharia's contribution but feel traditional varieties cannot be relied upon for high production. Dr M N Srivastav, dean of the Agricultural college which was established in 1961, part of IGAU, said, "Agriculture has advanced to such an extent that talking of improving traditional varieties is obsolete-we have to see if some genetic resources can be used and talk in terms of improving further varieties- working with traditional varieties will be a reverse process," he felt. "Their importance lies in the genes they have to resist pests and adaptability. Rice must yield at least 3 to 4 tonnes/ha otherwise land should be used for something else as 1 or 2 tonnes/ha is mere subsistence." "The yields of the crop are the lowest where the crop originates from. You look at soyabean yields -they are very high. With less than 20 per cent irrigation, mostly from canals and tanks in a region where the evaporation is equal to the transpiration, we do not have the best conditions. Uncertain rainfall is our first enemy- and our yields are less than the national average of more than 2 tonnes per hectare. While the yields are improving, there is not much progress. Irrigation at 16 per cent is hampering the use of fertilisers and insecticides. Farmers are hesitant to use these inputs unless there is assured water supply,"he said. Of the total area of 3.8 million ha under rice, 30 to 40 per cent is under HYVs- but since was there was no survey it was only an estimate, he said. In Raipur which had more irrigation than other places in the state, HYVs occupied about 50 per cent of the area. Mahamaya which was released in 1995, was the most popular variety, he said. "All varieties we release have to be drought resistant. Mahamaya under ideal conditions can yield upto 7 tonnes/hectare but the average yield with irrigation is about 5tonnes /ha, he added. The potential of Safri 17 is only four tonnes per hectare. But a good farmer can get upto 2 tonnes per hectare - the average yield is about 1.6 tonnes/ha." "Our mandate at the university is to have varieties with pest resistant genes and also give stress to short or medium duration varieties as the monsoon does not last for more than 100 days. Horticulture development is also a mandate of the University --We will encourage rice only where the yields are good - in the 21 century, agriculture is an enterprise-wherever it is not productive we will encourage horticulture," explained Prof A.S.R.A. S. Sastri, associate director, research, IGAU. In Chhattisgarh, despite the drought last year, the FCI godowns are full and the prices have dropped to Rs 560 a quintal, he added. The demand for foodgrains and other agricultural products will continue to grow by about 2.5 per cent per annum during the next 10-20 years. The ninth five-year plan estimates that about 230 million tonnes of foodgrain will be needed by 2002. Driven by higher growth in income, the demand for fruits, vegetables, edible oils,livestock products and other processed food products will grow rapidly, according to a lecture by R B Singh, director Indian Agricultural Research Institute, in December 1998. Dr P N Sharma, director extension services, IGAU, said," We try and see if research conducted at the University caters to the needs of the farmers.We have succeeded in introducing double cropping in a mono cropped area. Thanks to the focus on non- rice crops - the area under pulses is increasing and is now at 2 lakh hectares. We are also encouraging farmers to grow vegetables," he said, adding that growing only rice would not be beneficial for the region. According to Rainfed Rice, a sourcebook of best practices and strategies in Eastern India, (IRRI) April, 2000, six states in eastern India, Assam, Bihar, Orissa West Bengal and Madhya Pradesh and Uttar Pradesh account for about 63.3 per cent of the total rice cropped area in the country (26.8million hectares out of 42.3 million hectares)but produce only 48 per cent of the total rice. Though the average yield of the rainfed ecosystem of eastern India is only about 1 tonne/ha (except for West Bengal), its potential is very high as seen from demonstration/on farm trials. Farmers realise only 50 per cent of it due to the non-availability of seed and other timely inputs and lack of awareness about new varieties and improved technologies. Referring to the loss of biodiversity, the book says that the rate of loss of diversity in rice has been slower in the rainfed than in irrigated ecosystem. In rainfed systems, replacement of traditional varieties has been lower. Increased vulnerability due to narrowing of genetic bases has been cited as one of the reasons. Most modern varieties have been developed through hybridisation involving the single dwarfing gene source De geo woo gen(DGWG) which increases the plant's vulnerability to pests and diseases, such as devastation by the brown plant hopper in Kerala in the late 70s and bacterial blight in Punjab in 1980. The sourcebook adds that in the past, varietal development has focused mainly on increasing yield. Lately the focus has widened to include resistance to major pests and diseases. Now quality is also being emphasised. Over the past 35 years, more than 512 high yielding varieties have been released in India. About 67 of these are on the national seed chain but only one third of these 67 have been widely adopted and popularised. However, it states that while modern HYVs have greater yield potential than traditional varieties they were more prone to risk in situations involving stress or epidemics. Traditional cultivars on the other hand, have the capacity to withstand stress and adverse environments. These varieties may have low to moderate yields under adverse conditions whereas modern varieties may fail completely. All this notwithstanding, scientists believe that the dwarf gene caused a revolution in rice in the country. Dr R S Tripathi, director, research at IGAU said that about 70 per cent of the farmers were growing HYVs and about 60 per cent of the state was covered with HYVs. New varieties like IR 36 had brought a revolution in the farming system in backward areas likes Sarguja and Ambikapur. Swarna, another HYV, has replaced Safri 17 to a large extent though the crop was highly susceptible to bacterial blight. "Actually yields have doubled-officially it is around 1200kg/ha but it is much more-otherwise how will there be a rice surplus? Varieties like Kranti and Mahamaya are much sought after from outside the state," he said. Dr B P Choudhary, one of the oldest rice breeders at the University, said, "Initially- 30 years ago-the quality of rice was not the focus keeping in mind the needs of the country. "Traditional varieties were adapted to a particular set of environmental factors-they also respond poorly to fertilisers. Our goal was to increase production at that time and fertilisers were a must for this- so from the yield point of view the local varieties cannot fulfil high production demands which was the need of the hour. Look at IR 36 --globally it is popular and it has wide adaptability. We have not compromised on genetic diversity which is maximum in Chhattisgarh as we have released a number of varieties over the years keeping this in mind. " Dr R K Sahu, senior scientist and plant breeder at IGAU, feels that the University has been successful in introducing top yielders in the region like Mahamaya which is second only to Swarna, a variety from Andhra Pradesh. In the plains, farmers who had irrigation, preferred HYV but in the hills but in the tribal areas- it was still local varieties which held sway. He also said that there was a yield plateau with traditional varieties and they cannot go beyond four tonnes per hectare. It is only the big farmers who can take to HYVs, for smaller farmers the risk is too big and they stick to Safri 17 or traditional varieties. In a zero fertiliser experiment on rice, Dr Sahu said he got a yield of 2.5 tonnes per hectare which was very good and better than the average yield of rice . Rice is the crop for this region and only it can survive, he felt. The fields are bunded and the soils are not drained- all this including the topography is only suited for rice, he maintained. The University evaluated traditional scented varieties of rice their productivity and some of the rice gave yields as high as 24- 30 quintals per hectare. In fact this is a major thrust area, as there is a demand for export. Of the latest rice varieties released by the University, Bamleshwari is resistant to bacterial blight which is the number one threat to rice and Dhanteshwari is gall midge resistant. Dr S K Srivastav, senior entomologist, Krishi Vigyan Kendra, Durg, part of IGAU, said, "We are working on a market-- oriented approach for rice where we want productivity at any cost. Ninety per cent of the farmers in Chhattisgarh are small farmers who are fighting a losing battle with rice production. The new varieties that are being released have predetermined qualities of pest resistance- but the question is can they resist a varied attack. (for instance in Balaghat last year farmers planted a popular variety called Swarna and it was wiped out by blast). Local varieties like Safri 17 are more adapted over the years as they have developed resistance to a wide spectrum of diseases. When the problems of the area are not identified, how can we set them right," he asked. Dr Srivastav worked as a research fellow with Dr Richharia at the MPRRI. NGOs like Rupantar, in Raipur which works on traditional farming systems and seed collection, in 30 villages in Nagri block of Dhamtari district, are trying to document farmers' skills. Illina Sen of Rupantar, said," The old system was self --reliant and productivity under normal conditions, did not compare unfavourably with HYVs. But now farmers have to use fertilisers and they have lost their independence. There is also this issue of diverting land from food crops and water meant for irrigating crops is being diverted for industry. Soyabean is being encouraged and now this new plan for horticulture does not make sense- all this is being done with an eye on the export market. Self-- sufficiency in food is not the issue any more." Five years ago, the (Madhya Pradesh) state government wanted an evaluation of IGAU as it felt the University was not doing a good job and it wanted to shut down the institution. However, the evaluation agency suggested a revival and recommended more funds to be given to the University. The report of this evaluation is not public, Dr Tripathi said. While the effects of the green revolution are being questioned by ecologists in the country, the agriculture research establishment is driven by a keen desire to promote newer forms of inputs with the latest being the emphasis on hybrid varieties, ensuring farmers have to buy seeds every year. It is time a comprehensive evaluation was carried out on the effects of "modern" techniques on agriculture in the context of the loss of biodiversity which is assuming critical proportions now more than ever before. Solutions cannot be found to the question of ensuring food self-sufficiency, by diverting to cash crops. The answers may lie in farmers' fields rather than in some "hallowed" research establishment. Meera Menon is a freelance journalist based in Bombay. She may be contacted at cats at bol.net.in __________________________________ Do you Yahoo!? The New Yahoo! Shopping - with improved product search http://shopping.yahoo.com From paivakil at yahoo.co.in Wed Oct 15 19:36:54 2003 From: paivakil at yahoo.co.in (Mahesh T. Pai) Date: Wed, 15 Oct 2003 19:36:54 +0530 Subject: [Commons-Law] Linux's Hit Men In-Reply-To: <1066525209.764.10.camel@localhost> References: <1066525209.764.10.camel@localhost> Message-ID: <20031015140654.GA4304@nandini> Sunil Abraham said on Sun, Oct 19, 2003 at 06:30:04AM +0530,: I feel that this article is rather nasty to the FSF; misrepresents its activities; seeks to confuse people between 'open source' and 'free software'; I regard this as yet another FUD tactic and hope that the FSF will give a reply. > .. the foundation is demanding that Cisco and Broadcom either a) > rip out all the Linux code in the router and use some other > operating system, or b) make their code available to the entire > world. And if they balk? Kuhn raises the threat of legal action. This is what any copyright holder will do when s/he finds that his / her license is being violated. > rare peek into the dark side of the free software movement--a view > that contrasts with the movement's usual public image of happy > software proles linking arms and singing the "Internationale" while > freely sharing the fruits of their code-writing labor. I do not understand why this article is trying to paint a negative image about somebody asking that the terms of a license be complied with. The situation here is that CISCO & their suppliers have distributed software based on code provided to them on the explicit condition that they shall make available all modifications to the sources, if they distribute modified versions. If you fail to honour the terms under which the software is provided to you, you obviously have to face the consequences. Here CISCO is apparently distributing a modified version of the Linux kernel without providing the modified sources. According to the GNU GPL, the obligation to provide the source code is on the distributor, in this case, CISCO. The case of SCO V. IBM is entirely different. They were, even after filing the suit against IBM, distributing their version _and_ sources to the Linux Kernel. The plaintiff themselves were distributing what they claiming to be 'infringing' copies. > And sometimes it collects money from companies it has busted. What is the big deal? Seeking compensation from people who violate your rights is perfectly justified. > Instead, Progress uses an open source database program distributed > under the less onerous Berkeley Software Distribution license. Precisely. This is the difference between 'open source' and 'free software'. The BSD, unlike the GPL, is not a copyleft license. BSD permits 'stealing' of sources by people who release modified binaries, without disclosing the source code. When you use a BSD license, you are free to keep your modifications for yourself. All the same, you cannot prevent the people to whom you 'sell' a BSD licensed product from selling it to yet third parties. Therefore, not only does the BSD license allow people to create and sell derived works from your work, it also enables people to keep the modifications a secret. (hence the word 'stealing' above) The developers should therefore avoid the BSD license. > In some ways, these Free Software Foundation "enforcement actions" > can be more dangerous than a typical copyright spat, because > usually copyright holders seek money--say, royalties on the product > that infringing companies are selling. But the Free Software > Foundation doesn't want royalties--it wants you to burn down your > house, or at the very least share it with cloners. Source code written by somebody else is not *your* house. What is *your* loss if you are made to stop profiteering from it? You cannot modify proprietary software anyway. The Free Software Foundation, stands for _users_ rights. They make no bones about it. They declare upfront that 'free software' is 'free as in freedom'; it is not 'free as in free masaladosa'. The user is free to view and study the source code. The user can use the software for any purpose. S/he is free to share the software. S/he is free to modify and distribute the modified software. The GPL is a practical implementation of these four freedoms; and imposes some obligations on the people who distribute 'free-as-in-freedom' software. The following links sum FSF's stand on the matter. http://www.gnu.org/philosophy/free-software-for-freedom.html http://www.gnu.org/philosophy/free-sw.html http://www.gnu.org/philosophy/ http://www.gnu.org/philosophy/philosophy.html Some 'open source' licenses, compel users to disclose their modifications, even if there is no distribution. The emphasis is on openness. The GPL however is user friendly in that it permits the users to keep the modifications to themselves, so long as they do not indulge in distribution. The compulsion to disclose the sources (upon distribution of modified versions) , is more developer friendly, since others cannot create parasitic incompatible implementations. Corporate houses who do not like these obligations can opt not to use 'free as in freedom' software. Which is what Nusphere appears to have decided to. > "We'd like people to stop selling proprietary software. It's bad > for the world," Kuhn says. What is bad is 'proprietary software' not 'selling' software. See:- www.gnu.org/philosophy/selling.html > This despite the fact that the foundation has $750,000 in the bank > and one lawyer who works for free, That is way less that annual income of the top CEOs in proprietary software business. Why are giant Goliaths afraid of this puny David? -- +~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~+ Mahesh T. Pai, LL.M., 'NANDINI', S. R. M. Road, Ernakulam, Cochin-682018, Kerala, India. http://in.geocities.com/paivakil +~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~+ From sunil at mahiti.org Mon Oct 20 06:45:42 2003 From: sunil at mahiti.org (Sunil Abraham) Date: 20 Oct 2003 06:45:42 +0530 Subject: [Commons-Law] Linux's Hit Men In-Reply-To: <20031015140654.GA4304@nandini> References: <1066525209.764.10.camel@localhost> <20031015140654.GA4304@nandini> Message-ID: <1066612568.746.12.camel@localhost> On Wed, 2003-10-15 at 19:36, Mahesh T. Pai wrote: > software'; I regard this as yet another FUD tactic and hope that the > FSF will give a reply. They already have. I got this from the summer source list. Thanks to Patrice Riemens for pointing it out. Sunil ------------------------------------------------------------------------------ FSF's Kuhn Responds to Forbes Article Oct 14, 2003, 20 :00 UTC (8 Talkback[s]) (7724 reads) (Other stories by Bradley M. Kuhn) Linux Today asked the Free Software Foundation's Bradley Kuhn if he would like a chance to respond to today's piece at Forbes.com. He gave a brief statement and permission to post it here: "Like many articles in the mainstream media, it does not represent any of the sides all that well. "We have an ongoing productive and friendly conversation with CISCO and Broadcom regarding their violation. In no violation case have we ever filed a law suit, and rarely even get the point to threaten one, because most companies feel that it is better for them and their customers to come into compliance. "Companies make a conscious choice to join the GPL'ed world and build their products in freedom. They are required in return to respect the communities rights, and the characterizations in the article don't point out that it is a conscious quid pro quo for companies. Also, Free Software licensing terms give much more permissions than any proprietary equivalent that a company might base their product on." ------------------------------------------------------------------------------ -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas,then each of us will have two ideas" George B. Shaw From sunil at mahiti.org Thu Oct 16 16:30:06 2003 From: sunil at mahiti.org (Sunil Abraham) Date: 16 Oct 2003 16:30:06 +0530 Subject: [Commons-Law] Linux's Hit Men] Message-ID: <1066302006.2964.137.camel@mahitilaptop.mahiti> -----Forwarded Message----- From: Jeebesh Bagchi [from nettime] The text has been properly debunked in the following Slashdot discussion: . - -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas, then each of us will have two ideas" George B. Shaw From lawrenceliang at vsnl.net Fri Oct 17 05:46:10 2003 From: lawrenceliang at vsnl.net (lawrenceliang at vsnl.net) Date: Thu, 16 Oct 2003 19:16:10 -0500 (GMT) Subject: [Commons-Law] Fwd: [Patents] Fight the Patent Foundation Message-ID: <200310170016.h9H0GAJ11143@webmail2.vsnl.net> An embedded and charset-unspecified text was scrubbed... Name: not available Url: http://mail.sarai.net/pipermail/commons-law/attachments/20031016/f0112e5c/attachment.pl From sunil at mahiti.org Fri Oct 17 13:54:09 2003 From: sunil at mahiti.org (Sunil Abraham) Date: 17 Oct 2003 13:54:09 +0530 Subject: [Commons-Law] Off Topic: Some people obviously think that SCO will win!! Message-ID: <1066379047.1856.147.camel@mahitilaptop.mahiti> Conspiracy Theory: So does that just buy better lawyers...or do we have enough budget to buy a couple of judges! ;-) Sunil SCO Wins $50 Million Investment http://www.eweek.com/article2/0,4149,1354661,00.asp The SCO Group Inc., which has sued IBM for more than $3 billion and claims that Linux is an unauthorized derivative of Unix, on Thursday said it had received a $50 million cash boost in a private investment deal led by BayStar Capital, an investment fund. BayStar, which is based in Larkspur, Calif., and has investments in other hardware and software companies including Neoware Inc., Roxio Inc., Commerce One Inc. and Neoware Inc., has structured its investment in SCO as a private placement of non-voting Series A Convertible Preferred Shares. These shares are convertible into common equity at a fixed conversion price of $16.93 per share—the average closing bid price for the company's common stock for the five trading days prior to and including the date of closing. Once converted, BayStar will own an aggregate of approximately 2.95 million shares of SCO common stock or 17.5 percent of the company's outstanding shares. Add this $50 million investment to the cash on hand at the end of the quarter to July 31, and now SCO has a net cash position of some $61 million. "This cash increase will significantly enhance the overall financial strength of SCO while providing substantial additional funding for business objectives including future Unix and SCOx Web Services software development, new strategic partnerships, and protection of the Company's Unix intellectual property and related programs," said CEO Darl McBride in a statement released on Thursday after the financial markets had closed. SCO had made "significant strides forward" in its on-going effort to protect and enforce the company's intellectual property rights through SCOsource, he said, adding that "we have also been steadily strengthening our core operating business, and in the coming weeks, we look forward to providing the industry and Wall Street with additional details on our plans and initiatives. "Now, with a $50 million investment from BayStar, we believe we have secured the capital necessary to fund all aspects of the long term growth of this company," he concluded. For his part, Lawrence Goldfarb, the general partner for BayStar Capital, said in a statement that his firm invested in "growth-oriented firms with strong management, substantial market opportunity and solid, comprehensive business plans. "We believe that all of those fundamentals are in place for SCO to succeed. It owns the most predominant Unix software assets in the IT industry, has a 20 year history of providing trusted software solutions to end users around the globe, and an aggressive and seasoned management team focused on generating profitable growth." SCO will hold a media teleconference on Friday to give further details of the investment. A spokesman could not immediately be reached for comment. -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas, then each of us will have two ideas" George B. Shaw From monica at sarai.net Fri Oct 17 14:06:46 2003 From: monica at sarai.net (Monica Narula) Date: Fri, 17 Oct 2003 14:06:46 +0530 Subject: [Commons-Law] Linux's Hit Men In-Reply-To: <20031015140654.GA4304@nandini> References: <1066525209.764.10.camel@localhost> <20031015140654.GA4304@nandini> Message-ID: In this debate, i am pulling an excerpt from a mail by Martin Hardie, where he raises questions about re-imagining law. No, i dont think he pushes the (proverbial, paul keating) envelope, but its worth a read in any case best M From: Martin Hardie To: nettime-l at bbs.thing.net Subject: Re: Linux strikes back III Sender: nettime-l-request at bbs.thing.net What I think I am getting at is that the OS FSF FLOSS machine is said to herald a new form of organising, a new form of producing, beyond markets and the firm (to borrow from Benkler). It is to use the phrase in essence "rhizomatic". Although as we see may have some so labelled benevolent dicators symbolised by penguins and such, we have no centre, no directive telling us what to do, what to make. You have a problem to solve, a need to cater for and that problem may be solved by you or someone else creating the tool or a version, prottype which caters for that need. I hope I am doing the system justice in this brief description and although people may pick at some of it the gist is taken as given or fair enough. We have in effect the P2P form of organisation at its height. Now, fine, we or some of us like and even adopt these forms of organisation, these active forces of life and creation. Some even herald them as the coming of a new society, the final dawn of communism or the second coming of christ. We see this way of doing things as being beyond the old corporate/proprietary ways, open, free, etc etc this is the jargon. We have moved beyond property in terms of the product, we have moved beyond representation in terms of the organisation ... (am I confused or is anyone with me?) .. OK but when we come to talking about "the law" or methods of maintaining the integrity of the project most people seem to want to rely on the suits and their methods - it is we can be P2P but the law can't be mentality; we can be beyond property - but when we want to maintain our project we must fall back on property - that is old forms of positive rigid law. Why can't fsfer's think of law and its organisation in ways other than proprietary/closed systems? Why do people who profess to be at the cutting edge, pushing Paul Keating's proverbial envelope, feel the need to hide behind old ways of thinking about law? Why when someone proposes to move to think about law in another way its said it can't work ... Ian's comments remind me, or echo those who say OS FSF P2P can't work as noone is in control, there is no body to represent the machine:. I am not saying deny enforcement - law can be imagined, practiced and made that is beyond the old forms that came with the old way of doing things. I am not saying the FSF can't do its job but orgainsations cannot profess to represent everyone all the time. If I as a Linux user want to sue SCO for threatening my rights why can't I. I have a "cause of action". If the FSF wants to do it as well why can't they - and if they don't take actio but continue to claim to represent me or Morlock, or if the proprietary owner of the OS thing I want to use without threat refuses to take appropriate action (hey linus move your arse and clobber SCO for me) - I might sue them or threaten to. One thing I learnt when i was a lawyer working on copyright cases was that the more threats made against the respective bad guy, the more headaches to deal with the quicker they come to their senses. But dear Ian - you sound like someone who says OS can't work .... but I don't think thats what you meant. All I just wanted to suggest is that we think about law like we think about the other things we talk about here and not get stuck in the old ways. The GPL is a start - it has radically changed the game; but we have to continue to move forward. Am I clearer now ... I can go on! Martin -- Monica Narula Sarai:The New Media Initiative 29 Rajpur Road, Delhi 110 054 www.sarai.net From sunil at mahiti.org Wed Oct 22 07:27:06 2003 From: sunil at mahiti.org (Sunil Abraham) Date: 22 Oct 2003 07:27:06 +0530 Subject: [Commons-Law] Defending the families sued by the RIAA Message-ID: <1066787851.745.57.camel@localhost> Nice list of Links at the bottom of the article: http://riaaradar.com http://boycott-riaa.com http://stopriaalawsuits.com http://downhillbattle.org http://negativland.com/albini.html http://www.weedshare.com/ http://www.oebase.com/ Thanks, Sunil http://www.kuro5hin.org/story/2003/10/16/14350/583 When the RIAA sued 261 music sharers, the press was ready. Journalists knew the suits were coming--it was only a question of when, and who. But for the targets of the lawsuits (the vast majority families with children) there was nothing inevitable about it. Imagine getting hit with a lawsuit for more than the value of your home because your kids went to the wrong webpage and downloaded the wrong program. My role in this started a month ago, when my site was contacted by a programmer who, appalled by the story of Brianna LaHara, wanted to collect donations for people who'd been sued. We worked out a simple "P2P" Defense Fund.that could go up quickly without any legal hassle or red tape, and we started calling people who'd been targetted. The first phone calls were a shock: until then I'd thought about the lawsuits in intellectual/strategic terms (is this a good move for the RIAA or not, etc.) but on the phone these were real people with tough, complex lives: My husband and I both work full time to make ends meet. We have 4 children ... We are middle class and live from paycheck to paycheck. We are good, honest people. This lawsuit has devastated us. Musicians and independent labels are speaking out against the RIAA lawsuits, and one independent musician is even donating proceeds from his CD sales to the Defense Fund. An opportunity exists to stop future lawsuits. By using a peer-to-peer contribution system, we were able to avoid legal hurdles and red tape, and ensure that all donations went directly to the people who had been sued. Each recipient can set up his or her own PayPal account, and our site can track the amount of money each person received. A Perl script on our page rotates the recipient in the "Contribute Now" box so that whoever has received the least money so far is at the front of the line. Jason Rohrer, the programmer behind the open-source broadcast protocol konspire2b, wrote the code and it works great. Donations distribute evenly over time, and we don't have to touch the money. This peer-to-peer, no-middleman approach seemed like the perfect response to major label middlemen. The hard part was contacting the families who'd been sued and getting them signed on. It might be hard for many k5 readers to appreciate how completely adrift these families were. Almost none had heard of the EFF, and most didn't even have email addresses. Many were singled out as "major downloaders" simply because they didn't know how the software worked: people who use Kazaa frequently don't keep all their music in their shared folder (especially since news of the impending lawsuits began circulating) but most of these people didn't know what a "shared folder" was. It seemed that the RIAA's criteria had selected for people who didn't know that much about computers, and who didn't understand how filesharing software worked. The vast majority of those sued were families with young children. Even if their parents aren't computer literate, any 13-year-old with a screen name will learn to use Kazaa from a friend in a matter of minutes. One father who'd been sued was angry at his son, but couldn't honestly blame him. "He said 'dad it was just a website' so I asked him to take me to it. And he was right, it was just a normal website and it didn't say anything about it being illegal." Not only does it not say anything about being illegal, Kazaa's site had 5 colored hearts across the top and looks like a toy. The RIAA's criteria also singled out people who love music. Several of the people we talked to were musicians, and many owned hundreds of CDs. One man John, who is signed up on the fund, is a professional gig musician in Chicago. We couldn't contact him at first because he was playing guitar that night, and every night that week. A woman who signed on to the fund told us about her family's interest in music, We have three daughters, ages 20, 18, and 12, all whom are musically talented .... our eldest daughter is majoring in Vocal Performance at ______ University.... collectively we own over 500 CDs. Many of the downloaded songs are actually singles from various CDs we own ... the girls enjoy creating their own mixes. Many musicians oppose the lawsuits, and some are joining to help those who've been sued and to fight the RIAA and the major labels. Independent musician Scott Andrew LePera is donating proceeds from his new CD to families sued by the major labels. He's selling his folk-pop record "Where I've Been" through his website for $5. The CD has 6 songs to play on a CD player plus two whole albums in MP3 and Ogg format, all released under a Creative Commons license. If his fans think they're getting more than their money's worth, they can "tip" him by paying more than $5. This month's tips will go to the Defense Fund, and he's raised about $240 so far. Even major label musicians are speaking out against the suits. Musicians like Moby, Bob Weir (from the Grateful Dead), and Gregg Rollie (Santana and Journey) sounded off to the San Francisco Chronicle against the lawsuits and the major labels' business practices. "For the artists, my ass," said David Draiman of the band Disturbed, "I didn't ask them to protect me, and I don't want their protection." The punk-rock and pop-punk label GoKart Records is fighting back against the RIAA lawsuits by making several of their new releases available as free downloads. In an interview with O'Reilly OpenP2P GoKart's founder Greg Ross says that what the major labels really hate about filesharing is not lost sales, but lost control: "with few exceptions ... the access to fans is controlled by the five major labels. But they can't control what people download. All they can try to do is control people's access to downloads, or scare them so they won't." Meanwhile, hundreds of families and individuals are suffering needlessly as part of the major labels' scare campaign: Our second daughter is a nursing student at ____ University. As you can imagine, the tuition bills for educating her and her sister are tremendous. We are hardly in a position to pay the price to the recording industry as their sacrificial lamb. So far, the Peer-to-Peer Legal Defense Fund has raised over $1300 for 12 families and individuals, but it will take a lot more money to make a significant dent in these people's legal fees and settlement costs. You can contribute here, and you can choose who receives your donation by clicking on "Full Recipient List" (if, for example, you want your donation to go to someone who is fighting the lawsuit.) The following are some other great resources: RIAA Radar - Make sure the music you pay for is RIAA safe. Boycott-RIAA - News and information. StopRIAAlaawsuits - An open coalition of sites that will call for a one-week boycott of major label CDs when the next round of RIAA lawsuits are filed Downhill Battle - Music activism site (we started the Defense Fund) The Problem with Music - Famous rock producer Steve Albini's famous critique of the music industry. Weed - Share an artist's files freely, listen 3 times for free, then pay $1 to unlock. Artists get half and filesharers even get a cut. Uses DRM, but clever enough to deserve a chance. OEbase - An online music store that only sells handpicked (really good) music. Free streaming and MP3s of lots of independent and unsigned bands. -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas,then each of us will have two ideas" George B. Shaw From monica at sarai.net Sat Oct 18 11:15:53 2003 From: monica at sarai.net (Monica Narula) Date: Sat, 18 Oct 2003 11:15:53 +0530 Subject: [Commons-Law] Digital library of india Message-ID: reading the indian express and arun shourie (with some googling) can uncover nuggets :-) best M Digital Library of India: books in the public domain, plan to put a million by 2005... http://www.dli.gov.in/home.htm what they say about themselves: Vision For the first time in history, all the significant literary, artistic, and scientific works of mankind can be digitally preserved and made freely available, in every corner of the world, for our education, study, and appreciation and that of all our future generations. Up until now, the transmission of our cultural heritage has depended on limited numbers of copies in fragile media. The fires of Alexandria irrevocably severed our access to any of the works of the ancients. In a thousand years, only a few of the paper documents we have today will survive the ravages of deterioration, loss, and outright destruction. With no more than 10 million unique book and document editions before the year 1900, and perhaps 100 million since the beginning of recorded history, the task of preservation is much larger. With new digital technology, though, this task is within the reach of a single concerted effort for the public good, and this effort can be distributed to libraries, museums, and other groups in all countries. Existing archives of paper have many shortcomings. Many other works still in existence today are rare, and only accessible to a small population of scholars and collectors at specific geographic locations. A single wanton act of destruction can destroy an entire line of heritage. Furthermore, contrary to the popular beliefs, the libraries, museums, and publishers do not routinely maintain broadly comprehensive archives of the considered works of man. No one can afford to do this, unless the archive is digital. Digital technology can make the works of man permanently accessible to the billions of people all over the world. J.N.Tata and other great philanthropists, and visionary information scientist like Dr S. R. Ranganathan, in past centuries have recognized the great potential of public libraries to improve the quality of life and provide opportunity the citizenry. A language independent digital library, widely available through free access on the Internet, will improve the global society in ways beyond measurement. The technological advances today make it possible to think in terms of storing all the knowledge of the human race in digital form by the year 2008. THEIR Copyright disclaimer: Copyright Disclaimer All the books available at the Universal Library are either out of copyright or permission to scan has been granted. If this is incorrect, please let us know and we will remove the offending content. -- Monica Narula Sarai, CSDS 29 Rajpur Road, Delhi 110 054 www.sarai.net From monica at sarai.net Sat Oct 18 11:16:02 2003 From: monica at sarai.net (Monica Narula) Date: Sat, 18 Oct 2003 11:16:02 +0530 Subject: [Commons-Law] NALANDA - Network of Automated Library and Archive Message-ID: once you start looking for things, you find so much! best M NALANDA - Network of Automated Library and Archives NALANDA is an incredible public domain archive with books on science, humanities, fiction - all in the public domain. You can view and print the pdfs, but need a password to copy. http://www.nalanda.nitc.ac.in/ What they say about themselves: Library at National Institute of Technology Calicut , Kerala State , India offers its services to about 3000 users comprising undergraduate, post graduate students and research scholars of various branches of Engineering and Faculty and Supporting Staff from various departments of the Institute and Neighboring Institutions. The NITC library underwent considerable modernisation over the past decade in terms of traditional holdings, back volume collection, digital resources, electronic databases etc. The Library uses Automation Software for its operations ; has a fully bar coded collection and offers OPAC Service throughout the Campus LAN. Nalanda is the result of the ongoing Digital Library Initiative at NITC Library.Nalanda Project aims at a full-fledged Digital Library at NITC to cater to the increasing demand for information resources from the Campus User Community as well as from Remote Users from rest of the Country; particularly from the Southern States of India. Nalanda Digital Library is at present in the evolving stage and consequently this site will be updated frequently. -- Monica Narula Sarai, CSDS 29 Rajpur Road, Delhi 110 054 www.sarai.net From shamnadbasheer at yahoo.co.in Tue Oct 21 02:32:46 2003 From: shamnadbasheer at yahoo.co.in (=?iso-8859-1?q?Shamnad=20Basheer?=) Date: Mon, 20 Oct 2003 22:02:46 +0100 (BST) Subject: [Commons-Law] Fwd: Aveda - Trademark on "Indigenous" In-Reply-To: Message-ID: <20031020210246.75364.qmail@web8002.mail.in.yahoo.com> Apologies for waking up a little too late on this. Not sure if anyone has responded to this-if so, apologies for the repetition: 1. "INDIGENOUS" used in relation to cosmetics etc seems, at best to be a descriptive term-more so, when one takes a look at their website and finds that most products seem to be based on some sort of native knowledge/tradition. 2. Being a descriptive term, "INDIGENOUS" cannot acquire the status of a trademark, till such time as it has been used so extensively as to be vested with a "secondary meaning"-i.e. consumers begin to connect these goods to the organisation that actually sells them. 3. I notice that at least in so far as the US applications are concerned, the date of first use is mid 2002. Unless massive amounts of money have been pumped into advertising and educating the consumer that "INDIGENOUS" denotes goods emanating from this one corporation, it seems unlikely that the mark would have acquired any sort of secondary meaning in so short a while. 4. The mark has been registered in different countries and any potential challenge would have to be based on the separate laws of these countries. I notice that the mark has already been registered in Canada-opposition in such a case, would, I fear be rather difficult (and may not even be possible in some cases). On the other hand, in the US, where some of these applications are still pending, it may be easier to oppose at this early stage. 4. I'm not aware of any international regulation/norm that would govern this situation. (am not sure if one can mount a challenge based on the fact that this term denotes a certain class of people who may have special rights under international norms-and therefore the exploitation of this term by a commerical venture ought to be prohibited). regards-shamnad Monica Narula wrote: How in the world can Aveda do this??!! ANd i mean that not rhetorically, but in real terms. This is tantamount to my trademarking 'installation'!! best M >Delivered-To: monica at sarai.net >From: "nettime's word police" >Subject: Aveda - Trademark on "Indigenous" >Date: Fri, 22 Aug 2003 12:44:10 +0200 >To: nettime >Sender: nettime-l-request at bbs.thing.net >Reply-To: "nettime's word police" >X-Spam-Status: No, hits=-6.6 required=5.0 > tests=BAYES_01 > version=2.53 >X-Spam-Level: >X-Spam-Checker-Version: SpamAssassin 2.53 (1.174.2.15-2003-03-30-exp) >X-Sanitizer: Mail Sanitizer > > >-----Original Message----- >From: ------x----- >Sent: Wednesday, August 13, 2003 1:21 AM >Subject: Aveda - Trademark on "Indigenous" >To: -----x------ > > >Good morning colleagues, > ><...> > >I came across something that I found quite disturbing and I am hoping >that you may be able to assist me. > >It appears that Aveda Corporation has registered a trademark for the >term "Indigenous" in a number of jurisdictions including U.S., Canada, >Australia, NZ and Japan. I am hoping that one of you might be able to >provide me with an opinion on whether the trademark registrations below >may be in contravention of any international or domestic trademark >laws. > >Please follow the following links: > >http://www.aveda.com/protect/we/indigenous.asp > >http://strategis.ic.gc.ca/SSG/1028/trdp102896100e.html > >http://tess2.uspto.gov/bin/showfield?f=doc&state=fu1bma.2.1 > >http://pericles.ipaustralia.gov.au/atmoss/falcon_details.show_tm_details?p_tm_number=806883&p_search_no=2&p_ExtDisp=D&p_detail=QUICK&p_rec_no=1&p_r >ec_all=11 > > > > > >----+-------+---------+--- >http://felix.openflows.org > ># distributed via : no commercial use without permission ># is a moderated mailing list for net criticism, ># collaborative text filtering and cultural politics of the nets ># more info: majordomo at bbs.thing.net and "info nettime-l" in the msg body ># archive: http://www.nettime.org contact: nettime at bbs.thing.net -- Monica Narula Sarai:The New Media Initiative 29 Rajpur Road, Delhi 110 054 www.sarai.net _______________________________________________ commons-law mailing list commons-law at mail.sarai.net http://mail.sarai.net/cgi-bin/mailman/listinfo/commons-law Yahoo! India Matrimony: Find your partner online.Post your profile. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20031020/100e7a59/attachment.html From saif42 at hotmail.com Tue Oct 21 16:06:23 2003 From: saif42 at hotmail.com (Dev Gangjee) Date: Tue, 21 Oct 2003 11:36:23 +0100 Subject: [Commons-Law] Fwd: Aveda - Trademark on "Indigenous" References: <20031020210246.75364.qmail@web8002.mail.in.yahoo.com> Message-ID: Just another follow up on this - I wrote to the owners of the mark at their email address raising the descriptive/non-distinctive issues as well as the immorality of using such a mark, over a month ago and - as expected - never received any reply. I was considering the possibility of striking the mark off on grounds that it offended morality based on a decision of the US Trademark Trial and Appeal Board called Pro Football Inc v Hajro, where Native American/First Nations complainants successfully argued that the use of 'Redskins' in the context of a sports team trademark was disparaging. (The scope of when a mark offends morality is a fairly gray and relatively unexplored area in TM law.) However, even that scenario doesn't look too viable after the federal district court overruled this decision in Pro-Football Inc. vs. Susan Shown Harjo (Sept. 30, 2003). For more details, see - http://www.indianz.com/News/archives/001851.asp ----- Original Message ----- From: Shamnad Basheer To: Monica Narula ; commons-law at sarai.net Sent: Monday, October 20, 2003 10:02 PM Subject: Re: [Commons-Law] Fwd: Aveda - Trademark on "Indigenous" Apologies for waking up a little too late on this. Not sure if anyone has responded to this-if so, apologies for the repetition: 1. "INDIGENOUS" used in relation to cosmetics etc seems, at best to be a descriptive term-more so, when one takes a look at their website and finds that most products seem to be based on some sort of native knowledge/tradition. 2. Being a descriptive term, "INDIGENOUS" cannot acquire the status of a trademark, till such time as it has been used so extensively as to be vested with a "secondary meaning"-i.e. consumers begin to connect these goods to the organisation that actually sells them. 3. I notice that at least in so far as the US applications are concerned, the date of first use is mid 2002. Unless massive amounts of money have been pumped into advertising and educating the consumer that "INDIGENOUS" denotes goods emanating from this one corporation, it seems unlikely that the mark would have acquired any sort of secondary meaning in so short a while. 4. The mark has been registered in different countries and any potential challenge would have to be based on the separate laws of these countries. I notice that the mark has already been registered in Canada-opposition in such a case, would, I fear be rather difficult (and may not even be possible in some cases). On the other hand, in the US, where some of these applications are still pending, it may be easier to oppose at this early stage. 4. I'm not aware of any international regulation/norm that would govern this situation. (am not sure if one can mount a challenge based on the fact that this term denotes a certain class of people who may have special rights under international norms-and therefore the exploitation of this term by a commerical venture ought to be prohibited). regards-shamnad Monica Narula wrote: How in the world can Aveda do this??!! ANd i mean that not rhetorically, but in real terms. This is tantamount to my trademarking 'installation'!! best M -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20031021/503ede8f/attachment.html From shamnadbasheer at yahoo.co.in Tue Oct 21 18:43:19 2003 From: shamnadbasheer at yahoo.co.in (=?iso-8859-1?q?Shamnad=20Basheer?=) Date: Tue, 21 Oct 2003 14:13:19 +0100 (BST) Subject: [Commons-Law] Fwd: Aveda - Trademark on "Indigenous" In-Reply-To: Message-ID: <20031021131319.21874.qmail@web8001.mail.in.yahoo.com> Thanks for that Dev, "Morality" would be a good ground to explore-though i'm not entirely sure if it would work. While "redskins" could qualify as a "perjorative" term and come closer to violating moral norms. i'm not so sure that we could say the same about the term "indigenous"-especially in view of the fact that the products do in fact draw inspiration from native traditions/knowledge. The Aveda website goes so far as to state that the key ingredients in some of their products are harvested in partnership with the native groups. regards-shamnad ps: The federal court overruling in the pro-football case was based, to some substantial degree on the fact that the use of the term "redskins" by a football team had not been objected to for a considerable period of time. Dev Gangjee wrote: Just another follow up on this - I wrote to the owners of the mark at their email address raising the descriptive/non-distinctive issues as well as the immorality of using such a mark, over a month ago and - as expected - never received any reply. I was considering the possibility of striking the mark off on grounds that it offended morality based on a decision of the US Trademark Trial and Appeal Board called Pro Football Inc v Hajro, where Native American/First Nations complainants successfully argued that the use of 'Redskins' in the context of a sports team trademark was disparaging. (The scope of when a mark offends morality is a fairly gray and relatively unexplored area in TM law.) However, even that scenario doesn't look too viable after the federal district court overruled this decision in Pro-Football Inc. vs. Susan Shown Harjo (Sept. 30, 2003). For more details, see - http://www.indianz.com/News/archives/001851.asp ----- Original Message ----- From: Shamnad Basheer To: Monica Narula ; commons-law at sarai.net Sent: Monday, October 20, 2003 10:02 PM Subject: Re: [Commons-Law] Fwd: Aveda - Trademark on "Indigenous" Apologies for waking up a little too late on this. Not sure if anyone has responded to this-if so, apologies for the repetition: 1. "INDIGENOUS" used in relation to cosmetics etc seems, at best to be a descriptive term-more so, when one takes a look at their website and finds that most products seem to be based on some sort of native knowledge/tradition. 2. Being a descriptive term, "INDIGENOUS" cannot acquire the status of a trademark, till such time as it has been used so extensively as to be vested with a "secondary meaning"-i.e. consumers begin to connect these goods to the organisation that actually sells them. 3. I notice that at least in so far as the US applications are concerned, the date of first use is mid 2002. Unless massive amounts of money have been pumped into advertising and educating the consumer that "INDIGENOUS" denotes goods emanating from this one corporation, it seems unlikely that the mark would have acquired any sort of secondary meaning in so short a while. 4. The mark has been registered in different countries and any potential challenge would have to be based on the separate laws of these countries. I notice that the mark has already been registered in Canada-opposition in such a case, would, I fear be rather difficult (and may not even be possible in some cases). On the other hand, in the US, where some of these applications are still pending, it may be easier to oppose at this early stage. 4. I'm not aware of any international regulation/norm that would govern this situation. (am not sure if one can mount a challenge based on the fact that this term denotes a certain class of people who may have special rights under international norms-and therefore the exploitation of this term by a commerical venture ought to be prohibited). regards-shamnad Monica Narula wrote: How in the world can Aveda do this??!! ANd i mean that not rhetorically, but in real terms. This is tantamount to my trademarking 'installation'!! best M _______________________________________________ commons-law mailing list commons-law at sarai.net https://mail.sarai.net/mailman/listinfo/commons-law Yahoo! India Matrimony: Find your partner online.Post your profile. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20031021/b41b51e9/attachment.html From sunil at mahiti.org Wed Oct 22 16:26:47 2003 From: sunil at mahiti.org (Sunil Abraham) Date: Wed, 22 Oct 2003 10:56:47 -0000 (GMT) Subject: [Commons-Law] An important victory in Europe but not a final one - Richard Stallman Message-ID: <45112.203.145.183.210.1066820207.squirrel@imeme.net> Oh what joy... to read Mr. Stallman again! :-) Sunil http://www.newsforge.com/business/03/10/21/1222214.shtml?tid=85 -------------------------------------------------------------------------- On September 24 I received dreadful news: that the European Parliament had voted in favor of software patents. It had approved the directive on "computer-implemented inventions." The European Commission directorate that proposed the directive said, and continues to say, that it would not authorize software patents -- but the text they proposed had many loopholes, any of which would have allowed patents that restrict using ideas in software for your PC. Practically speaking, that means software patents. On September 25 I heard the real news, from Hartmut Pilch of FFII, who has studied the directive and its loopholes more carefully than anyone else. He reported that the amendments adopted by the parliament had closed all the loopholes. The vote was actually a victory for the free software community. We lobbied against the megacorporations in a national (or you could say multinational) legislature, and we won. The initial erroneous reports were based on the mistaken understanding that only complete rejection of the directive would prevent software patents. On the contrary, a directive amended to clearly reject software patents, as the parliament has done, is a step forward. The European Patent Office (EPO) has issued ten of thousands of software patents, in defiance of the treaty under which it operates. The original directive would have made them all valid; the amended directive will affirm they are invalid. In the weeks before the vote, the Socialist Party had begun to recognize the directive's problems, and proposed compromise amendments that would have closed the best known loophole, the one that allowed the patent's "inventive step" to be a software idea. (It used the vague criterion of "technical character," which was supposed to require a physical invention, but those two words could be stretched to include almost anything.) But it's insufficient to close one loophole when several others alongside it remain gaping open. For instance, even interpreting "technical character" in the strict sense of a physical system, it was sufficient for the inventive step to involve use of a physical object, such as a computer or a mouse. Even the infamous one-click shopping patent could have got through, presented as a new way of using the undeniably physical mouse. The day before the vote, I participated in a press conference held by the Green Party, where we explained that further amendments were needed to avoid authorizing software patents. Hartmut Pilch had analyzed all the amendments and reported on how they would affect software patents, preparing a handout that explained clearly which were necessary and which were harmful. We thought about how to make last-ditch arguments to persuade members of parliament to vote for the necessary ones. Whether or not those arguments were effective, the outcome was favorable. The parliament went much further than the Socialists' compromise; it adopted amendments that close all the loopholes, and made the directive a positive one. Threats from EU officials that even the compromise amendments would be unacceptable may have strengthened the parliament's resolve to show it cannot be intimidated. As a leader of the League for Programming Freedom, I began warning Europeans about the danger of US-style software patents with a series of speeches in the early '90s. It took a few more years before the megacorporations, the US government, and the EPO began to lobby for legitimizing software patents there. The European free software community took the lead in opposing them. But we did not present this as a campaign for the sake of free software alone. Software patents are dangerous for all software developers, outside of the megacorporations, and organized opposition to software patents has included developers of free and non-free software ever since the League for Programming Freedom began it. European proprietary software companies have participated strongly in this campaign. Officials of the EU and WIPO have reportedly suggested making an exception to patents for free software alone, but we believe we have a better chance of winning if we campaign for something that would benefit nearly all programmers: to reject software patents entirely. As the European Parliament began to consider the issue, opposition spread beyond software developers. Librarians, consumer organizations, opponents of privatization in general, the Green Party, and activists campaigning on other issues of patent law (such as to allow poor countries to make and trade life-saving drugs) also joined our side. Economists did research showing both theoretically and empirically that software patents do not promote progress and can hamper it. All contributed to this victory. We have won an important battle, but the war is not over. The September 24 vote was not the final decision; the directive as now amended can be changed by the Council of Ministers, which consists of one representative from each EU country. The council meets on November 10. Europeans are now working to convince their governments to support the amendments that the parliament has made. Removing even one amendment could open a loophole big enough to admit truckloads of software patents. Our victory in parliament shows we can win a battle, but if we relax now, we can still lose in the final outcome. If you are a citizen of Europe, please look at swpat.ffii.org and softwarepatents.co.uk to see how you can aid the campaign to keep the world safe from software patents. Copyright 2003 Richard Stallman Verbatim copying and distribution of this entire article are permitted in any medium provided this notice is preserved. -------------------------------------------------------------------------- -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas, then each of us will have two ideas" George B. Shaw From monica at sarai.net Wed Oct 22 17:35:52 2003 From: monica at sarai.net (Monica Narula) Date: Wed, 22 Oct 2003 17:35:52 +0530 Subject: [Commons-Law] The Sampling Licenses Message-ID: http://creativecommons.org/projects/sampling The Sampling Licenses Inspired by world-famous musician and composer Gilberto Gil and developed with the help of the veteran found-art group Negativland, Creative Commons will launch our new Sampling Licenses on December 16, 2003. The new licenses, which will encourage the creative transformation of existing works, will kick-off in Brazil — home of Gil, who now serves as the nation's Minister of Culture, and the FGV Law School, which coordinates Creative Commons' activities in Brazil. Gil and FGV Law School will collaborate on a release of the first Sampling-licensed creative works, which will then serve as the model for the adoption of the Sampling licenses around the world. Creative Commons first considered offering a Sampling License at the suggestion of collagist People Like Us (a.k.a. Vicki Bennett) and Negativland, the appropriationist art collective that has since served as the public discussion lead during the drafting process. During this process, and thanks to FGV Law School, we learned that Minister Gil had long been thinking along similar lines, and we immediately sought to combine these independent inspirations. The Sampling licenses will help authors foster a broad range of culture, from photo collage to musical "mash-ups," that the law currently deems illegitimate -- despite its growing popularity and acceptance online. And while embodying the Creative Commons "Some Rights Reserved" model of copyright, the licenses will offer a combination of conditions and freedoms that our current licenses do not. The Sampling License The Sampling license will let authors invite others to tranform their work, even for commercial purposes, while prohibiting distribution of verbatim copies, or any use in advertising. For example, an artist could take a photo licensed under Sampling, crop it, and use it in a commercial collage, but she could not distribute simple copies of the whole, original photo. A DJ could borrow elements of a licensed song, royalty-free, and use them in an original piece. He could not, however, put a copy of the tune on a file-sharing network. The Sampling-Plus License The Sampling-Plus license will offer the same freedoms as the Sampling license, but will also allow noncommercial sharing of the verbatim work. So, an artist could release her song under a Sampling-Plus license to encourage her fans to trade it on file-sharing networks, then remix or build upon it however they like. But the license would protect verbatim copies of her work from for-profit exploitation by others. Or a photographer could invite the widespread, noncommercial distribution of a whole photo and its resulting tranformation while preventing others from simply reselling the photo, unchanged. The Sampling Licenses will be launching this Fall, check back with this page for the official launch announcement. Can Copyright Be Saved? New ideas to make intellectual property work in the digital age By ETHAN SMITH Staff Reporter of THE WALL STREET JOURNAL October 20, 2003 For some people, the future of copyright law is here, and it looks a lot like Gilberto Gil. The Brazilian singer-songwriter plans to release a groundbreaking CD this winter, which will include three of his biggest hits from the 1970s. It isn't the content of the disc that makes it so novel, though -- it's the copyright notice that will accompany it. Instead of the standard "all rights reserved," the notice will explicitly allow users of the CD to work the music into their own material. "You are free ... to make derivative works," the notice will state in part. That's a significant departure from the standard copyright notice, which forbids such use of creative material and requires a legal agreement to be worked out for any exceptions. Is this the future of copyright? Perhaps. But a better way to think of it is that it's one of the possible futures of copyright. Because right now, it's all pretty much up for grabs. Blame it all on the Digital Age. As any digital downloader can tell you, technology and the Internet have made it simple for almost anyone to make virtually unlimited copies of music, videos and other creative works. With so many people doing just that, artists and entertainment companies sometimes appear helpless to prevent illegal copying, and their halting legal efforts so far have antagonized customers while hardly putting a dent in piracy. The challenge is finding a way out of this mess. Efforts fall broadly into two camps. On one side, generally speaking, are those who revel in the freedom that technology has brought to the distribution of creative material, and who believe that copyright law should reflect this newfound freedom. On the other side are those who believe that the digital age hasn't changed anything in terms of the rights of artists and entertainment companies to control the distribution of their creations and to be paid for them -- the essence of copyright law. For them, the answer is to leave copyright law intact, and to use technology to make it harder for people to make digital copies. Here's a closer look at some of the competing visions. IN THIS TOGETHER The copyright notice for Mr. Gil's coming CD is being crafted by Creative Commons, a nonprofit organization that seeks to redraw the copyright landscape. Believing traditional copyrights are too restrictive, it aims to create plain-language copyright notices that explicitly offer a greater degree of freedom to those who would reshape or redistribute the copyrighted material. Traditional copyright law gives owners of creative material -- and them alone -- the right to copy or distribute their works. Although they can waive all or part of those rights, the process isn't easy and usually occurs in response to a particular request. Those hurdles, critics say, can hinder the open and freewheeling sharing of material the digital age makes possible. Creative Commons seeks to make the system more flexible by spelling out which rights the copyright holder wishes to reserve and which are being waived without waiting for a request. Artists can mix and match from among four basic licensing agreements: They can decide whether they simply want attribution anytime their work is used by someone else; whether they want to deny others use of the work for profit without permission; whether they want to prevent others from altering the material; and whether they want to permit the use of material only if the new work is offered to the public under the same terms. An underlying layer of digital code enforces the rights laid out by the owner, telling computers how a given work can be used. A Creative Commons license isn't for everyone. It might appeal to independent artists for whom free samples, distributed online, might represent an attractive marketing option, or for someone like Mr. Gil, who believes that making it easier to share and reshape his music can be an important part of the creative process. But it's unlikely to appeal to the big media companies, for which copyrighted material is what they sell. Still, Mr. Gil, who is also Brazil's culture minister, sees Creative Commons as a way to unlock the creative potential of digital technology. "I'm doing it as an artist," he says. "But our ministry has been following the process and getting interested in supporting projects concerning free use," not only for music, but also for creative content in general. TAX TIME? A more radical proposal for overhauling the copyright system comes from William Fisher, a Harvard University law professor and director of the Berkman Center for Internet and Society. Mr. Fisher believes that the wide-open nature of the Internet and the explosion of creative material that it has fostered are making the administration of copyright law increasingly unwieldy. Traditional copyright is beyond fixing, he believes, and ought to be scrapped in favor of a simpler system that doesn't require an onerous effort to protect each piece of creative material against copying. His solution is a regimen called compulsory licensing. In this system, music and film, after being registered with the copyright office, could be traded freely over the Internet, eliminating the problem of copyright enforcement. The owners would be compensated out of a fund raised by a new tax. In order to share the proceeds of the tax, content owners would be obliged to license their material for such use -- that's the compulsory part. "The only palatable short-term taxation option would impose a levy upon services and things that are used to access, store, record and play digital entertainment," Mr. Fisher says. "ISP access, blank media, MP3 players, CD burners, and so on." The professor estimates that a tax would need to be set at a blanket 15% to make up for the revenue lost to the new system. Critics already have pointed out, however, that the $2.4 billion he estimates his proposal would raise annually falls far short of the roughly $11 billion in annual revenue reaped by the music industry alone in the U.S. EXERCISING RESTRAINT On the other side of the debate are those who believe that copyright law doesn't need to be tinkered with at all; it just needs an effective enforcement mechanism, which is not out of the realm of possibility. Steps already are being taken in this direction with technology known as digital-rights management, or DRM, a field led by Microsoft Corp. This technology aims to protect the copyrights of producers of digital materials while allowing for the traditional right under copyright law for people to copy materials for personal use. Rather than locking up digital content, DRM puts it on a leash. For instance, DRM technology may serve as the basis for security features that allow for only a single copy of a CD to be made, and don't allow the copy to be copied. The technology may allow tracks from the same CD to be exported to a portable MP3 player, but not to be transferred online. In describing how DRM can protect entertainment providers without antagonizing consumers, Dave Fester, general manager of Microsoft's digital media division, says, "DRM is the magic link that allows you to step into that secure world, yet do it in a smart, flexible way." Numerous security systems rely on Microsoft's DRM, now in its fourth incarnation. Most of the new online music stores that sell music in the Windows Media format rely on Microsoft DRM to place limits on copying and burning; the others, Apple Computer Inc.'s iTunes store (www.apple.com/itunes) and Time Warner Inc.'s MusicNet (www.musicnet.com), rely on different DRM schemes. And a handful of CDs have been sold with Microsoft-powered DRM systems in place, in an attempt to stanch the flow of copyrighted material onto the Internet. Indeed, DRM has provided a middle ground for music companies that have hesitated to institute in the U.S. the draconian controls now standard in Europe and Asia, where CDs generally are sold with technology that prevents them from being copied in any way. Not wanting to go that far, these companies until now have settled for continuing to produce CDs that have no controls at all. A pioneer in DRM technology is a CD by rhythm-and-blues singer Anthony Hamilton released in the U.S. in September by the BMG unit of Germany's Bertelsmann AG. The CD relies on a copy-protection system from SunnComm Technologies Inc. of Phoenix. The system, which incorporates DRM technology, uses encryption to allow for the creation of only a handful of copies of the tracks on a CD inserted in a computer, for uses such as export to MP3 players. However, the protection application runs only on some operating systems. Worse, many in the online community quickly pointed out that simply holding down the shift key while inserting the disc prevented the copy-protection application from running at all. Thomas Hesse, BMG's chief strategic officer, acknowledges the system's shortcomings, but adds that it is "more a speed bump than a complete solution to all our problems." SunnComm Chief Executive Peter Jacobs points out that the shift-key trick only works if a user executes it the first time -- and each subsequent time -- the CD is inserted into his or her computer. Mr. Jacobs adds that future versions of the copy-protection software will make the trick even less likely to work. "You can't start from a perfect place," says Mr. Jacobs. -- Mr. Smith is a staff reporter in The Wall Street Journal's Los Angeles bureau. Write to Ethan Smith at ethan.smith at wsj.com URL for this article: http://online.wsj.com/article/0,,SB106614539785040300,00.html -- Monica Narula Sarai, CSDS 29 Rajpur Road, Delhi 110 054 www.sarai.net From devilspot at yahoo.com Wed Oct 22 21:12:49 2003 From: devilspot at yahoo.com (protima pandey) Date: Wed, 22 Oct 2003 08:42:49 -0700 (PDT) Subject: [Commons-Law] Fwd: Aveda - Trademark on "Indigenous" In-Reply-To: <20031021131319.21874.qmail@web8001.mail.in.yahoo.com> Message-ID: <20031022154249.50093.qmail@web13807.mail.yahoo.com> Folks, This morning I called United States Patent and Trademark Office (USPTO) @ 703 308 8900 which is the office of the commissioner of trademarks and they directed me to the Trademark Trial and Appellate Board (TTAB) (730 308 9100) to check on the status of any opposition to the "indigenous" marks sought for registration by Aveda. It looks like there were none. The last date for filing oppostion/seeking extension to file the opposition was Oct 9th for 78975097 and even earlier for 78111129. All we can do now is to wait and see if the mark is granted registration and then mobilize filing of opposition. I would suggest the route of persuasion here since technically we had a window to oppose this mark but did not do so. We could write a petition, have the same signed and mail/fax and email it to the TTAB and USPTO officials and a copy to Hella Amy E. the USPTO attorney assigned to this case. When I spoke to the court clerk this morning, she said they will wait for 2 more weeks before they move these marks out of the "pending for opposition" (loosely coined phrase used by the clerks to track applications) status even though the dates to file have expired, in case they received a post-marked letter marked for the last date pending. So we could do something in the meantime. My two bits. Protima Shamnad Basheer wrote: Thanks for that Dev, "Morality" would be a good ground to explore-though i'm not entirely sure if it would work. While "redskins" could qualify as a "perjorative" term and come closer to violating moral norms. i'm not so sure that we could say the same about the term "indigenous"-especially in view of the fact that the products do in fact draw inspiration from native traditions/knowledge. The Aveda website goes so far as to state that the key ingredients in some of their products are harvested in partnership with the native groups. regards-shamnad ps: The federal court overruling in the pro-football case was based, to some substantial degree on the fact that the use of the term "redskins" by a football team had not been objected to for a considerable period of time. Dev Gangjee wrote: Just another follow up on this - I wrote to the owners of the mark at their email address raising the descriptive/non-distinctive issues as well as the immorality of using such a mark, over a month ago and - as expected - never received any reply. I was considering the possibility of striking the mark off on grounds that it offended morality based on a decision of the US Trademark Trial and Appeal Board called Pro Football Inc v Hajro, where Native American/First Nations complainants successfully argued that the use of 'Redskins' in the context of a sports team trademark was disparaging. (The scope of when a mark offends morality is a fairly gray and relatively unexplored area in TM law.) However, even that scenario doesn't look too viable after the federal district court overruled this decision in Pro-Football Inc. vs. Susan Shown Harjo (Sept. 30, 2003). For more details, see - http://www.indianz.com/News/archives/001851.asp ----- Original Message ----- From: Shamnad Basheer To: Monica Narula ; commons-law at sarai.net Sent: Monday, October 20, 2003 10:02 PM Subject: Re: [Commons-Law] Fwd: Aveda - Trademark on "Indigenous" Apologies for waking up a little too late on this. Not sure if anyone has responded to this-if so, apologies for the repetition: 1. "INDIGENOUS" used in relation to cosmetics etc seems, at best to be a descriptive term-more so, when one takes a look at their website and finds that most products seem to be based on some sort of native knowledge/tradition. 2. Being a descriptive term, "INDIGENOUS" cannot acquire the status of a trademark, till such time as it has been used so extensively as to be vested with a "secondary meaning"-i.e. consumers begin to connect these goods to the organisation that actually sells them. 3. I notice that at least in so far as the US applications are concerned, the date of first use is mid 2002. Unless massive amounts of money have been pumped into advertising and educating the consumer that "INDIGENOUS" denotes goods emanating from this one corporation, it seems unlikely that the mark would have acquired any sort of secondary meaning in so short a while. 4. The mark has been registered in different countries and any potential challenge would have to be based on the separate laws of these countries. I notice that the mark has already been registered in Canada-opposition in such a case, would, I fear be rather difficult (and may not even be possible in some cases). On the other hand, in the US, where some of these applications are still pending, it may be easier to oppose at this early stage. 4. I'm not aware of any international regulation/norm that would govern this situation. (am not sure if one can mount a challenge based on the fact that this term denotes a certain class of people who may have special rights under international norms-and therefore the exploitation of this term by a commerical venture ought to be prohibited). regards-shamnad Monica Narula wrote: How in the world can Aveda do this??!! ANd i mean that not rhetorically, but in real terms. This is tantamount to my trademarking 'installation'!! best M _______________________________________________ commons-law mailing list commons-law at sarai.net https://mail.sarai.net/mailman/listinfo/commons-law Yahoo! India Matrimony: Find your partner online. Post your profile._______________________________________________ commons-law mailing list commons-law at sarai.net https://mail.sarai.net/mailman/listinfo/commons-law --------------------------------- Do you Yahoo!? The New Yahoo! Shopping - with improved product search -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20031022/47ccf936/attachment.html From auskadi at tvcabo.co.mz Fri Oct 24 11:18:04 2003 From: auskadi at tvcabo.co.mz (Martin Hardie) Date: Fri, 24 Oct 2003 07:48:04 +0200 Subject: [Commons-Law] Impaired - is it SCO? preliminary thoughts. Message-ID: <200310240748.04646.auskadi@tvcabo.co.mz> Its been getting a bit boring here in Maputo so I went to Nelspruit in Sth Africa to do some shopping and sit in the air conditioned mall. While I waited and drank coffee I did some reading and the next day put together these notes regarding some of the responses to the SCO litigation - it is just a start. I make no claims as a hacker, I am a mere Linux user, in the jargon, a newbie at that, but I have been trying to come to grips with the various aspects of the SCO litigation in order to assess their relevance to my ongoing research (re other ways to imagine law and OS). That research is by nature part legal, part philosophical and part political. I am sending this rough work out so maybe we can discuss it and those who have something to add can help me and in fact us all out in better understanding what is happening. In case anyone wants to accuse me of something .. I am not doing this to defend SCO's position but to try and get to the bottom of it. I am not seeking to defend SCO (or IBM for that matter). I have just trying to sort the wheat from the chafe. Any help is appreciated. And please it is a working thing - not finished thoughts or conclusions. Anyway to commence the process of disassembling SCO and the courts I have been going through a number of documents including the complaints and counter complaints filed in the SCO v IBM case and the Red Hat v SCO case, the OSI Position Paper on the SCO v IBM Complaint and the document "Halloween IX: It Ain't Necessarily SCO", http://www.opensource.org/halloween/halloween9.html, amongst other things. At its core it seems to me at this point that the litigation is based upon the rights that SCO has acquired in a form of UNIX based upon the broad genealogy of AT&T - USL -Novell - Caldera - SCO. And it is of course this purchase and the variously related contracts that give rise to the simplification that this is not a copyright dispute. But the more I read the import of the dispute revolves around breaches of contract which in themselves refer back to the copyright purchased by SCO. It may be to characterise this dispute as not being about copyright is to fall straight into the lair of SCO's not inexperienced lawyers. In Lessig's second tome, The Future of Ideas at page 53 the Prof. says: "After 1984, UNIX would no longer be free....". This it seems is a reference to the fact that on "January 1, 1984, the Bell System was broken up. ... AT&T could enter the software business. ... (and) ... That year, the corporation began to develop Unix as a commercial product". The corporate acquisitions history is such that whatever the rights held by AT&T as of 1984 were in 1994 purchased from Novell by Caldera and ended up being owned by SCO. This all seems clear from the Corporate History outlined in the OSI Position Paper (See: http://www.opensource.org/sco-vs-ibm.html#id2788824). We thus have a position were SCO bought something which was a UNIX and was from 1984 unfree. It was proprietary software that was passed down from buyer to buyer from AT&T to USL to Novell to Caldera to SCO. But having worked this part out things start to get messy but it seems to me at this point that what they bought seems to have been UNIX System V (r1). Depending on what has been done since that time System V (r1) seems to have now grown into Open Unixware 8 and SCO Unix 7 (again see: http://www.opensource.org/sco-vs-ibm.html#id2788824). No in both the OSI Position Paper and in Halloween IX: It Ain't Necessarily SCO, the OSI gang tell us that whatever SCO bought it has been "impaired". Thus the next point to try and unravel this appears to involve looking at these impairments. In doing so given that e are dealing with law, (Intellectual) property and contracts (the things that the GPL is based upon) we need to examine these impairments using the same tools. The first impairment is said to be the "legal action in 1992-1993, in which Unix Systems Laboratories and Novell (SCO/Caldera's predecessors in interest) sued various parties including the University of California at Berkeley and Berkeley Systems Design, Inc. for alleged copyright infringement, trade secret disclosures, and trademark violations with regard to the release of substantial portions of the 4.4BSD operating system" (OSI Position Paper). The legal action which was in fact two separate lawsuits: the first only involved a denial of a interim injunction sought by USL against Berkeley until a trial could be held (http://cm.bell-labs.com/cm/cs/who/dmr/bsdi/930303.ruling.txt); the second was commenced after the ruling denying the interim injunction was made by Berkeley against USL. Now the Position Paper states that the request for the injunction "was denied in terms that made it clear the judge thought BSD likely to win its defence". I have only read this ruling once and in then a cursory fashion. I have to respectfully disagree with t he conclusion reached by the OSI at this time. And even if the judge did think this it does not decide anything f substance in relation to the copyright claimed by either USL or Berkeley at that point. It merely decided that any injunction would need to await the outcome of the trial. Interim injunctions are often argued and often lost with the final trial many times ending up in favour of those who sought but did not gain the interim injunction. But more to the point it is only a precedent for cases concerning the granting of interim injunctions - nothing more and nothing less. To claim that this ruling "impairs" some rights that SCO might hold does not hold any legal water. Contrary to the facts stated in the Position paper the case was not settled then but after Berkeley commenced their own action against USL. See the discussion at http://www.oreilly.com/catalog/opensources/book/kirkmck.html. That chapter also discusses the second case: "the University's suit claimed that USL had failed in their obligation to provide due credit to the University for the use of BSD code in System V as required by the license that they had signed with the University. If the claim were found to be valid, the University asked that USL be forced to reprint all their documentation with the appropriate due credit added, to notify all their licensees of their oversight, and to run full-page advertisements in major publications such as The Wall Street Journal and Fortune magazine notifying the business world of their inadvertent oversight. Soon after the filing in state court, USL was bought from AT&T by Novell. The CEO of Novell, Ray Noorda, stated publicly that he would rather compete in the marketplace than in court. By the summer of 1993, settlement talks had started. Unfortunately, the two sides had dug in so deep that the talks proceed slowly. With some further prodding by Ray Noorda on the USL side, many of the sticking points were removed and a settlement was finally reached in January 1994. The result was that three files were removed from the 18,000 that made up Networking Release 2, and a number of minor changes were made to other files. In addition, of 1993, settlement talks had started. Unfortunately, the two sides had dug in so deep that the talks proceed slowly. With some further prodding by Ray Noorda on the USL side, many of the sticking points were removed and a settlement was finally reached in January 1994. The result was that three files were removed from the 18,000 that made up Networking Release 2, and a number of minor changes were made to other files. In addition, the University agreed to add USL copyrights to about 70 files, although those files continued to be freely redistributed." See also: http://lists.q-linux.com/pipermail/plug/2003-June/028622.htmlhttp://www.inter est ing-people.org/archives/interesting-people/199402/msg00027.html http://cm.bell-labs.com/cm/cs/who/dmr/bsdi/bsdisuit.htm http://www.sco.com/company/history.html. The Position Paper makes some comments on the import (or impairment caused by these events) I have set them out below with some comments inserted where appropriate): "The exact terms of final settlement, and much of the judicial record, were sealed at Novell's insistence. The key provisions are, however, described in Twenty Years of Berkeley Unix: From AT&T-Owned to Freely Redistributable, [McKusick99]. Only three files out of eighteen thousand in the distribution were found to be the licit property of Novell (and removed). The rest were ruled to be freely redistributable, and continue to form the basis of the open-source BSD distributions today." The words the "rest were ruled" implies some judicial decision making as a part of the settlement. There is none - a settlement of this type is an agreement, a contract binding only the parties to the litigation. There is not legal ruling or precedent achieved. "If the current lawsuit proceeds, justice requires that the court and settlement records in the AT&T-vs.-Berkeley lawsuit be unsealed, with a view to determining the degree to which SCO/Caldera's IP claims are nullified by the results." This seems a curious claim to me, this is a property/contract dispute not an equity matter - justice in the way it is used here may or may not be relevant; and to include the documents in the case may require a substantial evidentary victory. their exclusion as a part of the evidence may impair IBM's case. I am not going to try and examine whether or not the documents may be admissible (yet) but if they are not, which is arguable all of these of impairment come to nought. And even if they were admissible it seems from what I can find that USL/Novell held some property rights (in some files) that were and are capable of being infringed. "If, as SCO/Caldera says, it inherited AT&T/USL/Novell's rights to Unix, it also inherited the res judicata that there are many sources of code and engineering experience in the Unix design tradition entirely independent of AT&T/USL/Novell's intellectual property." Well the simple fact is that there is no res judicata as nothing about anyone's intellectual property has ever been decided by a court: "RES JUDICATA - Lat. "the thing has been decided" The principle that a final judgment of a competent court is conclusive upon the parties in any subsequent litigation involving the same cause of action"; see:http://www.lectlaw.com/def2/q036.htm. "The USL-vs.-Berkeley lawsuit was the first major confrontation that the hackers won. Under the settlement terms, the Berkeley source code - and the Unix tradition with it - achieved the autonomy in law that it had always deserved in the minds of Unix programmers." Well given what I have said above I can't (yet - I hope to be convinced) read the litigation this way. This impairment is also discussed in Halloween IX, but the discussion there doesn't seem to add anything that I haven't dealt with above. But Halloween IX does deal with some other impairments. "Another significant source of impairment is the plethora of existing "perpetual" Unix licenses. These licenses were granted in return for a one-time payment requiring no ongoing royalties; they never expire, and they allow unlimited sublicensing and the creation of derivative works that explicitly belong to the licensee. IBM's original license to System V technology from AT&T is such a license, as shown by language in "Exhibit C" on SCO's own website, which is an amendment/clarification of IBM's System V contract. Paragraph 2 of Exhibit C explicitly allows IBM to create derivative works, and affirms that those derivative works belong entirely to IBM (except for any actual System V code snippets included in them, if any)." Two preliminary things about this. The phrase "if any" leaves open a doubt - there could be some and if there are they are there in breach of contract/copyright. Second, it may be that subsequent agreements between SCO (or its successors in title may have affected these agreements) - we will have to dig a bit deeper to find out. But the point at this time is the impairment may leave open the possibility of some SCO property being used by IBM without permission. "A third source of impairment is the simple fact that tens of thousands of copies of Unix source code have been circulating within the community for three decades. SCO itself puts the number at over 30,000 licensing agreements with 6000 entities (from the same 2003 Q1 SEC filing, bottom of page 20). Maintaining trade secret status on something like that is effectively impossible. One of the authors of this commentary is collecting evidence from senior Unix gurus who have source code to System V and derivatives in their archives, to prove that this code cannot have trade secret status." But does it have status as copyright? Has that copyright been used or incorporated by people in breach of agreements or that copyright? So up until now, the big claim by OSI against SCO having any property in any UNIX has been the so called impairment by the USL litigation. You can see from this I find that a hard one to accept at the moment. Martin "Mind you, I am not asking you to bear witness to what you believe false, which would be a sin, but to testify falsely to what you believe true - which is a virtuous act because it compensates for lack of proof of something that certainly exists or happened." Bishop Otto to Baudolino # distributed via : no commercial use without permission # is a moderated mailing list for net criticism, # collaborative text filtering and cultural politics of the nets # more info: majordomo at bbs.thing.net and "info nettime-l" in the msg body # archive: http://www.nettime.org contact: nettime at bbs.thing.net ------------------------------------------------------- -- "Mind you, I am not asking you to bear witness to what you believe false, which would be a sin, but to testify falsely to what you believe true - which is a virtuous act because it compensates for lack of proof of something that certainly exists or happened." Bishop Otto to Baudolino _______________________________________________ OSS mailing list OSS at list.gov.za http://www.oss.gov.za/mailman/listinfo/oss ------------------------------------------------------- -- :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: "Mind you, I am not asking you to bear witness to what you believe false, which would be a sin, but to testify falsely to what you believe true - which is a virtuous act because it compensates for lack of proof of something that certainly exists or happened." Bishop Otto to Baudolino From sunil at mahiti.org Sat Oct 25 04:52:41 2003 From: sunil at mahiti.org (Sunil Abraham) Date: Fri, 24 Oct 2003 23:22:41 +0000 Subject: [Commons-Law] Hollywood takes anti-piracy message to school Message-ID: <1067037761.827.25.camel@myBox> The global child speaking: "If it's illegal in America, host it in Uzbekistan" -Andrew Irgens-Moller, aged 14. Thanks, Sunil http://www.chron.com/cs/CDA/ssistory.mpl/headline/tech/2176045 SAN FRANCISCO -- As part of its campaign to thwart online music and movie piracy, Hollywood is now reaching into school classrooms with a program that denounces file-sharing and offers prizes for students and teachers who spread the word about Internet theft. The Motion Picture Association of America paid $100,000 to deliver its anti-piracy message to 900,000 students nationwide in grades 5-9 over the next two years, according to Junior Achievement Inc., which is implementing the program using volunteer teachers from the business sector. Civil libertarians object that the movie industry is presenting a tainted version of a complex legal issue -- while the country's largest teachers' lobby is concerned about the incentives the program offers. "What's the Diff?: A Guide to Digital Citizenship" launched last week with a lesson plan that aims to keep kids away from Internet services like Kazaa that let users trade digital songs and film clips: "If you haven't paid for it, you've stolen it." "We think it's a critical group to be having this conversation with," said MPAA spokesman Rich Taylor, suggesting online piracy may not have yet peaked. "If we sit idly by and we don't have a conversation with the general public of all ages, we could one day look back at October of 2003 as the good old days of piracy." The effort doesn't stop in the classroom. Beginning Friday, public service announcements are being released to approximately 5,000 theaters nationwide, profiling people in the movie industry and arguing that digital piracy threatens their livelihoods. Indeed, Jack Valenti, president of the MPAA, told Penn State University faculty and students this week that his industry is in "a state of crisis" over digital theft. But some copyright law experts aren't pleased that the MPAA is the only sponsor for such classroom discussions. They worry that the lesson plans don't address "fair use" constitutional protections for digital copying for personal or educational use. "This is really sounding like Soviet-style education. First they're indoctrinating the students and then having students indoctrinate their peers," said Wendy Seltzer, a lawyer for the Electronic Frontier Foundation. "The takeaway message has got to be more nuanced. Copyright is a complicated subject." Melinda Anderson, a spokeswoman for the National Education Association, says it's unsettling when corporate presence in the classroom is tethered to sponsored incentive programs. In this case, Junior Achievement is offering students DVD players, DVD movies, theater tickets and all-expenses-paid trips to Hollywood for winning essays about the illegalities of file-sharing. Teachers, too, can win prizes for effectively communicating the approved message in class. "What it speaks to is kind of a new era in commercialism emerging in classrooms where the attempts to connect with students are becoming more and more sophisticated. Schools that are often strapped for cash are more tempted to partner with these organizations," Anderson said. "Coming from school, these companies are getting a tacit endorsement for their product," Anderson said. "That's not a school's role -- to be the purveyors." The program got a rocky start during its first presentation, to some relatively cyber-savvy teens at Raoul Wallenberg High School in San Francisco. Andrew Irgens-Moller, 14, buried his head into a backpack on his desk and rolled his eyes as the guest teacher warned of computer viruses and hackers that could take control of a user's desktop via file-sharing programs. He objected that antivirus software could scan downloaded files and only sophisticated hackers could pull off the remote desktop computer takeover. Then the teacher cut him off. Bret Balonick, a tax accountant on loan from PricewaterhouseCoopers to teach the anti-piracy class, was arguing that some downloaders have been affected by malicious activity. Besides, he said, it's illegal to upload and download unauthorized content online. "If it's illegal in America, host it in Uzbekistan," snapped the 14-year-old. Balonick then had the freshmen role-play as singers, actors, producers, computer users. But even the "producers" quietly acknowledged that they too share song files over the Internet. "It's not illegal if you decide to give it away," said Wilson Cen, 13, regarding burning copies of music CDs for his friends. "They don't want you selling them. It's a gift, you're not selling it." Brenda Chen said she uses Kazaa at home: "I just want certain tracks from the CD, not the whole CD. It's a waste of money." David Chernow, Junior Achievement's chief executive, said in a telephone interview that the explosion of peer-to-peer activity among young people is a ripe topic for public school classrooms. "We're really trying to teach young people to be responsible and to obey laws that they may not understand," Chernow said. "Just because it's easy doesn't make it right. -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas, then each of us will have two ideas" George B. Shaw From sunil at mahiti.org Sat Oct 25 05:00:03 2003 From: sunil at mahiti.org (Sunil Abraham) Date: Fri, 24 Oct 2003 23:30:03 +0000 Subject: [Commons-Law] Please help us fight =?iso-8859-7?q?=A1tool_piracy=A2?= Message-ID: <1067038203.827.30.camel@myBox> I guess one lives and learns - Sunil http://www.gripe2ed.com/scoop/story/2003/10/22/221921/32 A small woodworking tool manufacturer, Stots Corporation, includes a license agreement on its TemplateMaster jig tool. The tool is licensed, not sold, and customers cannot sell it or lend it to others. Nor can they sell or lend the jigs they make with it. (Click on “Full Story” link to see details.) Sources: Company Website, Reader Reports ________________________________________________________________________ We’re all familiar with license agreements on software tools that limit what you can with the product. But what about a license agreement on a real tool limiting what you can with the product and the things you make with it? “Shrinkwrap licenses are showing up everywhere,” a reader recently wrote. “I just bought a jig for making dovetailing jigs -- this is woodworker talk if it's unfamiliar to you. The master jig contained a license that says I've licensed the master jig, not bought it. The license says I can't lend or sell the master, and furthermore I can't lend or sell the jigs I make with the master.” The reader was referring to Stots Corporation of Harrods Creek, KY, and the user agreement for its TemplateMaster product. Sure enough, the Stots license says TemplateMaster may be used “in only one shop by the original purchaser only” and that “you may not allow individuals that did not purchase the original Product (to) use the Product or any templates produced using the Product…” A FAQ document on the Stots website explains that the license is necessary because “the purpose of the TemplateMaster is to clone itself. Therefore we are verifying your honesty that only you will use the tool and you will not be passing it around to others to use for free. It is exactly the same as the ‘shrink wrap’ agreement that comes with almost all computer software. Please help us fight ‘tool piracy’.” Challenged as I am to even hammer a nail, I certainly can’t judge the uniqueness of the TemplateMaster product compared to other woodworking tools. The reader doubts it’s particularly novel, in that the template or jig one creates with it will be virtually identical to “Keller” jigs that have been around for many years. “The key difference is that the instructions that came with the Keller jig said, in not so few words ‘here, use this jig to make a dovetail joint’,” the reader said. “The Stots jig, which is geometrically equivalent, comes with instructions that say ‘use a duplicating router bit to copy this jig to make a jig that looks almost exactly the same as me -- and exactly the same as the Keller jig -- then use that jig to make a dovetail joint.” But even assuming the Stots tool is a wonderful innovation, does that give its inventor the right to restrict how you use the tool? The patent law doctrine of exhaustion would seen to overrule such restrictions, but that doctrine took a hit in one recent case. And then what about the idea of restricting how customers use the tools they make with the TemplateMaster? Don’t let the software companies hear about that one, or next thing you know there will be usage restrictions on who we can share our data with -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas, then each of us will have two ideas" George B. Shaw From sudhir75 at hotmail.com Sat Oct 25 00:16:21 2003 From: sudhir75 at hotmail.com (Sudhir Krishnaswamy) Date: Fri, 24 Oct 2003 19:46:21 +0100 Subject: [Commons-Law] HIV AIDS and patent law Message-ID: Recently the South African Competition Regulators have reached a preliminary finding that pharma companies violated competititon law with the pricing of AIDs drugs. Posted below is an article in the Frontline on challenges the patents on AIDS drugs in Thailand. It does seem at this stage that the AIDS crisis will redraw the boundaries of patent law for good! Sudhir A patent war in Thailand R.RAMACHANDRAN http://www.frontlineonnet.com/fl2022/stories/20031107001408100.htm AT the opening, in September in Bangkok, of the 59th Annual Session of the United Nations Economic and Social Commission for Asia and the Pacific (UN-ESCAP), whose theme was "Integrating economic and social concerns, especially HIV/AIDS, to meet the needs of the region", Festus G. Mogae, the President of the Republic of Botswana, made in his keynote address the following remark: "In Botswana's case, we continue to receive extensive support from both the U.S. government and private corporations such as Bristol-Myers Squibb and the Bill and Melinda Gates Foundation and the Merck Foundation." That he chose to say this in Bangkok, knowing full well that in Thailand there is an ongoing legal battle with the drug multinational Bristol-Myers Squibb (BMS) since 2001 over the BMS-patented anti-retroviral (ARV) drug didanosine (DDI), defied explanation. It would have been particularly galling to Thai non-governmental organisations (NGOs) working for the cause of people living with HIV/AIDS (PLWHA). The case against BMS had been moved by two PLWHA support groups and AIDS Access Foundation, an NGO. In October 2002, the Thai Central Intellectual Property and International Trade Court (CIPITC) ruled against BMS, resulting in the revocation of invalid claims with regard to drug dosages made by BMS in its patent application against which a Thai patent had been granted in 1998. It was also a landmark judgment in that this was the first case to take cognisance of the Doha Declaration of November 2001 and the overriding social welfare caveats of Trade-Related Intellectual Property Rights (TRIPS) in arriving at the ruling. The case, however, is far from settled. The company and, interestingly, the Thai Department of Intellectual Property (DIP) have appealed against the verdict in December 2002. In response, the public-owned Thai company, Government Pharmaceutical Organisation (GPO), sought permission from the court to allow it to produce the drug and avoid liability while the appeal is pending. On the other hand, the DIP and BMS both requested deferral of enforcement of the ruling so they can resume producing tablets at any dosage. As of date, however, GPO has been unable to begin production of the drug in the dosage outside the range declared valid by the court. More significantly, a second case has been filed for the revocation of the BMS patent for DDI in its entirety, not just the invalid claims that had provided for an all-sweeping coverage of drug doses and exclusive marketing right in Thailand. A decision on this case is awaited. The Doha Declaration on TRIPS Agreement and Public Health is a statement of commitment by World Trade Organisation (WTO) members to use the flexibility provisions of TRIPS fully so that that "WTO members' right to protect public health and, in particular, to promote access to medicines for all" is upheld. Recognising the importance of public health over private intellectual property, the Declaration clarifies the rights of WTO members in using TRIPS safeguards such as `compulsory licensing' and `parallel imports'. In a public health crisis a country can invoke TRIPS safeguards to override the relevant patent to make the needed medical products available. Thailand has over one million HIV-infected people. One of the main reasons for the DDI controversy has been the high price in Thailand of the drug DDI, marketed under the brand name Videx by BMS. Since the price put it beyond the reach of Thai HIV/AIDS patients, only 5 per cent of them had access to the combination use of the two drugs Zidovudine (AZT) and DDI, according to the Thai Communicable Disease Control Department. Efforts by the Thai government in 1999-2000 to produce the drug under the compulsory licensing provision of TRIPS, as demanded by Thai NGOs and PLWHAs, failed as the United States government brought intense pressure and made a threat of Special 301 sanctions on Thai exports through its trade arm, the U.S. Trade Representative (USTR), in clear violation of its obligations under the WTO. In fact, GPO's attempt at procuring raw materials in December 1999 for DDI from a Japanese company (which is also the main supplier to BMS) also failed because of pressure from BMS. Therefore GPO had to turn to Canadian suppliers who charged twice the price. The BMS case in Thailand is a classic example of the overriding profiteering motives of drug multinationals over access to essential medicines for public health, how companies use patents with minor modifications to establish monopolies and extend the period of patent protection, the bullying trade tactics of the U.S. government and its attempts to preserve the monopoly of its transnational drug companies. DDI was first developed by the U.S. government's National Institutes of Health (NIH) in 1989, which it licensed to BMS for marketing in eight developed countries. The drug in its original form required to be taken along with an antacid buffer because acidity in the stomach was found to reduce the effectiveness of DDI. In a couple of years, BMS developed a formulation that combined both the ingredients in a single tablet. In 1991 BMS filed its first patent application in the U.S. for its new formulation. The U.S. Patent Office rejected its application on the grounds of obviousness. BMS filed another application in 1997 claiming that it had optimised the amount of antacid in the drug which was not obvious. Eventually BMS obtained a U.S. patent, limiting it to specific proportions of the ingredients. In July 1992, with the imminent amendment of the Thai Patent Act (TPA), which did not allow pharmaceutical product patents, BMS applied for a Thai patent for its formulation. In September 1992, the TPA was amended to allow product patents. In the patent application the drug dosage was limited to 5-100 mg of DDI per dose. The application came up for examination in 1997 when the company moved an application to remove the limitation on the dosage range which was essentially the original U.S. application which had been rejected. Strangely enough, the DIP amended the application and granted a patent in January 1998 that covered all DDI doses in the drug. In Thailand, Videx is priced between $2.56 and $4.11 a tablet - a negotiated discounted price as compared to its international price - and the average DDI dosage required is 150 mg, which means two tablets a day. The implication of the unlimited patent was that GPO could not manufacture the drug in any dosage even though it had developed the knowhow to make the generic form of the drug. The exorbitant price of DDI provoked an NGO-led campaign in 1999 to issue compulsory licensing to GPO for the manufacture of DDI. In January 2000, the USTR warned of sanctions if compulsory licensing was issued for DDI. The threat worked and the Thai government refused to invoke the compulsory licensing provision in TPA but asked GPO to manufacture the drug in powder form, which is not covered by the patent. But the powdered form has an unpleasant taste and apparently has side effects that the tablet form does not have. Also, the tablet is easier to consume. The suit against BMS was filed on May 9, 2001. The verdict ruled that the amendment done in the patent application was unlawful and that the scope of BMS's patent was limited to the dose range of 5-100 mg. In principle, therefore, the ruling permits GPO to manufacture generic DDI as tablets in doses outside the patent. According to GPO, even though it is ready to manufacture tablets of 125 mg, 150 mg and 200 mg dosages (at about 45 cents a tablet), it has not yet been able to do so. Interestingly enough, BMS has brought another formulation of DDI (an enteric coated capsule) into the market and the company is bound to initiate similar patent manoeuvres. A KEY unresolved issue in the Doha Declaration was what developing countries and least developed countries (LDCs) with little or no manufacturing capabilities, such as Botswana, to exploit the compulsory licensing provision, were to do in a public health crisis. But even this unfinished aspect was resolved by the WTO decision of August 30 this year. The decision allowed countries not possessing the wherewithal to manufacture generic drugs to import the same from countries, which have the capacity. The decision amounts to a waiver of Article 31(f) of TRIPS (until it is amended), which says that production under compulsory licensing must be predominantly for the domestic market. This effectively limited the ability of countries that cannot make drugs to import cheaper generics from countries with TRIPS-compliant domestic laws. This meant that, for instance, Botswana could not have imported generic ARVs for its HIV/AIDS patients from WTO member-countries where drugs were patented before August 30. However, it can certainly import them from India where the transition period for TRIPS is in operation until 2005 and there are no patents as yet for pharmaceutical products. Indeed, some other African nations have done this with the help of organisations such as Medicins Sans Frontieres (MSF) or `Doctors Without Borders'. Botswana has the world's highest prevalence rate of HIV-positive people (38.8 per cent) in its 1.7-million population. Access to ARV at affordable prices would be of paramount importance to the country's infected population. One could argue that a country like Botswana could do little against the pressures of multinationals and the pharmaceutical lobby within the U.S. government and that it would have been pragmatism that dictated Mogae's decision to negotiate with the multinationals themselves. His UN-ESCAP address is perhaps a signal that he would continue to go that way in spite of the WTO decision. Against an international price of about $10,000 for a year's dosage, the Indian ARV is priced at about $350 and the Thai product is priced even lower. According to MSF, this has already had the impact of drug multinationals, in particular BMS, bringing down their ARV prices to these levels in some African markets, including Botswana. Indeed, BMS has launched a `Four Point Programme to Fight HIV/AIDS in Africa', one of which is to supply its two patented ARVs - DDI and stavudine, sold as Zerit - at "below cost price" ($1 a day), according to the BMS web site. Botswana is one of the countries where this is being implemented. Botswana is also one of the nine African countries to benefit from BMS Foundation's $115 million five-year aid package for HIV/AIDS-related programmes. "We see no conflict," President Mogae said when asked about Botswana's dependence on multinationals like BMS given their apparent double standards. Speaking to journalists, he said: "We cannot wait till the world is perfect. We considered our crisis situation realistically and what we needed was drugs under favourable negotiated conditions with suppliers. We negotiated only the price we could afford. That's what BMS is giving us. Merck has also donated ARV drugs free to us." The WTO decision on importation of essential drugs under compulsory licensing from other countries is more complex than it would seem. It comes with a string of conditions that would invariably get into a complicated bureaucratic process and disputes at the WTO that any country, let alone Botswana, might find it extremely hard to fight multinationals' might. Thailand's ongoing experience with BMS would just suggest that. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20031024/ab59b9d9/attachment.html From sudhir75 at hotmail.com Sat Oct 25 01:26:53 2003 From: sudhir75 at hotmail.com (Sudhir Krishnaswamy) Date: Fri, 24 Oct 2003 20:56:53 +0100 Subject: [Commons-Law] HIV AIDS and patent law References: <1067044247.931.61.camel@myBox> Message-ID: what open source is to copyright law ; hiv/aids is to patent law!! they're both sledgehammers.. sudhir ----- Original Message ----- From: "Sunil Abraham" To: "Sudhir Krishnaswamy" Sent: Saturday, October 25, 2003 2:10 AM Subject: Re: [Commons-Law] HIV AIDS and patent law > On Fri, 2003-10-24 at 18:46, Sudhir Krishnaswamy wrote: > > seem at this stage that the AIDS crisis will redraw the boundaries of > > patent law for good! Sudhir > > Absolutely. According to http://www.accessmed-msf.org/campaign/faq.shtm. > A triple-combination of ARVs costs $10,000 - $15,000 per patient > per year in the US and Europe. However, generic drug producers > have offered to sell the equivalent medicines for as low as $300 > per patient/year. > > That could be a 98% reduction in price. Simplistically you could say > that 50 times more lives will be saved. The number of people living with > HIV [PLWHA] in the world today has risen to 42 million according to UN. > > Thankfully NGOs have realised that that IPR reform has greater systemic > impact than increased fund raising. > > Sunil > > -- > Sunil Abraham, sunil at mahiti.org http://www.mahiti.org > MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' > 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA > Ph/Fax: +91 80 4150580. Mobile: 98455 12611 > "If you have an apple and I have an apple and we exchange apples > then you and I will still each have one apple. > But if you have an idea and I have one idea and we exchange these ideas, > then each of us will have two ideas" George B. Shaw > > > From shamnadbasheer at yahoo.co.in Sat Oct 25 18:25:41 2003 From: shamnadbasheer at yahoo.co.in (=?iso-8859-1?q?Shamnad=20Basheer?=) Date: Sat, 25 Oct 2003 13:55:41 +0100 (BST) Subject: [Commons-Law] HIV AIDS and patent law In-Reply-To: Message-ID: <20031025125541.14503.qmail@web8007.mail.in.yahoo.com> Thanks for that Sudhir, With the South African competition commission using the doctrine of essential facilities to force pharmas to grant licenses to generics manufacturers, one can also see an increasing reliance on competition law to cure some of the evils of excessive monopolization brought about by IP regimes. am not sure if the report by the commission is yet out-but for those interested, here's a news item: regards-shamnad From: "Ben Saul" To: "Shamnad Basheer" We've just had an awesome result on the HIV drugs case in South Africa, with the Competition Commission finding that GlaxoSmithKline South Africa (Pty) Ltd (GSK) and Boehringer Ingelheim abused their dominant market position and engaged in the following restrictive practices: 1. Denied a competitor access to an essential facility 2. Excessive pricing 3. Engaged in an exclusionary act A big congratulations to everyone who worked so hard on this one - the report has not been issued yet, but the substance of our submissions has been upheld. Victory messages from CPT and a Commission statement below. Champagne will soon flow... Ben ----- Original Message ----- From: "Sean Flynn" To: "Ben Saul" Sent: Thursday, October 16, 2003 5:59 PM Subject: SA Comp Com Announcement > Your work paid off. They just announced. They are not releasing the > report yet. But it is very good news. > > > -------- > Competition Commission Finds GSK and BI in Contravention of the Competition > Act > > 16 October 2003 > > The Treatment Action Campaign welcomes the statement below by the > Competition Commission. Just over a year ago, Hazel Tau and 10 others > lodged a complaint at the Competition Commission against GlaxoSmithKline > and Boehringer Ingelheim for excessive pricing of their antiretroviral > medicines. The Competition Commission has now decided to refer this matter > to the Competition Tribunal for ajudication. > > The 11 complainants are: COSATU, the TAC, CEPPWAWU, Hazel Tau, Nontsikelelo > Zwedala, Sindiswa Godwana, Sue Roberts, Isaac Skosana, William Mmbara, > Steve Andrews and Francois Venter. Two additional parties joined the > complaint in February 2003, the AIDS Consortium and a TAC volunteer who > subsequently died of AIDS in June . > > For questions on the Competition Commission case, please contact Jonathan > Berger on 011 717 8600 or 083 419 5779, or Fatima Hassan on 083 279 9962. > > We reprint the Competition Commission Statement below. > > Fact Sheet on the Competition Commission case last updated in October 2002. > Price of Life: a booklet by the AIDS Law Project on the Competition > Commission case. > > MEDIA RELEASE FROM THE COMPETITION COMMISSION > > 16 October 2003 > > Competition Commission finds pharmaceutical firms in contravention of the > Competition Act > > The Competition Commission has found that pharmaceutical firms > GlaxoSmithKline South Africa (Pty) Ltd (GSK) and Boehringer Ingelheim (BI) > have contravened the Competition Act of 1998. The firms have been found to > have abused their dominant positions in their respective anti-retroviral > (ARV) markets. > > In particular the Commission has found the firms have engaged in the > following restrictive practices: > > 1. Denied a competitor access to an essential facility > 2. Excessive pricing > 3. Engaged in an exclusionary act > > The Commission has decided to refer the matter to the Competition Tribunal > for determination. > > Menzi Simelane, Commissioner at the Competition Commission, says," Our > investigation revealed that each of the firms has refused to license their > patents to generic manufacturers in return for a reasonable royalty. We > believe that this is feasible and that consumers will benefit from cheaper > generic versions of the drugs concerned. We further believe that granting > licenses would provide for competition between firms and their generic > competitors." > > "We will request the Tribunal to make an order authorising any person to > exploit the patents to market generic versions of the respondents patented > medicines or fixed dose combinations that require these patents, in return > for the payment of a reasonable royalty. In addition, we will recommend a > penalty of 10% of the annual turnover of the respondents' ARVs in South > Africa for each year that they are found to have violated the Act." > > Simelane said these practices violate the Competition Act of 1998's > prohibitions against excessive pricing (section 8(a)), refusing access to > essential facilities (section 8(b)) and exclusionary acts that have an > anticompetitive effect that outweighs technological, efficiency or other > pro-competitive gains (section 8(c). > > "Indeed the very goals of our Competition Act - promoting development, > providing consumers with competitive prices and product choices, advancing > social and economic welfare and correcting structural imbalances - have > been made difficult in this context by the refusal of the respondents to > license patents." > > The original complaint in this matter was filed by Hazel Tau and others > alleging that GSK and BI were charging excessive prices to the detriment of > consumers for their patented ARV medicines. > > GSK and BI hold patents on certain antiretroviral (ARV) medications used to > treat HIV/AIDS. GSK holds patents in South Africa on AZT (branded as > Retrovir), Lamivudine (branded as 3TC) and AZT/Lamivudine (branded as > Combivir). BI holds patents in South Africa on Nevirapine (NVP) (branded > as Viramune). > > ENDS > > Prepared by: Beachhead Media & Investor Relations > > Dani Cohen 021 469 9000 / 082 897 0443 > > Jennifer Cohen 011 214 2400 /082 468 646 > > On behalf of: The Competition Commission > > Further info: Zolile Ntukwana > > Manager, Compliance Division at the Competition Commission > > 082 774 6017 > > [ENDS] > > > Sudhir Krishnaswamy wrote: Recently the South African Competition Regulators have reached a preliminary finding that pharma companies violated competititon law with the pricing of AIDs drugs. Posted below is an article in the Frontline on challenges the patents on AIDS drugs in Thailand. It does seem at this stage that the AIDS crisis will redraw the boundaries of patent law for good! Sudhir A patent war in Thailand R.RAMACHANDRAN http://www.frontlineonnet.com/fl2022/stories/20031107001408100.htm AT the opening, in September in Bangkok, of the 59th Annual Session of the United Nations Economic and Social Commission for Asia and the Pacific (UN-ESCAP), whose theme was "Integrating economic and social concerns, especially HIV/AIDS, to meet the needs of the region", Festus G. Mogae, the President of the Republic of Botswana, made in his keynote address the following remark: "In Botswana's case, we continue to receive extensive support from both the U.S. government and private corporations such as Bristol-Myers Squibb and the Bill and Melinda Gates Foundation and the Merck Foundation." That he chose to say this in Bangkok, knowing full well that in Thailand there is an ongoing legal battle with the drug multinational Bristol-Myers Squibb (BMS) since 2001 over the BMS-patented anti-retroviral (ARV) drug didanosine (DDI), defied explanation. It would have been particularly galling to Thai non-governmental organisations (NGOs) working for the cause of people living with HIV/AIDS (PLWHA). The case against BMS had been moved by two PLWHA support groups and AIDS Access Foundation, an NGO. In October 2002, the Thai Central Intellectual Property and International Trade Court (CIPITC) ruled against BMS, resulting in the revocation of invalid claims with regard to drug dosages made by BMS in its patent application against which a Thai patent had been granted in 1998. It was also a landmark judgment in that this was the first case to take cognisance of the Doha Declaration of November 2001 and the overriding social welfare caveats of Trade-Related Intellectual Property Rights (TRIPS) in arriving at the ruling. The case, however, is far from settled. The company and, interestingly, the Thai Department of Intellectual Property (DIP) have appealed against the verdict in December 2002. In response, the public-owned Thai company, Government Pharmaceutical Organisation (GPO), sought permission from the court to allow it to produce the drug and avoid liability while the appeal is pending. On the other hand, the DIP and BMS both requested deferral of enforcement of the ruling so they can resume producing tablets at any dosage. As of date, however, GPO has been unable to begin production of the drug in the dosage outside the range declared valid by the court. More significantly, a second case has been filed for the revocation of the BMS patent for DDI in its entirety, not just the invalid claims that had provided for an all-sweeping coverage of drug doses and exclusive marketing right in Thailand. A decision on this case is awaited. The Doha Declaration on TRIPS Agreement and Public Health is a statement of commitment by World Trade Organisation (WTO) members to use the flexibility provisions of TRIPS fully so that that "WTO members' right to protect public health and, in particular, to promote access to medicines for all" is upheld. Recognising the importance of public health over private intellectual property, the Declaration clarifies the rights of WTO members in using TRIPS safeguards such as `compulsory licensing' and `parallel imports'. In a public health crisis a country can invoke TRIPS safeguards to override the relevant patent to make the needed medical products available. Thailand has over one million HIV-infected people. One of the main reasons for the DDI controversy has been the high price in Thailand of the drug DDI, marketed under the brand name Videx by BMS. Since the price put it beyond the reach of Thai HIV/AIDS patients, only 5 per cent of them had access to the combination use of the two drugs Zidovudine (AZT) and DDI, according to the Thai Communicable Disease Control Department. Efforts by the Thai government in 1999-2000 to produce the drug under the compulsory licensing provision of TRIPS, as demanded by Thai NGOs and PLWHAs, failed as the United States government brought intense pressure and made a threat of Special 301 sanctions on Thai exports through its trade arm, the U.S. Trade Representative (USTR), in clear violation of its obligations under the WTO. In fact, GPO's attempt at procuring raw materials in December 1999 for DDI from a Japanese company (which is also the main supplier to BMS) also failed because of pressure from BMS. Therefore GPO had to turn to Canadian suppliers who charged twice the price. The BMS case in Thailand is a classic example of the overriding profiteering motives of drug multinationals over access to essential medicines for public health, how companies use patents with minor modifications to establish monopolies and extend the period of patent protection, the bullying trade tactics of the U.S. government and its attempts to preserve the monopoly of its transnational drug companies. DDI was first developed by the U.S. government's National Institutes of Health (NIH) in 1989, which it licensed to BMS for marketing in eight developed countries. The drug in its original form required to be taken along with an antacid buffer because acidity in the stomach was found to reduce the effectiveness of DDI. In a couple of years, BMS developed a formulation that combined both the ingredients in a single tablet. In 1991 BMS filed its first patent application in the U.S. for its new formulation. The U.S. Patent Office rejected its application on the grounds of obviousness. BMS filed another application in 1997 claiming that it had optimised the amount of antacid in the drug which was not obvious. Eventually BMS obtained a U.S. patent, limiting it to specific proportions of the ingredients. In July 1992, with the imminent amendment of the Thai Patent Act (TPA), which did not allow pharmaceutical product patents, BMS applied for a Thai patent for its formulation. In September 1992, the TPA was amended to allow product patents. In the patent application the drug dosage was limited to 5-100 mg of DDI per dose. The application came up for examination in 1997 when the company moved an application to remove the limitation on the dosage range which was essentially the original U.S. application which had been rejected. Strangely enough, the DIP amended the application and granted a patent in January 1998 that covered all DDI doses in the drug. In Thailand, Videx is priced between $2.56 and $4.11 a tablet - a negotiated discounted price as compared to its international price - and the average DDI dosage required is 150 mg, which means two tablets a day. The implication of the unlimited patent was that GPO could not manufacture the drug in any dosage even though it had developed the knowhow to make the generic form of the drug. The exorbitant price of DDI provoked an NGO-led campaign in 1999 to issue compulsory licensing to GPO for the manufacture of DDI. In January 2000, the USTR warned of sanctions if compulsory licensing was issued for DDI. The threat worked and the Thai government refused to invoke the compulsory licensing provision in TPA but asked GPO to manufacture the drug in powder form, which is not covered by the patent. But the powdered form has an unpleasant taste and apparently has side effects that the tablet form does not have. Also, the tablet is easier to consume. The suit against BMS was filed on May 9, 2001. The verdict ruled that the amendment done in the patent application was unlawful and that the scope of BMS's patent was limited to the dose range of 5-100 mg. In principle, therefore, the ruling permits GPO to manufacture generic DDI as tablets in doses outside the patent. According to GPO, even though it is ready to manufacture tablets of 125 mg, 150 mg and 200 mg dosages (at about 45 cents a tablet), it has not yet been able to do so. Interestingly enough, BMS has brought another formulation of DDI (an enteric coated capsule) into the market and the company is bound to initiate similar patent manoeuvres. A KEY unresolved issue in the Doha Declaration was what developing countries and least developed countries (LDCs) with little or no manufacturing capabilities, such as Botswana, to exploit the compulsory licensing provision, were to do in a public health crisis. But even this unfinished aspect was resolved by the WTO decision of August 30 this year. The decision allowed countries not possessing the wherewithal to manufacture generic drugs to import the same from countries, which have the capacity. The decision amounts to a waiver of Article 31(f) of TRIPS (until it is amended), which says that production under compulsory licensing must be predominantly for the domestic market. This effectively limited the ability of countries that cannot make drugs to import cheaper generics from countries with TRIPS-compliant domestic laws. This meant that, for instance, Botswana could not have imported generic ARVs for its HIV/AIDS patients from WTO member-countries where drugs were patented before August 30. However, it can certainly import them from India where the transition period for TRIPS is in operation until 2005 and there are no patents as yet for pharmaceutical products. Indeed, some other African nations have done this with the help of organisations such as Medicins Sans Frontieres (MSF) or `Doctors Without Borders'. Botswana has the world's highest prevalence rate of HIV-positive people (38.8 per cent) in its 1.7-million population. Access to ARV at affordable prices would be of paramount importance to the country's infected population. One could argue that a country like Botswana could do little against the pressures of multinationals and the pharmaceutical lobby within the U.S. government and that it would have been pragmatism that dictated Mogae's decision to negotiate with the multinationals themselves. His UN-ESCAP address is perhaps a signal that he would continue to go that way in spite of the WTO decision. Against an international price of about $10,000 for a year's dosage, the Indian ARV is priced at about $350 and the Thai product is priced even lower. According to MSF, this has already had the impact of drug multinationals, in particular BMS, bringing down their ARV prices to these levels in some African markets, including Botswana. Indeed, BMS has launched a `Four Point Programme to Fight HIV/AIDS in Africa', one of which is to supply its two patented ARVs - DDI and stavudine, sold as Zerit - at "below cost price" ($1 a day), according to the BMS web site. Botswana is one of the countries where this is being implemented. Botswana is also one of the nine African countries to benefit from BMS Foundation's $115 million five-year aid package for HIV/AIDS-related programmes. "We see no conflict," President Mogae said when asked about Botswana's dependence on multinationals like BMS given their apparent double standards. Speaking to journalists, he said: "We cannot wait till the world is perfect. We considered our crisis situation realistically and what we needed was drugs under favourable negotiated conditions with suppliers. We negotiated only the price we could afford. That's what BMS is giving us. Merck has also donated ARV drugs free to us." The WTO decision on importation of essential drugs under compulsory licensing from other countries is more complex than it would seem. It comes with a string of conditions that would invariably get into a complicated bureaucratic process and disputes at the WTO that any country, let alone Botswana, might find it extremely hard to fight multinationals' might. Thailand's ongoing experience with BMS would just suggest that. _______________________________________________ commons-law mailing list commons-law at sarai.net https://mail.sarai.net/mailman/listinfo/commons-law Yahoo! India Matrimony: Find your partner online.Post your profile. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20031025/ab425af7/attachment.html From sudhir75 at hotmail.com Sat Oct 25 21:22:08 2003 From: sudhir75 at hotmail.com (Sudhir Krishnaswamy) Date: Sat, 25 Oct 2003 16:52:08 +0100 Subject: [Commons-Law] HIV AIDS and patent law References: <20031025125541.14503.qmail@web8007.mail.in.yahoo.com> Message-ID: There's a very good issue of the Techonological Innovation and Intellectual Property on this topic. For those who are interested... http://www.researchoninnovation.org/tiip/index.htm Issue 2003.3 Patents, Pharma and the Third World -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20031025/1b0e5668/attachment.html From sunil at mahiti.org Thu Oct 30 06:08:39 2003 From: sunil at mahiti.org (Sunil Abraham) Date: Thu, 30 Oct 2003 00:38:39 +0000 Subject: [Commons-Law] Statement of the Librarian of Congress Relating to Section 1201 Rulemaking Message-ID: <1067474318.771.5.camel@myBox> http://www.copyright.gov/1201/docs/librarian_statement_01.html In accordance with section 1201(a)(1) of the copyright law, I am today issuing a final rule that sets out four classes of works that will be subject to exemptions for the next three years from the statute's prohibition against circumvention of technology that effectively controls access to a copyrighted work. This is the second time that I have issued such a rule, which the Digital Millennium Copyright Act (DMCA) requires that I do every three years. These exemptions expire after three years, unless proponents prove their case once again. As required by the DMCA, the Register of Copyrights has conducted a rulemaking and made a recommendation to me on this matter. I have accepted the Register's recommendation and determined that for the next three years, persons who engage in noninfringing uses of copyrighted works in these four classes will not be subject to the statutory prohibition against circumvention of access controls. It is important to understand the purposes of this rulemaking, as stated in the law, and the role I have in it. The rulemaking is not a broad evaluation of the successes or failures of the DMCA. The purpose of the proceeding is to determine whether current technologies that control access to copyrighted works are diminishing the ability of individuals to use works in lawful, noninfringing ways. The DMCA does not forbid the act of circumventing copy controls, and therefore this rulemaking proceeding is not about technologies that control copying. Some of the people who participated in the rulemaking did not understand that and made proposals based on their dissatisfaction with copy controls. Other participants sought exemptions that would permit them to circumvent access controls on all works when they are engaging in particular noninfringing uses of those works. The law does not give me that power. The focus in this rulemaking is on whether people have been adversely affected by access controls in th ir ability to make noninfringing uses of particular classes of copyrighted works. Congress has directed me to exempt particular classes of works if the case has been made that such an adverse impact exists or will exist in the next three years. These exemption are in place for only three years, but may be renewed if a case has been made that they are needed. As Congress intended, this rulemaking has considered a wide range of possible adverse impacts. There was broad public participation in this rulemaking. Fifty-one individuals or organizations proposed one or more classes of works for exemption, and 338 commented on those proposals. The Copyright Office conducted six days of public hearings in April and May: four in Washington and two in Los Angeles, California. Transcripts of the hearings and copies of all the comments and reply comments and other information received by the Copyright Office were posted promptly on the Office's official website to ensure that the process was as open as possible. The Register of Copyrights and her staff have conducted a careful and extensive evaluation of the entire record in the proceeding and determined that proponents of exemptions have demonstrated that the prohibition on circumventing access controls has had a substantial adverse effect on the ability of people to make noninfringing uses of four particular classes of copyrighted works. The Register has given me her analysis and recommendation, and today I have signed a document providing that persons making noninfringing uses of these four classes of works will not be subject to the prohibition against circumventing access controls during the next three years. The four classes of works are: 1. Compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications that are intended to prevent access to domains, websites or portions of websites, but not including lists of Internet locations blocked by software applications that operate exclusively to protect against damage to a computer or computer network or lists of Internet locations blocked by software applications that operate exclusively to prevent receipt of email. 2. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. 3. Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access. 4. Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the ebook's read-aloud function and that prevent the enabling of screen readers to render the text into a specialized format. Two of these classes of works are very similar to the two classes of works that were exempted three years ago, but they have been modified to take into account the somewhat different cases that were presented to the Register this year. One of these two new classes of works will provide some relief to libraries and archives in their preservation activities, and the other will assist the blind and visually disabled in their ability to gain meaningful access to digital materials. -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas, then each of us will have two ideas" George B. Shaw From lawrenceliang99 at yahoo.com Thu Oct 30 23:34:45 2003 From: lawrenceliang99 at yahoo.com (Lawrence Liang) Date: Thu, 30 Oct 2003 10:04:45 -0800 (PST) Subject: [Commons-Law] Fwd: [Reader-list] George Monbiot: The flight to India (The Guardian) Message-ID: <20031030180445.52492.qmail@web13608.mail.yahoo.com> Note: forwarded message attached. __________________________________ Do you Yahoo!? Exclusive Video Premiere - Britney Spears http://launch.yahoo.com/promos/britneyspears/ -------------- next part -------------- An embedded message was scrubbed... From: "geert lovink" Subject: [Reader-list] George Monbiot: The flight to India (The Guardian) Date: Thu, 30 Oct 2003 12:47:21 +1000 Size: 10245 Url: http://mail.sarai.net/pipermail/commons-law/attachments/20031030/4cc131b4/attachment.mht From sunil at mahiti.org Fri Oct 31 05:05:07 2003 From: sunil at mahiti.org (Sunil Abraham) Date: Thu, 30 Oct 2003 23:35:07 +0000 Subject: [Commons-Law] Berners-Lee comes out fighting to save Web Message-ID: <1067556906.786.54.camel@myBox> Berners-Lee comes out fighting to save Web http://www.theregister.co.uk/content/6/33692.html Inventor of the World Wide Web and head of the W3C, Tim Berners-Lee, has taken the unprecedented decision to actively fight a patent case, claiming it will undermine the Internet and wipe out huge swathes of Net history. Berners-Lee is well known for his robust defence of open, royalty-free standards as the only way to progress with the Internet, but in the case of US patent 5,838,906, he has written personally to the director of the US Patent and Trademark Office, James Rogan, to insist he review the awarded patent. “Removing the improperly disruptive effect of this invalid patent is important not only for the future of the Web, but also for the past,” Berners-Lee writes. He goes on to argue: “The practical impact of withholding unrestricted access to the patented technology from use by the Web community will be to substantially impair the usability of the Web for hundreds of millions of individuals in the United States and around the world.” The letter also refers to an extensive document put forward by the W3C to dispute the patent’s validity. The W3C claims that there is extensive “prior art” with regard to what the patent covers i.e. someone had already stuck the flag on the summit. It says, among other things, that the “EMBED” tag that the patent claims ownership of was put forward in HTML+ meetings a year before the patent was filed. The patent itself - enticingly titled “Distributed hypermedia method for automatically invoking external application providing interaction and display of embedded objects within a hypermedia document” - was filed in October 1994 and approved in November 1998. It effectively claims rights over any form of content embedded and run inside a single webpage. While many media applications run in external viewers these days - think the separate RealOne player - Mr Berners-Lee is concerned that by making all inline content apps subject to patent, it would effectively wipeout millions, billions of webpages that form the history of the Web. How? Because the people that own the patent, Eolas Technologies Inc, decided they would use their patent to sue Microsoft, claiming infringement in Internet Explorer. In August, a judge agreed and awarded Eolas $521 million. Microsoft is currently appealing the decision but it has already made clear it plans to redesign Explorer to bypass the patent. Berners-Lee is no friend of Microsoft, particularly since Explorer regularly steamrollers over the W3C efforts to build international standard consensus by including its own proprietary features. However in this case, he is infuriated by companies attempting to claim ownership of parts of the system he helped build just to sue other companies and build a fat bank balance. If Explorer does change, it will not be backwards compatible - another nasty precedent that W3C is desperate to avoid. However, there is also a wider point and argument here. The whole issue of software patents recently came up in Europe as the EU debated whether to change its laws in order to come into line with the US and Japan. They are starting to be used as weapons and will soon have worldwide reach. While there are many good arguments for patents and trademarks in this field, the main examples recently (SCO’s Unix argument, for one) have been used only for negative or damaging reasons and not as drivers of innovation and protection, as their supporters claim. It is hard to see how anyone in the world, save Eolas, benefits from a wide-ranging and general patent covering how content is dealt with within browsers. Worse than that, the patent office is regularly accused of passing patents and trademarks without due care and attention, particularly with regard to the nebulous and intangible software market. But the law is the law and Berners-Lee’s request that the patent be reviewed could be a vital test case. It could also demonstrate a shift in the W3C’s approach to protecting the Internet through benign and persuasive influence to becoming an active, aggressive organisation towards those companies whose self-interest overrides the wider health of the Net. Only recently, the W3C made a strong statement against the use of any code, protocol, etc that had a patent on it. W3C standards, was the message, will be royalty-free, not matter what. The US Patent and Trademark Office will take around 90 days to decide whether to launch a formal re-evaluation of the patent. It could prove to be a turning point in the Net’s history. ® -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas, then each of us will have two ideas" George B. Shaw