From prashant at nalsartech.org Wed May 3 12:30:00 2006 From: prashant at nalsartech.org (Prashant Iyengar) Date: Wed, 03 May 2006 12:30:00 +0530 Subject: [Commons-Law] ISSUE OF PRODUCT PATENTS TO BE BROUGHT DOWN TO 6 MONTHS Message-ID: <20060503123000.30oc61nrmvugwwg0@www.nalsartech.org> ISSUE OF PRODUCT PATENTS TO BE BROUGHT DOWN TO 6 MONTHS Source: The Hindu New Delhi,May 2:Dr Ajay Dua, Secretary, Department of Industrial Policy and Promotion, said that the minimum time limit to issue product patents would be brought down to six months from the present three years and the maximum period to six years from the current 12 years. ``The new rules will be notified within a day or two," he said. While speaking at a meeting organised by industry chamber FICCI, he said the Government would invest Rs 130 crore for modernisation of the patent office and to set up an Intellectual Property Management Institute in Delhi. Security concerns On the US demand for lifting of the FDI caps, Dr Dua said that India's own concerns would have to be examined. He cited the restrictions in the US on what foreigners can own based on security considerations. "Our regulations are also based on similar concerns of protecting domestic employment and national security," he pointed out. Speaking at the meeting, the US Under Secretary of Commerce for International Trade, Mr Franklin L. Lavin, advised India to lower agricultural tariffs, ensure governance that is free of corruption, a transparent and efficient legal system, a vibrant intellectual property rights (IPR) regime and fully open its retail sector to foreign investment. IPR protection Regarding IPR, Mr Lavin said India still does not have in place a TRIPS-consistent data exclusivity regime. "Many perceive an uneven enforcement of India's existing trademark and copyright laws. Indian consumers and businesses deserve the finest IPR protection around. India should be a global leader in pharmaceutical research and development. But until the IPR laws are world-class, research and development will take place elsewhere," he declared. MoA with FAA Mr Lavin further announced the opening of the first-ever Federal Aviation Administration (FAA) office in New Delhi that will enable the US to work with India through a philosophy of managed growth in aviation to ensure the highest level of safety and efficiency. He said, the Indian Government's signing of a Memorandum of Agreement with the FAA will pave the way for the FAA to work more closely with the Ministry of Civil Aviation to provide technical cooperation, which could include a wide range of activities for air traffic control and safety oversight as well as other types of training and assistance. Calls on Kamal Nath Mr Lavin, today also called on the Union Commerce and Industry Minister, Mr Kamal Nath, and discussed bilateral trade and investment possibilities. Both sides underlined the huge untapped potential to increase bilateral trade and investment. It was indicated at the meeting that an Infrastructure Summit for US investors would be organised in Mumbai by the Department of Industrial Policy & Promotion (DIPP) on November 29-30, back-to-back with the India Economic Summit of the World Economic Forum (WEF) and the Confederation of Indian Industry (CII). As a prelude to this, an event is also planned in Washington in June this year in collaboration with the US-India Business Council (USIBC). In a separate meeting with the Commerce Secretary, Mr S.N. Menon, the visiting US dignitary said that he would like to explore a round table on pharmaceuticals and a business mission under the aegis of Commercial Dialogue. © Copyright 2000 - 2006 The Hindu Business Line http://www.nalsartech.org/tikiwiki/tiki-read_article.php?articleId=13861 From karim at sarai.net Wed May 3 11:51:38 2006 From: karim at sarai.net (Aniruddha Shankar) Date: Wed, 03 May 2006 11:51:38 +0530 Subject: [Commons-Law] Nangla: Supreme Court stays demolitions Message-ID: <9F02518E-A8B6-4D84-BD42-56334D12BF25@sarai.net> On the 5th of April the High Court had ordered that the undemolished houses in Nanglamachi be "removed" without waiting for resettlement of the affected persons. During the last month the teachers and staff of the Ankur Society for Alternatives in Education and Cybermohalla practitioners have been working tirelessly to prevent the destruction of the homes that remain in Nangla. They have been collecting and verifying documentation, conducting interviews and have produced a substantial narrative that testifies to the fact that NanglaMachi has been settled for 25 years, and that the inhabitants of Nanglamachi came to Delhi to look for work. Apart from government documentation such as decades old Ration Cards, Below Poverty Line Certificates and Voter ID cards, a clear picture also emerges that Nangla was literally created by these people on top of a toxic fly ash swamp on the banks of the Yamuna decades ago. This narrative has been critical in the framing of a writ petition before the Supreme Court which, after laying out the background and context of the inhabitants of Nangla seeks to stop the impending demolitions. The petition draws on established law flowing from the Constitution, the decisions of the Supreme Court, international laws and covenants, natural justice and, critically, the established scheme of the Delhi State Government on the relocation of settlements such as Nangla that was framed with the approval of the Central Government. This scheme states that those who have established their homes before 31.01.1990 are entitled to an 18 sq.m. plot of land while those who have established their homes between 01.02.1990 and 31.12.1998 are entitled to a plot of 12.5 sq.m. The scheme states that the relocation would be partially financed by the relocatees who will pay a sum of Rs. 7,000/- before being allotted a site. The policy also states that the emphasis will not be on large scale relocations and that relocations will not take place without a specific use being envisaged for the site to be cleared. In my opinion, this is very important, as there is no clear statement from anyone setting out the purpose for which the land that Nangla stands on now will be used. The scheme states that the major emphasis will be on in-situ upgradation of the settlement, through widening of roads and alignment of plots and that the settlements would come under the Environmental Improvement in Urban Areas Scheme which looks at the provision of basic amenities and sanitation. This policy has been affirmed by the Supreme Court which has further stated that the land plots should be situated near adequate transport and other resources. The petition argues that the demolition of Nangla has taken place in complete contravention of these established practices and laws. In my opinion, this is an example of the Court exercising the administrative and executive functions that are the duty and right of the state, part of a larger process whereby the judiciary is "forced" to "step in" to "stem the rot". The petition claims that almost all residents of Nangla are fully covered by the extant scheme of the State government and that the order of removal ignores this fact. In an order granting interim relief to the petitioners, the Supreme Court has stayed the demolitions until the 9th of May, 2006. So a thin ray of hope for the Nanglamachi residents but to sound a note of caution, this is a very pivotal arena which we have now entered. An adverse decision by this court could affect the lives of hundreds of millions of people. Much hangs in the balance. Will keep you all posted. If anyone wants a copy of the order, the petition or the synopsis, please mail me. Aniruddha Shankar From seth.johnson at RealMeasures.dyndns.org Thu May 4 00:07:45 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Wed, 03 May 2006 14:37:45 -0400 Subject: [Commons-Law] EU Community Patent Policy Advancing? Message-ID: <4458F879.29A89512@RealMeasures.dyndns.org> (Many observe that this is a backdoor way to eliminating the present ban on software patents in Europe. -- Seth) > http://www.infoworld.com/article/06/05/03/78036_HNeupatentagreement_1.html?source=NLC-BUS2006-05-03 EU moves ahead on patent agreement Legislation would pave the way for a single patent court for the whole of the union By Paul Meller, IDG News Service May 03, 2006 The European Commission hinted Wednesday that some progress has been made toward forging a European Union patent agreement -- a wish by politicians across the Continent for more than three decades. Gunter Verheugen, vice president of the Commission, told journalists he was "slightly more optimistic" about breaking the deadlock that has thwarted efforts for an agreement. At the beginning of this year the Commission said it was making one final effort to push through legislation that would pave the way for one single patent system, with one litigation procedure involving a single patent court for the whole of the union. The last attempt was made in 2000 but member states squabbled over what languages the E.U. patent should be translated into and there has been gridlock ever since. In October 2000 some countries proposed an interim solution, dubbed the London Agreement, to break the deadlock over languages. The agreement would excuse countries with English, German or French as their official languages from having to translate patents at all. Other countries would have to issue their patents in the local language, plus one of the three official languages of the European Patent Office (EPO). France is the only country to have signed up to the London Agreement so far. Alain Pompidou, president of the EPO, who was attending the press conference with Verheugen, urged politicians to hurry up and ratify the London Agreement. "The London Agreement shows the way for the Community Patent, which we all want to see," Pompidou said. In January the Commission opened a three-month consultation period, seeking views from industry and the worlds of science and academia. The consultation finished at the end of last month and the Commission is examining the written responses it received. It will host a hearing in July to discuss the issues raised in the consultation. Verheugen said no date has been fixed for the ratification of the London Agreement yet. Despite expressing some optimism that it will happen he also warned that some countries in the union are contemplating breaking off from any multinational efforts. "Some countries want to roll back the responsibilities of the European Patent Office to national level," he said, adding that he is "concerned" to hear some countries consider such an idea. "Business needs more Europe in this regard, not less," he said. The EPO receives around 160,000 applications and awards patents to around 60,000 inventions each year. According to Pompidou, around half of the applicants come from outside Europe. Companies based in the U.S. apply for more patents than companies from any other country, followed by Germany, Pompidou said. From seth.johnson at RealMeasures.dyndns.org Thu May 4 06:23:23 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Wed, 03 May 2006 20:53:23 -0400 Subject: [Commons-Law] ArsTechnica: XCasting Treaty Blocks Freedoms Message-ID: <44595083.9FB98C3E@RealMeasures.dyndns.org> > http://arstechnica.com/news.ars/post/20060503-6742.html UN Broadcasting Treaty seen as severely limiting essential freedoms 5/3/2006 4:04:20 PM, by Anders Bylund (anders at arstechnica.com ) A remarkably unacceptable treaty proposal is currently being pushed through the U.N. World Intellectual Property Organization's Standing Committee on Copyright and Related Rights, seemingly concieved by the RIAA and MPAA and backed by traditional old-line media businesses (http://arstechnica.com/news.ars/post/20060222-6237.html). The Broadcasting Treaty, currently undergoing review at a UN convention in Geneva, Switzerland, contains passages that would severely restrict the concepts of fair use (http://arstechnica.com/news.ars/post/20060121-6025.html) and freedom of speech—on a global level. IP Watch has an excellent overview of the issues (http://www.ip-watch.org/weblog/index.php?p=286&res=1024_ff&print=0): The proposed broadcasting treaty would create entirely new global rights for broadcasting companies who have neither created nor own the programming. What's even more alarming is the proposal from the United States that the treaty regulate the Internet transmission of audio and video entertainment. It is dangerous and inappropriate for an unelected international treaty body to undertake the task of creating entirely new rights, which currently exist in no national law, such as webcasting rights and anti-circumvention laws related to broadcasting. A global treaty is not the place for experimentation with new rights, but rather for the harmonization of existing legal norms. WIPO treads on shaky ground by proposing to create new rights that no elected body in the world has yet agreed to. Under the treaty, broadcasters such as cable companies, radio stations, and Webcasting operators would essentially take over the rights to control material broadcast over the Internet (http://observer.guardian.co.uk/business/story/0,6903,1237374,00.html), to the point where the original content creator would have to "beg permission from broadcasting companies in order to make any use of their own performances." If you don't think you should care about a measure like this, consider the effects it could have on freedoms we take for granted today in the US: For example, if US President Bush gave an interview to Fox News, Fox could prevent any subsequent use of that footage including fair use, commentary, or criticism of President Bush - at its sole discretion - under the new anti-circumvention rights created by this treaty. Much of the political humor available on Comedy Central's "The Jon Stewart Show" could become illegal under this treaty. In addition, countries signed to the agreement would have to enforce the implementation of DRM shackles (http://arstechnica.com/news.ars/post/20051227-5852.html) akin to the proposed Broadcast Flag (http://arstechnica.com/news.ars/post/20060303-6310.html), harsh enough that even Intel objects (http://drn.okfn.org/node/118). Because you can never protect your pilfered ownership rights too much, you know. Unsurprisingly, the EFF has voiced its opposition to the proposal (http://www.eff.org/deeplinks/archives/004619.php): As we've noted elsewhere, EFF believes that these new rights will stifle innovation, create a new layer of liability for Internet intermediaries, impair consumers' existing rights, restrict the public's access to knowledge and culture, and change the nature of the Internet as a communication medium. Many of these concerns could be addressed by limiting the scope of the treaty to its intended purpose—signal theft. Unfortunately the new draft doesn't remove any of our concerns, but only deepens them. It's disturbing how often it happens that innocuous or even positive legal drafts get additional and often quite scary addendums tacked on along the way toward final approval. And opposing views seem to have a tendency to be overlooked, ignored, or pushed aside. In this case, a majority of the UN member states have already rejected the Webcasting inclusions, but that hasn't stopped the current draft of the main document from retaining that language. Instead, many of the proposed changes that would lead to lesser broadcaster controls and better protection of basic freedoms have been thrown out or relegated to a separate document (http://arstechnica.com/news.ars/post/20051102-5517.html). "Core" parts of the proposal form the Draft Basic Proposal, while "alternatives" make up the Draft Working Paper, where parties to the treaty are free to opt out of individual clauses. Several countries have complained about their voices not being heard in this process, and after this week's discussions, the draft most likely goes on to receive the official stamp of approval. Is the whole world really that eager to protect the interests of big, established media to the detriment of independent expression? From seth.johnson at RealMeasures.dyndns.org Thu May 4 15:52:22 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Thu, 04 May 2006 06:22:22 -0400 Subject: [Commons-Law] VoIP/CALEA: EFF, Others Call for Reversal of FCC CALEA Expansion for VoIP Message-ID: <4459D5DE.4AD04D37@RealMeasures.dyndns.org> > http://www.eff.org/deeplinks/archives/004624.php May 03, 2006 EFF Urges Reversal of FCC's Forcing Internet Services To Be Wiretap-Friendly On May 5, the DC Circuit Court of Appeals will hear oral arguments in a suit brought by EFF and a coalition of public interest, industry, and academic groups challenging the FCC's unjustified expansion of the Communications Assistance for Law Enforcement Act (CALEA) (http://www.eff.org/Privacy/Surveillance/CALEA/). By forcing broadband Internet and interconnected voice over Internet Protocol (VoIP) services to become wiretap-friendly, the FCC ignored CALEA's plain language and threatened privacy, security, and innovation. When Congress controversially passed CALEA in 1994 and gave the FCC powers to mandate backdoors in traditional telephony systems, it expressly exempted "information services" such as the Internet. Yet after a petition from the FBI and other federal law enforcement agencies, the FCC ruled last year that companies like Vonage and private institutions that provide Net access must redesign their networks to facilitate wiretaps. On Wednesday, the FCC announced that these service providers would have to foot the bill -- an estimated $7 billion dollars for the universities alone (http://news.com.com/FCC+approves+Net-wiretapping+taxes/2100-1028_3-6067971.html?tag=nefd.lede). The FCC completely failed to give the law enforcement petitions the "hard look" that the public deserves when massive government surveillance proposals are on the table. While the FCC's unfunded tech mandate will undoubtedly harm the public, the government made no showing that there was any need to extend CALEA to Internet services at all. Indeed, just this past Monday, the Administrative Office of the U.S. Courts issued its annual wiretap report -- which revealed that only 8 court orders for Internet wiretaps were issued in 2005, down from 12 orders in each of the years 2003 and 2004 -- and the report contains no indication that law enforcement had any problems in conducting these electronic surveillances. Petitioners in American Council on Education v. FCC include the American Library Association, the Center for Democracy and Technology, Electronic Privacy Information Center, EDUCAUSE, Pulver.com, and Sun Microsystems. Read the petitioners' opening and reply briefs here (http://www.eff.org/Privacy/Surveillance/CALEA/20060126ace-opening-brief.pdf) (http://www.eff.org/Privacy/Surveillance/CALEA/20060314calea.pdf). Posted by Derek Slater at 04:27 PM | CALEA (http://www.eff.org/deeplinks/archives/cat_calea.php) | Permalink (http://www.eff.org/deeplinks/archives/004624.php) | Technorati (http://www.technorati.com/search/www.eff.org%2Fdeeplinks%2Farchives%2F004624.php) From seth.johnson at RealMeasures.dyndns.org Thu May 4 18:24:25 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Thu, 04 May 2006 08:54:25 -0400 Subject: [Commons-Law] Love: WIPO Carves up Internet (and Broadcast Spectrum) Message-ID: <4459F981.A5D492D3@RealMeasures.dyndns.org> -------- Original Message -------- Subject: [Random-bits] WIPO carves up the Internet (and the broadcast spectrum) Date: Thu, 4 May 2006 08:27:05 -0400 From: James Love To: random-bits at lists.essential.org,a2k discuss list > http://www.huffingtonpost.com/james-love/wipo-carves-up-the-intern_b_20336.html WIPO carves up the Internet (and the broadcast spectrum) May 4, 2006 James Love Don't bother reading this unless the words "new intellectual property right" and "the Internet" seem important when put together, because it is a twisted and complicated story. Even the key players are struggling to figure out what is going on. But like a lot of twisted and complicated things, it is important. The World Intellectual Property Organization (WIPO) is a specialized UN agency, headquartered in Geneva, Switzerland. This week it is holding a contentious five-day negotiation on a new Treaty, the purpose of which is to provide a new "protection" for "broadcasting and webcasting organizations." What does this mean? WIPO is debating whether or not to create a new intellectual property right in information that is distributed over television, radio, cable television, or through any wired or wireless computer network, including the Internet. This is something different from copyright. Indeed, it is designed to benefit people who cannot get a copyright, because a work belongs to someone else (the person or group that created it), or because the information is in the public domain. The new right is not a "copyright," but a "broadcaster" or "webcaster" right. It is a bad idea when applied to television or radio, but a disaster if applied to the Internet. In different ways, the US and the EU both think they can use this right to extract money for simply distributing information over the Internet into foreign markets. The right comes at the expense of consumers and copyright owners -- benefiting the distributors of information. It might be called the "middleman right." This has attracted a large group of corporate lobbyists who want to see their clients named as beneficiaries of the treaty. It works like this. If the owner of a broadcasters or webcaster publishes anything, they get an ownership right in the information, equal to the rights of copyright owner, so before you could make a copy, share or reuse the information in any way, you would have to get permissions from both the copyright owner and distributor of the work. This is supposed to "protect" the "caster" for its investments in broadcasting or webcasting. The meetings at WIPO are chaired by a very strong advocate of high levels of intellectual property rights, Jukka Liedes, from Finland. The European Union, the United States Government and several other governments want this new right to last 50 years, beginning each time information is republished. This new right only applies to copies of the works distributed by the "casting" organization, so if you can get a copy from another source, it would not apply, something that would not be a problem if the work was a Hollywood film or music recording widely available elsewhere in DVD or CD formats. But for a number of other works, there just won't be any practical or cost effective way of getting a copy from another source. (Which makes the "casting" right so valuable). Why is this such a big deal, and particularly for the Internet? First, there are lots of important works that are not protected by copyright, including events of high public interest such as presidential speeches, recordings of US Supreme Court debates, recordings of meetings and telephone calls by several US presidents, and some Congressional hearings. And, there are far more works that are technically protected by copyright, but which are in practice freely available, because the owners of the work want to share it widely, or do not choose to enforce restrictions on how a work is reused. Web pages are full of documents, sound recordings and video that are licensed under Creative Commons licenses, or simply passed around informally. Information on the Internet often is republished on many different web sites, each reaching its own communities. This is exploding at an astonishing rate as the costs of making and hosting works falls. Within a short time, anyone will be able to create a webcast from a mobile phone, and create records of meetings of all types, news events, performances, interviews, or any number of other events. Increasingly, people are using these works to create newer works, in documentaries, news reports and commentary, or cultural or technical works that remix or mashup content. Grid Computing and other emerging technologies are creating astonishingly creative and important ways of collaborating. Copyright alone presents huge problems for the distribution of and creation of these new Internet based works. But a new intellectual property right for webcasting will make things even more difficult, at least doubling the permissions one needs. At a minimum it will increase transaction costs. At worst, it will change the culture of sharing information on the Internet, with some exercising as many rent seeking rights as they can acquire. Who is pushing for this new "webcasting" middleman right? It is not the vast majority of bloggers, web page owners and others who are creating and distributing content. It is a tiny handful of big corporate players, including most notably US companies like Yahoo, News Corp (owner of MySpace), Microsoft, Time-Warner/AOL, AT&T, and a handful of large European media companies, including it seems, the BBC. Yahoo and others see themselves as aggregators and distributors of a wide varieties of audio visual works created by others, including music performances and films from all over the world. Under the most aggressive proposals debated this week, the Webcasting right will make Yahoo a part owner in everything they "webcast," and potentially give them the right to claim things like fees from cyber-cafes, community Wifi networks, schools and educational institutions, even when works are in the public domain or are freely licensed under creative commons type licenses, as well as a number of other situations. This comes at the expense of both the copyright owners and consumers. The Broadcast/webcast right, if defined too broadly, as some here want, also allows the broadcaster/webcasters to compete against the copyright owners in downstream commercialization of works, which is another reason why it makes copyright owners unhappy. The US and the EU are split on who should be the beneficiaries of this new right. The EU, lead by copyright chief Tilman Lueder, who formerly worked on competition issues, wants to restrict this new webcasting right to the incumbent broadcasting organizations, like BBC, so that only they would be able to claim the layer of rights, and not new competitors, even though they are both operating on the Internet. The US, led by Library of Congress lawyer Jule Sigall, wants to extend this new right to companies like Yahoo, News Corporation, Microsoft, Time-Warner or AT&T, but not to "bloggers or people who just maintain web pages." Right now the treaty definitions extend to pretty much any legal entity that creates a web page. During discussions with the US delegation, I actually created a webcasting site webcastingexample.blogspot.com, to show how trivial it was to get the 50 years of exclusive rights over copies of Congressional testimonies involving Avian Flu. About eighty-percent of the push for this is coming from the United States, about 19 percent from the European Union, and about 1 percent from other countries. No one who is pushing these treaties can explain why anyone who would get the right actually needs it in the first place, and there is no assessment of how this will impact copyright owners, consumers or creative communities and innovative businesses. WHERE DID THIS COME FROM? The original basis for this right is a 45 year-old treaty called the Rome Convention on the protection of performers, producers of phonograms and broadcasting organizations. The Rome Convention is now signed by 83 countries, but not by more than 100 other countries, including the United States. Every country, including the United States, gives some types of rights to performers (actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works) or producers of sound recordings, but the US and many other countries did not create a special right for broadcasters. The Rome Broadcasting Right is considered the weakest and most controversial component of the Rome Convention. Broadcasters typically rely upon free public spectrum, are hugely profitable, and do not need any additional incentives to broadcast. As Jamie Boyle has pointed out, the US never accepted this right, and we have a huge and highly profitable broadcast sector. (Dito for the cable TV industry). Basically, the Rome Broadcaster right is a 45 year old mistake. But like many other intellectual property treaties, it is extremely difficult to roll back unnecessary or restrictive IP rights. The US based National Association of Broadcasters (NAB) lead by lobbyist Ben Ivins, had pushed for years for WIPO to "update" the 1961 Rome Convention to expand the Broadcaster rights, extend the term (from 20 to 50 years), and add a number of other things. Even though NAB is pushing a European style approach, the USPTO and US Library of Congress has strongly backed a new treaty, extending European legal norms. Because broadcasters worldwide play an important role in shaping public views on politicians, they have extraordinary political power. Yahoo, now led by Terry Stempel, a former Hollywood executive, pushed to include Webcasters in the treaty, with full parity rights of the Broadcasters through the trade association DiMA and a number of private lobbyists. Seth Greenstein, a DC-based lobbyist, said he wrote the key sections of the current treaty that extended the Rome rights to webcasting organizations. Lobbyist Jonathan Band has been downplaying the importance of the treaty to the technology and library communities, despite its close parallels to a new intellectual property right for databases, which he opposes on behalf of other clients. DEBATE OVER SCOPE OF RIGHTS There is a deeply divided debate at WIPO over the scope of rights associated with the Broadcaster or Webcasting organizations. The European Union and some other countries are pushing very strong ROME+ rights in the treaty. A growing fraction on the other side, are pushing for a very thin layer of protection that is really only useful in protecting against piracy of a broadcast/webcast, but does not create an ownership right in the work. At this meeting Jule Sigal of the US Library of Congress has moved toward the signal protection only approach, supported by most NGOs, copyright owners and many developing countries. This was a long overdue and welcome development that has enraged the NAB. It is uncertain how this debate will play out, given the strong position of the European Union to promote its much different approach, and the very difficult problem of lower global treaty norms for intellectual property protection. (See memo below). LITTLE VIABILITY IN US If you don't know about the Treaty, it is because there has not been a single story about it in the New York Times or Wall Street Journal, and I think only two stories in the Washington Post, the most recent of which ran last year, and one in the New York Herald Tribune, which few people in the United States read. The computer trade journals have written very little about it either. The USPTO and Library of Congress have rejected numerous requests to issue formal requests for comment the treaty, and have scheduled no public meetings on the treaty. The US Congress has not held any hearings on the treaty. When the National Academies held a recent 5- hour public event about the meeting, not a single member of the US negotiating team attended. Ironically, it was a webcast of the National Academies event that has created more resistance. Key Intel officials listened to the National Academies event, and decided to oppose it. This has been a wake-up call for many in the technology community. Some big firms are siding with Intel, that the whole treaty poses a number of problems and should be opposed. Others, like AT&T, are trying to ensure they get the new webcasting rights. We have told technology companies, including Yahoo, Myspace, AT&T, Google, and others, that it is short sighted to see this new right as something that will only benefit them as publishers. There is enormous value in sites like Yahoo, Google, Myspace, Blogspot and millions of other large and small web pages, blogs etc, which flourishes because of the relative freedom that exists on the Internet. New regulations, restrictions and costs of sharing of information will shrink this value. In the developing countries, there is strong opposition to the expansion of the Rome broadcaster right to the Internet. They correctly see this as something that will increase transaction costs and prices, harm access to knowledge, and undermine the rights of their own copyright owners in the works distributed over the Internet. A larger and growing number of non-profit groups like CPTech, EFF, Public Knowledge, Consumers International, Consumers Union, (non-US) library groups (like IFLA, eIFL), IP-Justice, TWN, the Open Knowledge Foundation, Union the for Public Domain, and other "A2K" groups are playing a very important role in opposing the treaty. With the exceptions of James Boyle at Duke and Jennifer Urban at USC, US academics have not expressed interest in the treaty so far.... we are hoping that will change. -----Original Message----- From: James Love To: Lee Knife (DIMA), Bradley Silver (TimeWarner), Sarah Deutsch (Verizon), Fritz Attaway (MPAA); Ben Ivins (NAB), Biddle, Brad (Intel); David Fares (NewsCorp), Gwen Hinze (EFF), Jason Pielemeier (Yale ISP), J Mago (NAB), Kevin Rupy (USTelecom), Marily Cade (AT&T), Manon Ress (CPTech), Matt Schruers (CCIA), Peha (IP Justice), Thiru (CPTech), Winston Tabb (IFLA), Sent: Tue May 02, 2006 Subject: Inclusion of webcasting or other services in Treaty I think should offer some comments on the CPTech position on the inclusion of webcasting or other Internet services in the Treaty. 1. If the treaty was only about some theft of service, and did not involve an intellectual property right for transmitting/disseminating/ publishing information, then we would not care much what services are included. But of course, the treaty does contain IP rights, and so we do care, a lot. So do a lot of others, including copyright owners and developing country delegates. 2. There is very little chance that this treaty will be adopted without Rome type rights, or even Rome+ rights, for the following reasons. First, 83 countries have signed the Rome, and many already have in domestic law Rome+ rights, including most countries in Europe, and it would be hard for many of these countries to support something that lowers the global norms on rights substantially. Second, the TRIPS already has some IP protection for broadcasters, particularly for those who use the related rights approach, and you won't change this. Third, NAB and other broadcasters organizations would oppose a treaty that does not have Rome+ rights, since it would make them worse off than the Rome, which they already have. 3. NAB wants Rome+. DIMA want parity with whatever broadcasters get. That leads to an import of Rome type rights into the Internet. If you say you like parity for the Internet, what you are saying in practical terms is that the Internet should have Rome type rights. We are very opposed to this, and for that reason, we are willing to say that parity is a bad idea, and will harm the Internet, and harm copyright owners. I really don't think it is even good for DIMA members, but that's a different issue. 4. In terms of efforts by some to actually expand the definitions of webcating to include more and more services on the Internet, it just makes the whole treaty even worse for those who hate the Rome approach, and it isn't just me you have to consider. Anyone listening to the debate should appreciate how much resistance there is to ANY inclusion of webcasting, let along the even broader definitions that pick up other services. 5. Our position is that the US delegate should defend US norms, which include no protection for webcasting, and no ROME or ROME+ rights. (why not address webcasting issue in USA before demanding a global treaty). One way to do this is to kill this treaty, which the US could easily do, since it is the main demander for it. The SCCR could work on other issues..... like a global norm for minimum limitations and exceptions for persons living with disabilities, libraries, distance education etc, which has already been proposed by Chile, and which would be welcomed by developing countries, and would be consistent with US copyright traditions. It could revisit the webcasting issue later after US law is more mature on this issue, and more is known about the technology. 6. Another possible thing to consider is something that would solve the very real problems facing non-USA sports broadcasters. This we could support, as we have indicated many times. 7. All the talk about piracy in relationship to broadcasting has been mostly for public relations. Piracy is already illegal under lots of different laws, including copyright law. WIPO could work on some best practices models for countries to plug in some of the small gaps in some broadcasting regimes, without even worrying about a treaty on this. And if piracy was a big problem, then NAB and other broadcasters could have a signal theft only treaty in 5 minutes, but they don't really want one. 8. A final note about the Internet. The Internet probably never would have existed had it been regulated like broadcasters, because lobbyists would have fought to control every new idea and technology. I don't think the lack of regulatory parity for the Internet was a bad thing. Jamie --------------------------------- James Love, CPTech / www.cptech.org / mailto:james.love at cptech.org / tel. +1.202.332.2670 / mobile +1.202.361.3040 "If everyone thinks the same: No one thinks." Bill Walton _______________________________________________ Random-bits mailing list Random-bits at lists.essential.org http://lists.essential.org/mailman/listinfo/random-bits From venkyh at gmail.com Fri May 5 10:12:21 2006 From: venkyh at gmail.com (Venkatesh Hariharan) Date: Fri, 5 May 2006 10:12:21 +0530 Subject: [Commons-Law] The U.S. Patent Game: How to Change It Message-ID: <3f400ec0605042142r4ace60ddr983536f9cb3e3930@mail.gmail.com> http://hbswk.hbs.edu/item.jhtml?id=4548&t=finance > Innovators and society are paying too high a price in the current patent > system, says a new book by Adam B. Jaffe and Harvard Business School's Josh > Lerner. A book excerpt and Q&A with Lerner. > > by Ann Cullen > > When lawyers fare better than inventors and entrepreneurs where U.S. > patents are concerned, you know injustice is being done. The current system > makes patents easier to acquire, sure, but renders them less prestigious as > well, and less likely to attract valuable financing. In addition, older > firms that are feeling threatened have learned how to bully younger > upstarts by wielding licenses and patent law like a weapon. It certainly > doesn't encourage the spirit of innovation, does it? From seth.johnson at RealMeasures.dyndns.org Sun May 7 22:27:19 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Sun, 07 May 2006 12:57:19 -0400 Subject: [Commons-Law] Berners-Lee: Neutrality of the Net Message-ID: <445E26EF.75412352@RealMeasures.dyndns.org> > http://dig.csail.mit.edu/breadcrumbs/node/132 Neutrality of the Net Submitted by timbl on Tue, 2006-05-02 15:22. This is an international issue. In some countries it is addressed better than others. (In France, for example, I understand that the layers are separated, and my colleague in Paris attributes getting 24Mb/s net, a phone with free international dialing and digital TV for 30euros/month to the resulting competition.) In the US, there have been threats to the concept, and a wide discussion about what to do. That is why, though I have written and spoken on this many times, I blog about it now. Twenty-seven years ago, the inventors of the Internet[1] designed an architecture[2] which was simple and general. Any computer could send a packet to any other computer. The network did not look inside packets. It is the cleanness of that design, and the strict independence of the layers, which allowed the Internet to grow and be useful. It allowed the hardware and transmission technology supporting the Internet to evolve through a thousandfold increase in speed, yet still run the same applications. It allowed new Internet applications to be introduced and to evolve independently. When, seventeen years ago, I designed the Web, I did not have to ask anyone's permission. [3]. The new application rolled out over the existing Internet without modifying it. I tried then, and many people still work very hard still, to make the Web technology, in turn, a universal, neutral, platform. It must not discriminate against particular hardware, software, underlying network, language, culture, disability, or against particular types of data. Anyone can build a new application on the Web, without asking me, or Vint Cerf, or their ISP, or their cable company, or their operating system provider, or their government, or their hardware vendor. It is of the utmost importance that, if I connect to the Internet, and you connect to the Internet, that we can then run any Internet application we want, without discrimination as to who we are or what we are doing. We pay for connection to the Net as though it were a cloud which magically delivers our packets. We may pay for a higher or a lower quality of service. We may pay for a service which has the characteristics of being good for video, or quality audio. But we each pay to connect to the Net, but no one can pay for exclusive access to me. When I was a child, I was impressed by the fact that the installation fee for a telephone was everywhere the same in the UK, whether you lived in a city or on a mountain, just as the same stamp would get a letter to either place. To actually design legislation which allows creative interconnections between different service providers, but ensures neutrality of the Net as a whole may be a difficult task. It is a very important one. The US should do it now, and, if it turns out to be the only way, be as draconian as to require financial isolation between IP providers and businesses in other layers. The Internet is increasingly becoming the dominant medium binding us. The neutral communications medium is essential to our society. It is the basis of a fair competitive market economy. It is the basis of democracy, by which a community should decide what to do. It is the basis of science, by which humankind should decide what is true. Let us protect the neutrality of the net. 1. Vint Cerf, Bob Kahn and colleagues 2. TCP and IP 3. I did have to ask for port 80 for HTTP From skjha at iitb.ac.in Mon May 8 18:50:52 2006 From: skjha at iitb.ac.in (Shishir K Jha) Date: Mon, 8 May 2006 18:50:52 +0530 (IST) Subject: [Commons-Law] New RIAA/MPAA "Customary Historic Use" Plan Message-ID: <2494.10.127.133.110.1147094452.squirrel@gpo.iitb.ac.in> I am not sure if it has been posted before. Shishir K. Jha -------------------------------------------------------- All, "Ars Technica is reporting that the EFF has dug up plans by the RIAA/MPAA to stifle the consumer electronics market by replacing it's "fair use" policy with something called "Customary Historic Use". This new policy would effectively keep anyone from inventing any new type of media device without the RIAA/MPAA's say-so." and http://arstechnica.com/news.ars/post/20060121-6025.html Regards, -- Jeffrey A. Williams From seth.johnson at RealMeasures.dyndns.org Thu May 4 15:36:22 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Thu, 04 May 2006 06:06:22 -0400 Subject: [Commons-Law] Strong Copyright + "DRM" + Weak Net Neutrality = Digital Dystopia? Message-ID: <4459D21E.F85B240A@RealMeasures.dyndns.org> (PDF text attached. -- Seth) -------- Original Message -------- Subject: "Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia?"Preprint Date: Wed, 03 May 2006 13:46:38 -0500 From: "Charles W. Bailey, Jr." To: ACRL Scholarly Communication T.F. A preprint of my "Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia?" paper is now available. http://www.digital-scholarship.com/cwb/DigitalDystopia.pdf It will appear in Information Technology and Libraries 25, no. 3 (2006). This quote from the paper's conclusion sums it up: What this paper has said is simply this: three issues--a dramatic expansion of the scope, duration, and punitive nature of copyright laws; the ability of DRM to lock-down content in an unprecedented fashion; and the erosion of Net neutrality--bear careful scrutiny by those who believe that the Internet has fostered (and will continue to foster) a digital revolution that has resulted in an extraordinary explosion of innovation, creativity, and information dissemination. These issues may well determine whether the much-toted "information superhighway" lives up to its promise or simply becomes the "information toll road" of the future, ironically resembling the pre-Internet online services of the past. For those who want a longer preview of the paper, here's the introduction: Blogs. Digital photo and video sharing. Podcasts. Rip/Mix/Burn. Tagging. Vlogs. Wikis. These buzzwords point to a fundamental social change fueled by cheap PCs and servers, the Internet and its local wired/wireless feeder networks, and powerful, low-cost software: citizens have morphed from passive media consumers to digital media producers and publishers. Libraries and scholars have their own set of buzz words: digital libraries, digital presses, e-prints, institutional repositories, and open access journals to name a few. They connote the same kind of change: a democratization of publishing and media production using digital technology. It appears that we are on the brink of an exciting new era of Internet innovation: a kind of digital utopia. Dr. Gary Flake of Microsoft has provided one striking vision of what could be (with a commercial twist) in a presentation entitled "How I Learned to Stop Worrying and Love the Imminent Internet Singularity," and there are many other visions of possible future Internet advances. When did this metamorphosis begin? It depends on who you ask. Let's say the late 1980's, when the Internet began to get serious traction and an early flowering of noncommercial digital publishing occurred. In the subsequent twenty-odd years, publishing and media production went from being highly centralized, capital-intensive analog activities with limited and well-defined distribution channels to being diffuse, relatively low-cost digital activities with the global Internet as their distribution medium. Not to say that print and conventional media are dead, of course, but it is clear that their era of dominance is waning. The future is digital. Nor is it to say that entertainment companies (e.g., film, music, radio, and television companies) and information companies (e.g., book, database, and serial publishers) have ceded the digital content battlefield to the upstarts. Quite the contrary. High-quality thousand-page-per-volume scientific journals and Hollywood blockbusters cannot be produced for pennies, even with digital wizardry. Information and entertainment companies still have an important role to play, and, even if they didn't, they hold the copyrights to a significant chunk of our cultural heritage. Entertainment and information companies have understood for some time that they must adopt to the digital environment or die, but this change has not always been easy, especially when it involves concocting and embracing new business models. Nonetheless, they intend to thrive and prosper--and to do whatever it takes to succeed. As they should, since they have an obligation to their shareholders to do so. The thing about the future is that it is rooted in the past. Culture, even digital culture, builds on what has gone before. Unconstrained access to past works helps determine the richness of future works. Inversely, when past works are inaccessible except to a privileged minority, it impoverishes future works. This brings us to a second trend that stands in opposition to the first. Put simply, it is the view that intellectual works are "property"; that this property should be protected with the full force of civil and criminal law; that creators have perpetual, transferable property rights; and that contracts, rather than copyright law, should govern the use of intellectual works. A third trend is also at play: the growing use of Digital Rights Management (DRM) technologies. When intellectual works were in paper form (or other tangible forms), they could only be controlled at the object-ownership or object-access levels (a library controlling the circulation of a copy of a book is an example of the second case). Physical possession of a work, such as a book, meant that the user had full use of it (e.g., the user could read the entire book and photocopy pages from it). When works are in digital form and they are protected by some types of DRM, this may no longer true. For example, a user may only be able to view a single chapter from a DRM-protected e-book and may not be able to print it. The fourth and final trend deals with how the Internet functions at its most fundamental level. The Internet was designed to be content, application, and hardware "neutral." As long as certain standards were met, the network did not discriminate. One type of content was not given preferential delivery speed over another. One type of content was not charged for delivery while another wasn't. One type of content was not blocked (at least by the network) while another wasn't. In recent years, "network neutrality" has come under attack. The collision of these trends has begun in courts, legislatures, and the marketplace. It is far from over. As we shall see, it's outcome will determine what the future of digital culture looks like. -- Best Regards, Charles Charles W. Bailey, Jr., Assistant Dean for Digital Library Planning and Development, University of Houston Libraries E-Mail: cbailey at digital-scholarship.com Publications: http://www.digital-scholarship.com/ (Provides access to DigitalKoans, Open Access Bibliography, Open Access Webliography, Scholarly Electronic Publishing Bibliography, Scholarly Electronic Publishing Weblog, and others) -------------- next part -------------- Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia? By Charles W. Bailey, Jr. Preprint 5/2/06 Introduction Blogs. Digital photo and video sharing. Podcasts. Rip/Mix/Burn. Tagging. Vlogs. Wikis. These buzzwords point to a fundamental social change fueled by cheap PCs and servers, the Internet and its local wired/wireless feeder networks, and powerful, low-cost software: citizens have morphed from passive media consumers to digital media producers and publishers. Libraries and scholars have their own set of buzz words: digital libraries, digital presses, e-prints, institutional repositories, and open access journals to name a few. They connote the same kind of change: a democratization of publishing and media production using digital technology. It appears that we are on the brink of an exciting new era of Internet innovation: a kind of digital utopia. Dr. Gary Flake of Microsoft has provided one striking vision of what could be (with a commercial twist) in a presentation entitled "How I Learned to Stop Worrying and Love the Imminent Internet Singularity,"1 and there are many other visions of possible future Internet advances. When did this metamorphosis begin? It depends on who you ask. Let's say the late 1980's, when the Internet began to get serious traction and an early flowering of noncommercial digital publishing occurred. In the subsequent twenty-odd years, publishing and media production went from being highly centralized, capital-intensive analog activities with limited and well-defined distribution channels to being diffuse, relatively low-cost digital activities with the global Internet as their distribution medium. Not to say that print and conventional media are dead, of course, but it is clear that their era of dominance is waning. The future is digital. Nor is it to say that entertainment companies (e.g., film, music, radio, and television companies) and information companies (e.g., book, database, and serial publishers) have ceded the digital content battlefield to the upstarts. Quite the contrary. High-quality thousand-page-per-volume scientific journals and Hollywood blockbusters cannot be produced for pennies, even with digital wizardry. Information and entertainment companies still have an important role to play, and, even if they didn't, they hold the copyrights to a significant chunk of our cultural heritage. Entertainment and information companies have understood for some time that they must adopt to the digital environment or die, but this change has not always been easy, especially when it involves concocting and embracing new business models. Nonetheless, they intend to thrive and prosper.and to do whatever it takes to succeed. As they should, since they have an obligation to their shareholders to do so. The thing about the future is that it is rooted in the past. Culture, even digital culture, builds on what has gone before. Unconstrained access to past works helps determine the richness of future works. Inversely, when past works are inaccessible except to a privileged minority, it impoverishes future works. This brings us to a second trend that stands in opposition to the first. Put simply, it is the view that intellectual works are "property"; that this property should be protected with the full force of civil and criminal law; that creators have perpetual, transferable property rights; and that contracts, rather than copyright law, should govern the use of intellectual works. A third trend is also at play: the growing use of Digital Rights Management (DRM) technologies. When intellectual works were in paper form (or other tangible forms), they could only be controlled at the object-ownership or objectaccess levels (a library controlling the circulation of a copy of a book is an example of the second case). Physical possession of a work, such as a book, meant that the user had full use of it (e.g., the user could read the entire book and photocopy pages from it). When works are in digital form and they are protected by some types of DRM, this may no longer true. For example, a user may only be able to view a single chapter from a DRM-protected e-book and may not be able to print it. The fourth and final trend deals with how the Internet functions at its most fundamental level. The Internet was designed to be content, application, and hardware "neutral." As long as certain standards were met, the network did not discriminate. One type of content was not given preferential delivery speed over another. One type of content was not charged for delivery while another wasn't. One type of content was not blocked (at least by the network) while another wasn't. In recent years, "network neutrality" has come under attack. The collision of these trends has begun in courts, legislatures, and the marketplace. It is far from over. As we shall see, it's outcome will determine what the future of digital culture looks like. Stronger Copyright: 1790 vs. 2006 Copyright law is a complex topic. It's not my intention to provide a full copyright primer here. (Indeed, I will assume that the reader understands some copyright basics, such as the notion that facts and ideas are not covered by copyright.) Rather, my aim is to highlight some key factors about how and why U.S. copyright law has evolved and how it relates to the digital problem at hand. Three authors (Lawrence Lessig, Professor of Law at the Stanford Law School; Jessica Litman, Professor of Law at the Wayne State University Law School; and Siva Vaidhyanathan, Assistant Professor in the Department of Culture and Communication at New York University) have done brilliant and extensive work in this area, and the following synopsis is primarily based on their contributions. I heartily recommend that you read the cited works in full. 1. The purpose of copyright: Let's start with the basis of U.S. copyright law, the Constitution's "Progress Clause": "Congress has the power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."2 Copyright was a bargain: society would grant creators a time-limited ability to control and profit from their works before they fell into the public domain (where works are unprotected) because doing so resulted in "Progress of Science and useful Arts" (a social good). Regarding the Progress Clause, Lessig notes: It does not say Congress has the power to grant "creative property rights." It says that Congress has the power to promote progress. The grant of power is its purpose, and its purpose is a public one, not the purpose of enriching publishers, nor even primarily the purpose of rewarding authors.3 However, entertainment and information companies can have a far different view, as illustrated by this quote from Jack Valenti, former president of the Motion Picture Association of America: "Creative property owners must be accorded the same rights and protections resident in all other property owners in the nation."4 2. Types of works covered: When the Copyright Act of 1790 was enacted, it protected published books, maps, and charts written by living U.S. authors as well as unpublished manuscripts by them.5 The Act gave the author the exclusive right to "print, reprint, publish, or vend" these works. Now, copyright protects a wide range of published and unpublished "original works of authorship" that are "fixed in a tangible medium of expression" without regard for "the nationality or domicile of the author," including "1. literary works; 2. musical works, including any accompanying words; 3. dramatic works, including any accompanying music; 4. pantomimes and choreographic works; 5. pictorial, graphic, and sculptural works; 6. motion pictures and other audiovisual works; 7. sound recordings; 8. architectural works."6 3. Rights: In contrast to the limited print publishing rights inherent in the Copyright Act of 1790, current law grants copyright owners the following rights (especially notable is the addition of control over derivative works, such as a play based on a novel or a translation): • To reproduce the work in copies or phonorecords; • To prepare derivative works based upon the work; • To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending; • To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works; • To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and • In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.7 4. Duration: The Copyright Act of 1790 granted authors a term of 14 years, with one renewal if the author was still living (28 years total).8 Now, the situation is much more complex, and, rather than trying to review the details, I'll provide the following example. For a personal author who produced a work on or after 1/1/78, it is covered for the life of the author plus 70 years.9 So, assuming a male author lives on average 74 years, 144 years, which is approximately 116 years longer than in 1790. 5. Registration: Registration was required by the Copyright Act of 1790, but very few eligible works were registered from 1790-1800, which enriched the public domain.10 Now, registration is not required, and no work enriches the public domain until its term is over, even if the author (or the author's descendants) have no interest in the work being under copyright or it is impossible to locate the copyright holder to gain permission to use his or her works (creating so-called "orphan works"). 6. Drafting of legislation: By 1901, copyright law had become fairly esoteric and complex, and drafting new copyright legislation had become increasingly difficult. Consequently, Congress adopted a new strategy: let those whose commercial interests were directly affected by copyright law deliberate and negotiate with each other about copyright law changes, and use the results of this process as the basis of new legislation.11 Over time, this increasingly became a dialog among representatives of entertainment, high-tech, information, and telecommunications companies; other parties, such as library associations; and rights holder groups (e.g., ASCAP). Since these parties often had competing interests, the negotiations were frequently contentious and lengthy, and the resulting laws created a kind of crazy quit of specific exceptions for the deals made during these sessions to the ever expanding control over intellectual works that copyright reform generally engendered. Since the public was not at the table, its highly diverse interests were not directly represented, and, since stakeholder industries lobby Congress and the public doesn't, the public's interests were often not well served. (There were some efforts by special interest groups to represent the public on narrowly focused issues.) 7. Frequency of copyright term legislation: With remarkable constraint, Congress enacted one copyright bill that extended the copyright term in its first hundred years and one in the next 50; however, starting in 1962, it passed 11 bills in the next 40 years.12 Famously, Jack Valenti once proposed that copyright "last forever less one day."13 By continually extending copyright terms in a serial fashion, Congress may grant him his wish. 8. Licenses: In 1790, copyrighted works were sold and owned. Today, many digital works are licensed. Licenses usually fall under state contract law rather than federal copyright law.14 Licensed works are not owned, and the first sale doctrine is not in effect.15 While copyright is the legal foundation of licenses (i.e., works can be licensed because licensors own the copyright to those works), licenses are contracts, and contract provisions trump user-favorable copyright provisions, such as fair use, if the licensor chooses to negate them in a license. 9. Criminal and civil penalties: In 1790, there were civil penalties for copyright infringement (e.g., statutory fines of "50 cents per sheet found in the infringer's possession").16 Now, there are criminal copyright penalties, including felony violations that can result in a maximum of five years of imprisonment and fines as high as $250,000 for first-time offenders; civil statutory fines that can range as high as $150,000 per infringement (if infringement is "willful"), and other penalties.17 Once the copyright implications of digital media and the Internet sunk in, entertainment and information companies were deeply concerned: digital technologies made creating perfect copies effortless, and the Internet provided a free (or low-cost) way to distribute content globally. Congress, primarily spurred on by entertainment companies, passed several laws aimed at curtailing perceived digital "theft" through criminal penalties. Under the 1997 No Electronic Theft (NET) Act, copyright infringers face "up to 3 years in prison and/or $250,000 fines," even for noncommercial infringement.18 Under the 1998 Digital Millennium Copyright Act (DMCA), those who defeat technological mechanisms that control access to copyrighted works (a process called "circumvention") face a maximum of five years in prison and $500,000 in fines.19 10. Effect of copyright on average citizens: In 1790, copyright law had little effect on citizens. The average person was not an author or publisher, private use of copyrighted materials was basically unregulated, the public domain was healthy, and many types of works were not covered by copyright at all. In 2006, virtually every type of work imaginable is under automatic copyright protection for extended periods of time, private use of digital works is increasingly visible and of concern to copyright holders, the public domain is endangered, and ordinary citizens are being prosecuted as "pirates" under draconian statutory and criminal penalties. Regarding this development, Lessig says: For the first time in our tradition, the ordinary ways in which individuals create and share culture fall within the reach of the regulation of the law, which has expanded to draw within its control a vast amount of culture and creativity that it never reached before. The technology that preserved the balance of our history.between uses of our culture that were free and uses of our culture that were only upon permission.has been undone. The consequence is that we are less and less a free culture, more and more a permission culture.20 How has copyright changed since the days of the founding fathers? As we have seen, there has been a shift in copyright law (and social perceptions of it) from promoting progress to protecting intellectual property owners "rights," from covering limited types of works to covering virtually all types of works, from granting only basic reproduction and distribution rights to granting a much wider range of rights, from offering a relatively short duration of protection to offering a relatively long (potentially perpetual) one, from requiring registration to providing automatic copyright, from drafting laws in Congress to drafting laws in work groups of interested parties dominated by commercial representatives, from making infrequent extensions of copyright duration to making frequent ones, from selling works to licensing them, from relatively modest civil penalties to severe civil and criminal penalties, and from ignoring ordinary citizens typical use of copyrighted works to branding them as "pirates" and prosecuting them with lawsuits. (Regarding lawsuits filed by the Recording Industry Association of America against four students, Lessig notes: "If you added up the claims, these four lawsuits were asking courts in the United States to award the plaintiffs close to $100 billion.six times the total profit of the film industry in 2001."21) Complicating this situation further is intense consolidation and increased vertical integration in the entertainment, information, telecommunications, and other high-tech industries involved in the Internet. 22 This vertical integration has implications for what can be published and the free flow of information. For example, A company that publishes books and magazines, produces films and television programs, provides Internet access and digital content, and provides cable television services (including broadband Internet access) has different corporate interests than a company that performs a single function, and these interrelated interests may affect not only what information is produced and whether competing information and services are freely available through controlled digital distribution channels, but corporate perceptions of copyright issues as well. One of the ironies of the current copyright situation is this: if creative works are by nature "property" and stealing property is (and has always been) wrong, then some of the very industries that are demanding that this truth be embodied in copyright law have, in the past, been "pirates" themselves, even though certain acts of "piracy" may have been legal (or appeared to be legal) under then existing copyright laws.23 Lessig states: If "piracy" means using the creative property of others without their permission.if "if value, then right" is true.then the history of the content industry is a history of piracy. Every important sector of "big media" today.film, records, radio, and cable TV.was born of a kind of piracy so defined. The consistent story is how last generation’s pirates join this generation’s country club.until now.24 Let's take a simple case: cable television. Early cable television companies used broadcast television programs without compensating copyright owners, who branded their actions as "piracy" and filed lawsuits. After two defeats in the Supreme Court, broadcast television companies won a victory (of sorts) in Congress, which took nearly 30 years to resolve the matter: cable television companies would pay, but not what broadcast television companies wanted, rather they would pay fees determined by law.25 Of course, this view of history ("big media" companies as "pirates" in their infancy) is open to dispute. For the moment, let's assume that it is true. Put more gently, some of most important media companies of modern times flourished because of relatively lax copyright control, a relatively rich public domain, and, in some cases, a societal boon that allowed them to pay statutory license fees, which are compulsory for copyright owners, instead of potentially paying much higher fees set by copyright owners or being denied use at all. Today, the very things that fostered media companies growth are under attack by them. The success of those attacks is diminishing the ability of new digital content and service companies to flourish and, in the long run, may diminish even "big media's" ability to continue to thrive as a "permission culture" replaces a permissive culture. Several prominent copyright scholars have suggested copyright reforms to help restore balance to the copyright system. James Boyle, Professor of Law at the Duke University Law School, recommends a twenty-year copyright term with "a broadly defined fair use protection for journalistic, teaching, and parodic uses.provided that those uses were not judged to be in bad faith by a jury applying the 'beyond a reasonable doubt' standard."26 William W. Fisher III, Hale and Dorr Professor of Intellectual Property Law at Harvard University Law School, suggests that "we replace major portions of the copyright and encryption-reinforcement models with. . . a governmentally administered reward system" that would put in place new taxes and compensate registered copyright owners of music or films with "a share of the tax revenues proportional to the relative popularity of his or her creation" and would "eliminate most of the current prohibitions on unauthorized reproduction, distribution, adaptation, and performance of audio and video recordings."27 Lawrence Lessig recommends that copyright law be guided the following general principles: (1) short copyright terms; (2) a simple binary system of protected/not protected works without complex exceptions; (3) mandatory renewal, and (4) a "prospective" orientation that forbids retrospective term extensions. 28 (Previously, Lessig had proposed a 75-year term contingent on five-year renewals). He suggests reinstating the copyright registration requirement using a flexible system similar to that used for domain name registrations. He favors works having copyright marks, and, if they are not present, he would permit their free use until copyright owners voice their opposition to this use (uses of the work made prior to this point would still be permitted). Jessica Litman wants a copyright law "that is short, simple, and fair" in which we "stop defining copyright in terms of reproduction" and recast copyright as "an exclusive right of commercial exploitation."29 Litman would eliminate industryspecific copyright law exceptions, but grant the public "a right to engage in copying or other uses incidental to a licensed or legally privileged use"; the "right to cite" (even infringing works); and "an affirmative right to gain access to, extract, use, and reuse the ideas, facts, information, and other public domain material embodied in protected works" (including a restricted circumvention right).30 Things change in over 200 plus years, and the law must change with them. Since the late 19th century, copyright law has been especially impacted by new technologies. The question is this: has copyright law struck the right balance between encouraging progress through granting creators specific rights and fostering a strong public domain that also nourishes creative endeavor? If that balance has been lost, how can it be restored? Or, is society simply no longer striving to maintain that balance because intellectual works are indeed property, property must be protected for commerce to prosper, and the concept of balance is outmoded and it no longer reflects societal values? DRM: Locked-Up Content and Fine-Grained Control Noted attorney Michael Godwin defines Digital Rights Management (DRM) as "a collective name for technologies that prevent you from using a copyrighted digital work beyond the degree to which the copyright owner (or a publisher who may not actually hold a copyright) wishes to allow you to use it."31 Like copyright, DRM systems are complex, with many variations. There are two key technologies: (1) Digital marking (i.e., digital fingerprints that uniquely identify a work based on its characteristics, simple labels that attach rights information to content, and watermarks that typically hide information that can used to identify a work), and (2) encryption (i.e., scrambled digital content that requires a digital key to decipher it).32 Specialized hardware can be used to restrict access as well, often in conjunction with digital marking and encryption. My intent is not to provide a technical tutorial, but to overview the basic DRM concept and to discuss its implications. What is of interest here is not how system ABC works in contrast to system XYZ, but what DRM allows copyright owners to do and the issues related to DRM. To do so, let's use an analogy, understanding that real DRM systems can work in other ways as well (e.g., digital watermarks can be used to track illegal use of images on the Internet without those images being otherwise protected). For the moment, let's imagine that the content a user wishes to access is in an unbreakable, encrypted digital safe. The user cannot see inside the safe. By entering the correct digital combination, certain content becomes visible (or audible or both) in the safe. That content can then be utilized in specific ways (and only those ways), including, if permitted, leaving the safe. If a public domain work is put in the safe, access to it is restricted regardless of its copyright status. Bill Rosenblatt, Bill Trippe, and Stephen Mooney provide a very useful conceptual model of DRM rights in their landmark DRM book, which I will summarize here.33 There are three types of content rights: (1) render rights, (2) transport rights, and (3) derivative works rights. Render rights allow authorized users to view, play, and/or print protected content. Transport rights allow authorized users to copy, move, and/or loan content (the user retains the content if it is copied and gets it back when a loan is over, but does not keep a copy if it is moved). Derivative works rights allow authorized users to extract pieces of content, edit the content in place, and embed content by extracting some of it and using it in other works. Each one of these individual rights has three attributes: (1) consideration, (2) extents, and (3) types of users. Access to content is provided for something of value to the publisher (e.g., money or personal information): the consideration. Content can then be used to some extent (e.g., for a certain amount of time or a certain number of times). What rights and attributes users have is determined by their user types. For example, an academic user, in consideration of a specified license payment by his or her library, can view a DRM-protected scholarly article.but not copy, move, loan, extract, edit, or embed it.for a week, after which it is inaccessible. We can extend this hypothetical example by imagining that the library could pay higher license fees to gain more rights to the journal in question, and the library (or the user) could dynamically purchase additional article-specific rights enhancements as needed though micropayments. This example is extreme; however, it illustrates the fine-grained, high-level of control that publishers could potentially have over content by using DRM technology. Godwin suggests that DRM may inhibit a variety of legitimate uses of DRMprotected information, such as access to public domain works (or other works that would allow liberal use), preservation of works by libraries, creation of new derivative works, conduct of historical research, exercise of fair use rights, and instructional use.34 The ability of blind (or otherwise disabled) users to employ assistive technologies may also be prevented by DRM technology.35 DRM also raises a variety of privacy concerns.36 Fair use is an especially thorny problem. Rosenblatt, Trippe, and Mooney state: Fair use is an "I'll know it when I see it" proposition, meaning that it can't be proscriptively defined. . . . Just as there is no such thing as a "black box" that determines whether broadcast material is or isn't indecent, there is no such thing as a "black box" that can determine whether a given use of content qualifies as fair use or not. Anything that can't be proscriptively defined can't be represented in a computer system.37 No need to panic about scholarly journals, yet. Your scholarly journal publisher or other third-party supplier is unlikely to present you with such detailed options tomorrow. But, you may already be licensing other digital content that is DRM-protected, such as digital music or e-books that require a hardware e-book reader. As the recent Sony BMG "rootkit" episode illustrated, creating effective, secure DRM systems can be challenging, even for large corporations.38 Again, the reasons for this are complex. In very simple terms, it boils down to this: assuming that the content can be protected up to the point it is placed in a DRM system, the DRM system has the best chance of working if all possible devices that can process its protected content either directly support its protection technology, recognize its restrictions and enforce them through another means, or refuse access.39 Anything less creates "holes" in the protective DRM shell, such as the well-known "analog hole" (e.g., when DRM-protected digital content is converted to analog form to be played, it can then be re-recorded using digital equipment without DRM protection).40 In other words, ideally, every server, network router, PC and PC component, operating system, and relevant electronic device (e.g., CD player, DVD player, audio recording device, and video recording device) would work with the DRM system as outlined previously or would not allow access to the content at all. Clearly, this ideal end-state for DRM may well never be realized, especially given the troublesome backward-compatibility equipment problem.41 However, this does not mean that the entertainment, information, and high-technology companies won't try to make whatever piecemeal progress that they can in this area.42 The Trusted Computing Group is an important multiple-industry security organization, whose standards work could have a strong impact on the future of DRM. Robert A. Gehring notes: But a DRM system is almost useless, that is from a content owner's perspective, until it is deployed broadly. Putting together cheap TC components with a market-dominating operating system "enriched" with DRM functionality is the most economic way to provide the majority of users with "copyright boxes."43 Seth Schoen argues computer owners should be empowered to override certain features of "trusted computing architecture" to address issues with "anticompetitive and anti-consumer behavior" and other problems.44 DRM could potentially be legislatively mandated. There is a closely related legal precedent, the Audio Home Recording Act, which requires that digital audiotape equipment include special hardware to prevent serial copying.45 There is currently a bill before Congress that would require use of a "broadcast flag" (a digital marker) for digital broadcast and satellite radio receivers.46 Last year, a similar FCC regulation for broadcast digital television was struck down by a federal appeals court, and, consequently, the current bill explicitly empowers the FCC to "enforce 'prohibitions against unauthorized copying and redistribution.'"47 Another bill would plug the analog-to-digital video "analog hole" by putting "strict legal controls on any video analog to digital (A/D) convertors."48 Whether these bills become law of not, efforts to mandate DRM are unlikely to end. The Digital Millennium Copyright Act strongly supports DRM by prohibiting both the circumvention of technological mechanisms that control access to copyrighted works (with some minor exceptions) and the "manufacture of any device, composition of any program, or offering of any service" to do so.49 What would the world be like if all newly published (or released) commercially created information was in digital form, protected by DRM? What would it be like if all old works in print and analog formats were only reissued in digital form, protected by DRM? What would it be like if all hardware that could process that digital information had to support the information's DRM scheme or block any access to it because this was mandated by law? What would it be like if all operating systems had direct or indirect built-in support for DRM? Would "Progress of Science and useful Arts" be promoted or squashed? Weaker Net Neutrality Lessig identifiers three important characteristics of the Internet that have fostered innovation: (1) edge architecture: software applications run on servers connected to the network, rather than on the network itself, which ensures that the network itself does not have to be modified for new or updated applications to run; (2) no application optimization: a relative simple, but effective, protocol is utilized (Internet Protocol) that is indifferent to what software applications run on top of it, again insulating the network from application changes; and (3) neutral platform: the network does not prefer certain data packets or deny certain packets access.50 Lessig's conceptual model is very useful when thinking about Net neutrality, a topic of growing concern. EDUCAUSE's definition of Net neutrality aptly captures these concerns: "Net neutrality" is the term used to describe the concept of keeping the Internet open to all lawful content, information, applications, and equipment. There is increasing concern that the owners of the local broadband connections (usually either the cable or telephone company) may block or discriminate against certain Internet users or applications in order to give an advantage to their own services. While the owners of the local network have a legitimate right to manage traffic on their network to prevent congestion, viruses, and so forth, network owners should not be able to block or degrade traffic based on the identity of the user or the type of application solely to favor their interests.51 For some time, there have been fears that Net neutrality was endangered as the Internet became increasingly commercialized, a greater percentage of home Internet users migrated to broadband connections not regulated by common carrier laws, and telecommunications mergers (and vertical integration) accelerated. Now, some of these fears appear to be being realized, albeit with resistance by the Internet community. For example, AOL has indicated that it will implement a two-tier e-mail system for companies, nonprofits, and others who send mass mailings: those who pay bypass spam filters, those who don't pay don't.52 Critics fear that under a twotier system free e-mail services will deteriorate. Facing fierce criticism from the DearAOL.com Coalition and many others, AOL has relented somewhat on the nonprofit issue by offering special treatment for "qualified" nonprofits. A second example is that an analysis of Verizon's FCC filings reveals that "more than 80% of Verizon's current capacity is earmarked for carrying its service, while all other traffic jostles in the remainder."53 Content-oriented Net companies are worried: Leading Net companies say that Verizon's actions could keep some rivals off the road. As consumers try to search Google, buy books on Amazon.com, or watch videos on Yahoo!, they'll all be trying to squeeze into the leftover lanes on Verizon's network. . . . "The Bells have designed a broadband system that squeezes out the public Internet in favor of services or content they want to provide," says Paul Misener, vicepresident for global policy at Amazon.com.54 A third example is a comment by William L. Smith, BellSouth 's chief technology officer, who "told reporters and analysts that an Internet service provider such as his firm should be able, for example, to charge Yahoo Inc. for the opportunity to have its search site load faster than that of Google Inc.," but qualified this assertion by indicating that "a pay-for-performance marketplace should be allowed to develop on top of a baseline service level that all content providers would enjoy."55 About four months later, AT&T announced that it would acquire BellSouth, after which it "will be the local carrier in 22 states covering more than half of the American population."56 Finally, in a white paper for Public Knowledge, John Windhausen, Jr. states: This concern is not just theoretical -- broadband network providers are taking advantage of their unregulated status. Cable operators have barred consumers from using their cable modems for virtual private networks and home networking and blocked streaming video applications. Telephone and wireless companies have blocked Internet telephone (VoIP -- Voice over the Internet Protocol) traffic outright in order to protect their own telephone service revenues.57 These and similar examples are harbingers of troubled days ahead for Net neutrality. The canary in the Net neutrality mine isn't dead yet, but it's getting very nervous. The bottom line? Noted open access advocate Peter Suber analyzes the situation as follows: But now cable and telecom companies want to discriminate, charge premium prices for premium service, and give second-rate service to everyone else. If we relax the principle of net neutrality, then ISPs could, if they wanted, limit the software and hardware you could connect to the net. They could charge you more if you send or receive more than a set number of emails. They could block emails containing certain keywords or emails from people or organizations they disliked, and block traffic to or from competitor web sites. They could make filtered service the default and force users to pay extra for the wide open internet. If you tried to shop at a store that hasn't paid them a kickback, they could steer you to a store that has. . . . If companies like AT&T and Verizon have their way, there will be two tiers of internet service: fast and expensive and slow and cheap (or cheaper). We unwealthy users -- students, scholars, universities, and small publishers -- wouldn't be forced offline, just forced into the slow lane. Because the fast lane would reserve a chunk of bandwidth for the wealthy, the peons would crowd together in what remained, reducing service below current levels. New services starting in the slow lane wouldn't have a fighting chance against entrenched players in the fast lane. Think about eBay in 1995, Google in 1999, or Skype in 2002 without the level playing field provided by network neutrality. Or think about any OA journal or repository today.58 Is Net neutrality a quaint anachronism of the Internet's distant academic/research roots that we would be better off without? Would new Internet companies and noncommercial services prosper better is it was gone, spurring on new waves of innovation? Would telecommunications companies (who may be part of larger conglomerates), free to charge for tiered-services, offer us exciting new service offerings and better, more reliable service? Defending the Internet Revolution Sixties icon Bob Dylan's line "Then you better start swimmin' or you'll sink like a stone" couldn't be more apt for those concerned with the issues outlined in this paper. Here's a brief overview of some of the strategies being used to defend the freewheeling Internet revolution. 1. Darknet: J. D. Lasica says: "For the most part, the Darknet is simply the underground Internet. But there are many darknets: the millions of users trading files in the shady regions of Usenet and Internet Relay Chat; students who send songs and TV shows to each other using instant messaging services from AOL, Yahoo, and Microsoft; city streets and college campuses where people copy, burn, and share physical media like CDs; and the new breed of encrypted dark networks like Freenet. . ." 59 We may think of the Darknet as simply fostering illegal file swapping by ordinary citizens, but the Darknet strategy can also be used to escape government Internet censorship, as is the case with Freenet use in China.60 2. Legislative and Legal Action: There have been attempts to pass laws to amend or reverse copyright and other laws resulting from the counter- Internet-revolution, which have been met by swift, powerful, and generally effective opposition from entertainment companies and other parties affected by these proposed measures. The moral of this story is that these large corporations can afford to pay lobbyists, make campaign contributions, and otherwise exert significant influence over lawmakers, while, by and large, advocates for the other side do not have the same clout. The battle in the courts has been more of a mixed bag; however, there have been some notable defeats for reform advocates, especially in the copyright arena (e.g., Eldred v. Ashcroft), where most of the action has been. 3. Market Forces: When commercial choices can be made, users can vote with their pocketbooks about some Internet changes. But, if monopoly forces are in play, such as having a single option for broadband access, the only other choice may be no service. However, as the open access movement (described later) has demonstrated, a concerted effort by highly motivated individuals and nonprofit organizations can establish viable new alternatives to commercial services that can change the rules of the game in some cases. Companies can also explore radical new business models that may appear paradoxical to pre-Internet-era thinking, but make perfect sense in the new digital reality. In the long run, the winners of the digital content wars may be those who aren't afraid of going down the Internet rabbit hole. 4. Creative Commons: Copyright is a two-edged sword: it can be used as the legal basis of licenses (and DRM) to restrict and control digital information or it can be used as the legal basis of licenses to permit liberal use of digital information. For example, the Creative Commons Attribution License requires that the work is attributed to the author; however, the work can be used for any commercial or noncommercial purpose without permission, including creating derivative works.61 By using one of the six major Creative Commons Licenses, authors can retain copyright, but significantly enrich society's collective cultural repository with works that can be freely shared for noncommercial purposes and, in some cases, used for commercial purposes and/or to easily build new derivative creative works. There are a variety of other licenses, such as the GNU Free Documentation License, that can be used for similar purposes.62 5. Open Access: Scholars create certain types of information, such as journal articles without expecting to be paid to do so, and it is in their best interests for these works to be widely read, especially by specialists in their fields.63 By putting e-prints (electronic preprints or postprints) of articles on personal home pages or in various types of digital archives (e.g., institutional repositories) in full compliance with copyright law and, if needed, in compliance with publisher policies, scholars can provide free global access to these works with minimal effort and at no cost (or little cost) to themselves. Further, a new generation of free e-journals are being published on the Internet that are being funded by a variety of business models, such as advertising, author fees, library membership fees, and supplemental products. These "open access" strategies make digital scholarly information freely available to users across the globe, regardless of their personal affluence or the affluence of their affiliated institutions. Impact On Libraries This paper's analysis of copyright, DRM, and network neutrality trends holds no good news for libraries. Copyright With the reach of copyright law constantly encompassing new types of materials and the duration of copyright terms ever lengthening, the public domain's growth is increasingly contingent copyright holders explicitly placing their works in it. Needless to say, the public domain is a primary source of materials that can be digitized without having to face a complex, potentially expensive, and sometimes hopeless permission clearance process. This process can be especially daunting for media works (such as films and video), even for the use of very short segments of these works. J. D. Lasica recounts his effort to get permission to use short music and film segments in a personal video: five out of seven music companies declined; six out of seven movie studios declined, and the one that agreed had serious reservations.64 The replies to his inquiry, for those companies that bothered to reply at all, are well worth reading. For U.S. libraries without the resources to deal with complicated copyrightrelated issues, the digitization clock stops at 1922, the last year we can be sure that a work is in the public domain without checking its copyright status and getting permission if it is under copyright.65 What can we look forward to? Lessig says: "Thus, in the twenty years after the Sonny Bono Act, while one million patents will pass into the public domain, zero copyrights will pass into the public domain by virtue of the expiration of a copyright term."66 (The Sonny Bono Term Extension Act was passed in 1998.) Digital preservation is another area of concern in a legal environment where most information is automatically copyrighted, copyright terms are lengthy (or endless), and information is increasingly licensed. Simply put, a library can't digitally preserve what it doesn't own, unless the work is in the public domain, the work's license permits it, or the work's copyright owner grants permission to do so. Or can it? After all, the Internet Archive doesn't ask permission ahead of time before preserving the entire Internet, although it responds to requests to restrict information. And that's why the Internet Archive is currently being sued by Healthcare Advocates Inc., who says that it: "is just like a big vacuum cleaner, sucking up information and making it available."67 If it is not settled out of court, this will be an interesting case for more digitally adventurous libraries to watch. As the cost of the hardware and software needed to effectively do so continues to drop, faculty, students, and other library users will increasingly want to repurpose content, digitizing conventional print and media materials, remixing digital ones, and/or creating new digital materials from both. With the "information commons" movement, academic libraries are increasingly providing users with the hardware and software tools to do so. Given that the wording of the U.S. Copyright Act Section 108 (f) (1) is vague enough that it could be interpreted include these tools when they are used for information reproduction, is the old "copyright disclaimer on the photocopier" solution enough in the new digital environment? Or, in light the unprecedented transformational power of these tools to create new digital works and their widespread use both within libraries and on campus, do academic libraries bear heavier responsibilities regarding copyright compliance, permission-seeking, and education? Similar issues arise when faculty want to place self-created digital works that incorporate copyrighted materials in electronic reserves systems or institutional repositories. End-user contributions to "Library 2.0" systems that incorporate copyrighted materials may also raise copyright concerns. DRM As libraries realize that they cannot afford dual formats, their new journal and index holdings are increasingly solely digital. Libraries are also licensing a growing variety of "born digital" information. The complexities of dealing with license restrictions for these commercial digital products are well understood, but imagine if DRM was layered on top of license restrictions. As we have discussed, DRM will allow content producers and distributors to slice, dice, and monetize access to digital information in ways that were previously impossible. What may be every publisher/vendor's dream, may be every library's nightmare. Aside from a potential surge of publisher/vendor-specific access licensing options and fees, libraries may also have to contend with publisher/vendor-specific DRM technical solutions, which may depend on particular hardware/software platforms, be incompatible with each other, decrease computer reliability and security, eliminate fair or otherwise legal use of DRM-protected information, raise user privacy issues, restrict digital preservation to bitstream preservation (if allowed by license), make it difficult to assess whether to license DRM-protected materials, increase the difficulty of providing unified access to information from different publishers and vendors, multiply user support headaches, and necessitate increased staffing. DRM makes solving many of these problems both legally and technically impossible. For example, under the DMCA, libraries have the right to circumvent the DRM for a work in order to evaluate whether they want to purchase it, however, they cannot do so without the software tools to crack the work's DRM protection. But, the distribution of those tools is illegal under the DMCA, and local development of such tools is likely to be prohibitively complex and expensive.68 Fostering Alternatives to Restrictive Copyright and DRM Given the uphill battle in the courts and legislatures, Creative Commons licenses (or similar licenses) and open access are particularly promising strategies to deal with copyright and DRM issues. Copyright laws do not need to change for these strategies to be effective. It is not just a question of libraries helping to support open access by paying for institutional memberships to open access journals, building and maintaining institutional repositories, supporting open access mandates, encouraging faculty to edit and publish open access journals, educating faculty about copyright and open access issues, and encouraging them to utilize Creative Commons (or similar) licenses. To truly create change, libraries need to "walk the talk" and either let the public domain materials they digitize remain in the public domain or put them under Creative Commons (or similar licenses), and, when they create original digital content, put it under Creative Commons (or similar) licenses. As the open access movement has shown, using Creative Commons licenses doesn't rule out revenue generation (if that is an appropriate goal), but it does require facilitating strategies, such as advertising and offering fee-based add-on products and services. Net Neutrality There are many unknowns surrounding the issue of Net neutrality, but what is clear is that it is under assault. It is also clear that Internet services are more likely to require more, not less, bandwidth in the future as digital media and other high-bandwidth applications become more commonplace, complex, and interwoven into a larger number of Internet systems. One would imagine that if a corporation such as Google had to pay for a highspeed digital lane, it would want it to reach as many consumers as possible. So, it may well be that libraries' Google access would be unaffected or possibly improved by a two-tier (or multiple-tier) Internet "speed-lane" service model. Would the same be true for library-oriented publishers and vendors? That may depend on their size and relative affluence. If so, the ability of smaller publishers and vendors to offer innovative bandwidth-intensive products and services may be curtailed. Unless they are affluent, libraries may also find that they are confined to slower Internet "speed lanes" when they act as information providers. For libraries engaged in digital library, electronic publishing, and institutional repository projects, this may be problematic, especially as they increasingly add more digital media, large-data-set, or other bandwidth-intensive applications. It's important to keep in mind that Net neutrality impacts are tied to where the chokepoints are, with the most serious potential impacts being at chokepoints that affect large numbers of users, such as local ISPs that are part of large corporations, national/international backbone networks, and major Internet information services (e.g.,Yahoo!). It is also important to realize that the problem may be partitioned to particular network segments. For example, on-campus network users may not experience any speed issues associated with the delivery of bandwidth-intensive information from local library servers because that network segment is under university control, but remote users, including affiliated home users, may experience throttled down performance beyond what would normally be expected due to "speed-lane" enforcement by backbone providers or local ISPs controlled by large corporations. Likewise, users at two universities connected by a special research network may experience no issues related to accessing the other university's bandwidth-intensive library applications from on-campus computers because the backbone provider is under a contractual obligation to deliver specific network performance levels. Although we have been using the example of "speed lanes" in our examination of potential Net neutrality impacts on libraries, the problem is more complex than this, because network services, such as peer-to-peer networking protocols, can be completely blocked, digital information can be blocked or filtered, and other types of fine-grained network control can be exerted. Conclusion This paper has deliberately presented one side of the story. It should not be construed as saying that copyright law should be abolished or violated, that DRM can serve no useful purpose (if it is possible to fix certain critical deficiencies and if it is properly employed), or that no one has to foot the bill for content creation/marketing/distribution and ever-more-bandwidth-hungry Internet applications. Nor should it be construed to say that the other side of the story, the side most likely told by spokespersons of the entertainment, information, and telecommunications industries, has no validity and doesn't deserve to be heard. However, that side of the story is having no problem being heard, especially in the halls of Congress. The side of the story presented in this paper isn't as widely heard, at least, not yet. Nor does it intend to imply that entertainment, information, telecommunications, and other corporate executives lack a social conscience, are fully unified in their views, or are unconcerned with the societal implications of their positions. However, by focusing on short-term issues, they may not fully realize the potentially negative long-term impact that their positions may have on their own enterprises. Nor has this paper presented all of the issues that threaten the Internet, such as assaults on privacy, increasingly determined (and malicious hacking), state and other censorship, and the seemingly insolvable problem of overlaying national laws on a global digital medium. What this paper has said is simply this: three issues -- a dramatic expansion of the scope, duration, and punitive nature of copyright laws; the ability of DRM to lock-down content in an unprecedented fashion; and the erosion of Net neutrality -- bear careful scrutiny by those who believe that the Internet has fostered (and will continue to foster) a digital revolution that has resulted in an extraordinary explosion of innovation, creativity, and information dissemination. These issues may well determine whether the much-touted "information superhighway" lives up to its promise or simply becomes the "information toll road" of the future, ironically resembling the pre-Internet online services of the past. Notes 1. Gary Flake, "How I Learned to Stop Worrying and Love the Imminent Internet Singularity," http://castingwords.com/transcripts/O3/5073.html. 2. Lawrence Lessig, Free Culture: The Nature and Future of Creativity (New York, Penguin Books, 2005), 130, http://www.free-culture.cc/. 3. Ibid, 131. 4. Ibid, 117-118. 5. William F. Patry, Copyright Law and Practice (Washington, DC: Bureau of National Affairs, 2000), http://digital-law-online.info/patry/. 6. U.S. Copyright Office, Copyright Basics (Washington, DC: U.S. Copyright Office, 2000), http://www.copyright.gov/circs/circ1.html. 7. Ibid. 8. Lessig, Free Culture: The Nature and Future of Creativity, 133. 9. Barbara M. Waxer and Marsha Baum, Internet Surf and Turf Revealed: The Essential Guide to Copyright, Fair Use, and Finding Media (Boston: Thompson Course Technology, 2006), 17. 10. Patry, Copyright Law and Practice; and Lessig, Free Culture: The Nature and Future of Creativity, 133. 11. Jessica Litman, Digital Copyright (Amherst: Prometheus Books, 2001), 35-63. 12. Lessig, Free Culture: The Nature and Future of Creativity, 134. 13. Ibid, 326. 14. Association of American Universities, the Association of Research Libraries, the Association of American University Presses, and the Association of American Publishers, Campus Copyright Rights & Responsibilities: A Basic Guide to Policy Considerations (Association of American Universities, the Association of Research Libraries, the Association of American University Presses, and the Association of American Publishers, 2006), 8, http://www.arl.org/info/frn/copy/CampusCopyright05.pdf. 15. George H. Pike, "The Delicate Dance of Database Licenses, Copyright, and Fair Use," Computers in Libraries 22, no. 5 (2002): 14, http://infotoday.com/cilmag/may02/pike.htm. 16. Patry, Copyright Law and Practice. 17. Computer Crime and Intellectual Property Section Criminal Division, U.S. Department of Justice, "Prosecuting Intellectual Property Crimes Manual," http://www.cybercrime.gov/ipmanual.htm; and U.S. Copyright Office, Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code (Washington, DC: U.S. Copyright Office, 2003), http://www.copyright.gov/title17/circ92.pdf. 18. Recording Industry Association of America, "Copyright Laws," http://www.riaa.com/issues/copyright/laws.asp. 19. Kenneth D. Crews, Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions, 2nd ed. (Chicago: American Library Association, 2006), 94. 20. Lessig, Free Culture: The Nature and Future of Creativity, 8. 21. Ibid, 51. 22. Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (New York: Vintage Books, 2002), 165-166, 176. 23. Lessig, Free Culture: The Nature and Future of Creativity, 53-61. 24. Ibid, 53. 25. Ibid, 59-61. 26. James Boyle, Shamans, Software and Spleens: Law and the Construction of the Information Society (Cambridge: Harvard University Press, 1996), 172. 27. William W. Fisher III, Promises to Keep: Technology, Law, and the Future of Entertainment (Stanford, CA: Stanford University Press 2004), 202. 28. Lessig, Free Culture: The Nature and Future of Creativity, 289-293. 29. Litman, Digital Copyright, 179-180. 30. Ibid, 181-184. 31. Michael Godwin, Digital Rights Management: A Guide for Librarians (Washington, DC: Office for Information Technology Policy, American Library Association, 2006), 1, http://www.ala.org/ala/washoff/WOissues/copyrightb/digitalrights/DRMfin al.pdf. 32. Ibid, 10-18. 33. Bill Rosenblatt, Bill Trippe, and Stephen Mooney, Digital Rights Management: Business and Technology (New York: M&T Books, 2002), 61-64. 34. Godwin, Digital Rights Management: A Guide for Librarians, 2. 35. David Mann, "Digital Rights Management and People with Sight Loss," INDICARE Monitor 2, no. 11 (2006), http://www.indicare.org/tikiprint_ article.php?articleId=170. 36. Julie E. Cohen, "DRM and Privacy," Communications of the ACM 46, no. 4 (2003), 46-49. 37. Rosenblatt, Trippe, and Mooney, Digital Rights Management: Business and Technology, 45. 38. J. Alex Halderman and Edward W. Felten, "Lessons from the Sony CD DRM Episode," 14 February 2006, http://itpolicy.princeton.edu/pub/sonydrmext. pdf. 39. Godwin, Digital Rights Management: A Guide for Librarians, 18-36. 40. Wikipedia, "Analog Hole," http://en.wikipedia.org/wiki/Analog_hole. 41. Godwin, Digital Rights Management: A Guide for Librarians, 18-20. 42. Ibid, 36. 43. Robert A. Gehring, "Trusted Computing for Digital Rights Management," INDICARE Monitor 2, no. 12 (2006), http://www.indicare.org/tikiread_ article.php?articleId=179. 44. Seth Schoen, " Trusted Computing: Promise and Risk," http://www.eff.org/Infrastructure/trusted_computing/20031001_tc.php. 45. Pamela Samuelson, "DRM {and, or, vs.} the Law," Communications of the ACM 46, no. 4 (2003), 43-44. 46. Declan McCullagh, "Congress Raises Broadcast Flag for Audio," CNET News.com, 2 March 2006, http://news.com.com/Congress+raises+broadcast+flag+for+audio/2100- 1028_3-6045225.html. 47. Ibid. 48. Danny O'Brien, "A Lump of Coal for Consumers: Analog Hole Bill Introduced," EFF DeepLinks, 16 December 2005, http://www.eff.org/deeplinks/archives/004261.php. 49. Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity (New York: New York University Press, 2001), 174-175. 50. Lessig, The Future of Ideas: The Fate of the Commons in a Connected World, 36-37. 51. EDUCAUSE, "Net Neutrality," http://www.educause.edu/content.asp?PAGE_ID=645&PARENT_ID=807&bhc p=1. 52. Electronic Frontier Foundation, "DearAOL.com Coalition Grows from 50 Organizations to 500 In One Week," 7 March 2006, http://www.eff.org/news/archives/2006_03.php - 004461. 53. Catherine Yang, "Is Verizon a Network Hog?," BusinessWeek, 13 February 2006, 58, http://www.businessweek.com/technology/content/feb2006/tc20060202_0618 09.htm. 54. Ibid. 55. Jonathan Krim, "Executive Wants to Charge for Web Speed," Washington Post, 1 December 2005, D05, http://www.washingtonpost.com/wpdyn/ content/article/2005/11/30/AR2005113002109.html. 56. Harold Furchtgott-Roth, "AT&T, or Another Telecom Takeover," The New York Sun, 7 March 2006, http://www.nysun.com/article/28695. (See also: http://www.furchtgott-roth.com/news.php?id=87.) 57. John Windhausen, Jr., Good Fences Make Bad Broadband: Preserving an Open Internet through Net Neutrality (Washington, DC: Public Knowledge, 2006), http://www.publicknowledge.org/content/papers/pk-net-neutrality-whitep- 20060206. 58. Peter Suber, "Three Gathering Storms That Could Cause Collateral Damage for Open Access," SPARC Open Access Newsletter, no. 95 (2006), http://www.earlham.edu/~peters/fos/newsletter/03-02-06.htm - collateral. 59. J. D. Lasica, Darknet: Hollywood's War Against the Digital Generation (New York: John Wiley & Sons, 2005), 45. 60. John Borland, "Freenet Keeps File-Trading Flame Burning," CNET News.com, 28 October 2002, http://news.com.com/2100-1023-963459.html. 61. Creative Commons, "Attribution 2.5," http://creativecommons.org/licenses/by/2.5/. 62. Lawrence Liang, "A Guide To Open Content Licences," http://pzwart.wdka.hro.nl/mdr/research/lliang/open_content_guide. 63. Peter Suber, "Open Access Overview: Focusing on Open Access to Peer- Reviewed Research Articles and Their Preprints," http://www.earlham.edu/~peters/fos/overview.htm; and Charles W. Bailey, Jr., "Open Access and Libraries," in Mark Jacobs, ed., Electronic Resources Librarians: The Human Element of the Digital Information Age (Binghamton, NY: Haworth Press, 2006), forthcoming, http://www.digitalscholarship.com/cwb/OALibraries.pdf. 64. Lasica, Darknet: Hollywood's War Against the Digital Generation, 72-73. 65. Waxer and Baum, Internet Surf and Turf Revealed: The Essential Guide to Copyright, Fair Use, and Finding Media, 17. 66. Lessig, Free Culture: The Nature and Future of Creativity, 134-35. 67. Joe Mandak, " Internet Archive's Value, Legality Debated in Copyright Suit," Mercury News, 31 March 2006, http://www.mercurynews.com/mld/mercurynews/news/local/states/california/northern_california/14234638.htm. 68. Arnold P. Lutzker, Primer on the Digital Millennium: What the Digital Millennium Copyright Act and the Copyright Term Extension Act Mean for the Library Community (Washington, DC: ALA Washington Office, 1999), http://www.ala.org/ala/washoff/WOissues/copyrightb/dmca/dmcaprimer.pdf. The Chamberlain Group, Inc. v. Skylink Technologies, Inc. decision offers some hope that authorized users of DRM-protected works could legally circumvent DRM for lawful purposes if they had the means to do so (see: Crews, Copyright Law for Librarians And Educators: Creative Strategies And Practical Solutions, 96-97). Copyright © 2006 by Charles W. Bailey, Jr. This work is licensed under the Creative Commons Attribution-NonCommercial 2.5 License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc/2.5/ or send a letter to Creative Commons, 543 Howard Street, 5th Floor, San Francisco, California, 94105, USA. This paper will appear in Information Technology and Libraries 25, no. 3 (2006). From seth.johnson at RealMeasures.dyndns.org Tue May 9 08:27:36 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Mon, 08 May 2006 22:57:36 -0400 Subject: [Commons-Law] MIT Tech Review: Webcasting Gets a Reprieve Message-ID: <44600520.7B51801@RealMeasures.dyndns.org> > http://www.technologyreview.com/read_article.aspx?id=16783 Webcasting Gets a Reprieve International treaty provisions that would prevent the retransmission of media over the Web have been dropped -- for now. By Wade Roush Monday, May 08, 2006 If proposed rules preventing the digital retransmission of TV, radio, or cable broadcasts are adopted as part of an international treaty on broadcasting, it could have repercussions throughout the nascent world of Web broadcasting. For instance, it might become illegal for musicians to offer recordings of their performances on their own websites, or for bloggers to post video and audio files -- even if the content is in the public domain. But last week countries opposed to these provisions -- which would have given broadcasters and cable TV companies broad new rights to control information on the Internet -- managed to strip them from the treaty, at least temporarily. During a five-day meeting in Geneva of the U.N. World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights, an unlikely coalition of delegates from developing nations and technology organizations such as Intel and the U.S. Telecom Association voiced strong objections to treaty provisions covering webcasting and "simulcasting" over broadcast or cable networks and computer networks. By the end of the meeting, on May 5, the committee, which had intended to finish a draft treaty that could be agreed upon by the WIPO General Assembly in 2007, decided to send the assembly only the less controversial sections of the treaty. Debate over the Internet provisions was deferred until this fall. "The good news is that webcasting is out of the treaty," says Robin Gross, executive director of IP Justice, a civil liberties organization based in San Francisco, which sent a representative to the meeting. "But it's a little too soon to celebrate," he adds, since one article still in the main draft of the treaty gives broadcasters the exclusive right to authorize retransmission of their broadcasts by any means, including over computer networks. Disparagement of the proposed webcasting rules has been rife since a previous meeting of the WIPO committee last November, when delegates from the United States proposed extending the draft treaty's protections for traditional broadcasts to cover material delivered over the Internet. According to Gross and other observers, the "WIPO Treaty on the Protection of Broadcasting Organizations," as the document is called, was originally conceived to strengthen legal safeguards against signal theft -- the interception and sharing of satellite, cable, or over-the-air broadcasts. But as work on the draft treaty progressed, proposed rules giving the original broadcasters of a program the sole power to authorize such rebroadcasts via traditional means grew to include Internet transmission. "We saw the big broadcasters getting very interested in this treaty and adding a whole new slew of rights," Gross says, as well as inserting new proposals via a sympathetic U.S. delegation to the WIPO committee. The proposed webcasting rules would give broadcasting organizations a new kind of property right over audio and video transmissions. Once a film, TV show, or song had been broadcast, the draft proposals gave the broadcaster control over access to that content for as long as 50 years. In Geneva last week, representatives from Brazil, Iran, Thailand, India, Chile, Colombia, Peru, Argentina, Bangladesh, and Ghana, as well as other nations, expressed anger about the provisions, and questioned why the language from the November meeting remained in the draft treat -- despite the objections of many WIPO members. "There cannot be any rights [in the treaty] overlaying the rights of the content owners," stated one delegate from India, according to a transcript of the meeting prepared by the Electronic Frontier Foundation (EFF). "India opposes the inclusion of webcasting in any fashion...the focus should be empowering broadcast organizations to prevent piracy of signals." Allied with the dissenting nations were several U.S. technology organizations, including chipmaker Intel. Jeff Lawrence, director of digital home and content policy at Intel, and Brad Biddle, a senior attorney in Intel's Systems Technology Lab, released a statement in advance of the meeting expressing the company's opposition to the treaty. "Proponents have not demonstrated that the benefits of creating new exclusive rights outweigh the burdens that these new rights impose," they said. The problem, from Intel's point of view, is that the proposed webcasting restrictions could limit the ways consumers can manipulate and experience digital media in their homes -- and therefore depress the market for new entertainment-oriented computing systems. "The treaty could give broadcasting organizations the right to control uses of content within the home -- uses that are legitimate and non-infringing under copyright law," wrote Lawrence and Biddle. "For example, makers of digital video recorders could be required to obtain licenses and agree to limitations imposed by broadcasters in order to enable 'time shifting' of broadcast content." In the end, the U.N. committee members voted to remove the webcasting language from the main treaty draft, and instead placed it into a new proposal to be discussed at a separate meeting. The U.S. delegation was "not happy about the outcome," according to Gwen Hinze, a staff attorney for the EFF who blogged about the conference from Geneva. The delegation "said it was concerned with the 'missed opportunity' to provide protection" for webcasts by traditional broadcasters, he wrote. "[Now] we wait to see the new draft proposal [due in August]." The mission of the World Intellectual Property Organization, one of 16 specialized agencies of the United Nations, is primarily to harmonize copyright and patent laws around the world. It oversees 23 international treaties on intellectual property rights enacted since 1883, and periodically drafts new treaties to keep up with changing markets and communications technologies. Its last major treaties, the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty, both adopted in 1996, forced signatories to amend their own copyright laws to deal with the rise of digital piracy, for example, by outlawing attempts to foil digital encryption schemes and other anti-copying technologies. In the United States, these treaties led directly to the enactment of the Digital Millennium Copyright Act of 1998, which has been criticized by freedom-of-information advocates for stifling fair and legal uses of copyrighted content. "WIPO is a tool by which old media industries try to suppress the new developments that threaten their control," says Tim O'Reilly, CEO of technology publisher O'Reilly Media, one of 20 technology companies to endorse an EFF briefing paper opposing the webcasting provisions last November. "While the Net is not without its problems, it's still in the formative stages, and I'd sure hate to see it put under all the same regimes as old media," says O'Reilly. "After all, the new activity on the net arose specifically because of the opportunity to route around some of those restrictions." From shveta at sarai.net Tue May 9 22:34:01 2006 From: shveta at sarai.net (Shveta) Date: Tue, 09 May 2006 22:34:01 +0530 Subject: [Commons-Law] Nangla/SC Proceedings/Notes/9th May 2006 Message-ID: <4460CB81.60905@sarai.net> Dear All, Today, on May 09, 2006, Hon'ble Justice Ruma Pal and Justice Markhande Katju of the Supreme Court, set a time of three weeks for the demolition of the remainder of Nangla Maanchi. The half an hour hearing was held in Court Number 02 (as item number 16) of the Supreme Court, Barakhamba Road, Delhi, from 11:00 AM to 11:30 AM. The hon'ble bench stated that relocation of all the [remaining] inhabitants of Nangla was "not possible" before the demolition. It stated that all it could grant Nangla Maanchi was a time of three weeks, before demolition, "full stop". The hon'ble bench stated that the power house, whose land had been 'encroached' by the inhabitants of Nangla had given "some date for construction", and that there has to be "balance" - that the land has "uses that cannot be denied", and that the more settlements are removed, the "more they come". On the question of the timeline for this construction, the hon'ble bench stated that whatever the case may be, "occupation of land without legal authority cannot be allowed. Even people whose lands have legal rights have been relocated" for projects. In response to a request on deliberation on the question of cut-off dates for eligibility for relocation, the hon'ble bench stated, "from what was a few tenemants" it has grown to "thousands", and "each tenemant had a family". They have been "growing and growing", that it was becoming difficult to "deal with the problem". It also stated, during the court proceedings, that if public land is occupied, it will "have to be vacated", that the right to shelter did not mean that "everyone be given shelter". On the question of Ghewda being without any infrastructure or facilities (where the inhabitants of Nangla Maanchi will be temporarily relocated), the hon'ble bench stated that in Bawana, a resettlement colony, people had sold off their plots of land. On the question of the difficulty of being on the streets in this intense heat, the hon'ble bench stated that it is "never comfortable to live out", that there will always be intense heat, or cold, or rainfall in the city. The hon'ble bench suggested that people need not come to Delhi, unless they can afford to live in the city. Present at the hearing from Ankur/Cybermohalla: Sharmila Bhagat (Ankur) Shabana (Ankur) Avantika (Ankur) Shveta Sarda (Sarai/Cybermohalla) Note-taking by Shveta Sarda From seth.johnson at RealMeasures.dyndns.org Wed May 10 01:58:20 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Tue, 09 May 2006 16:28:20 -0400 Subject: [Commons-Law] Berninger: Even Bells Need Net Neutrality Message-ID: <4460FB64.33ED9E91@RealMeasures.dyndns.org> > http://gigaom.com/2006/05/09/why-even-bells-need-net-neutrality/ Why Even Bells Need Net Neutrality Posted in Wired By Daniel Berninger, VP, Senior Analyst, Tier1 Research, dan at tier1research.com Definition: Net Neutrality - Internet access without discrimination by use or user except as required for network management purposes. The FCC's decision to relieve AT&T and Verizon of net neutrality requirements in August 2005 definitively broke the chain of events the companies use to assert right-of-way privileges. The Bells claim privileges based on over 100 years of practice that may or may not coincide with the intent and limits of the original deals, but the resulting laws explicitly require a public purpose in exchange for the right-of-way concessions. The obligations established on a state by state basis sometimes include build-out requirements or other compensation, but they all specify that access to state right-of-way at largely no cost or limit requires common carrier status (aka net neutrality.) The loss of common carrier status invalidates the contracts. The Bell companies have no access to state right-of-way for deployment of private, closed, non-neutral, non-common carrier network deployments. There may exist many unfulfilled obligations in the century old details of these arrangements, but there exists no doubt right-of-way access requires common carrier status. Maryland represents a typical case. The terms of right-of-way obtained by the Chesapeake and Potomac Telephone Company (now a unit of Verizon) after its founding in 1883 persist in the Maryland Code section covering public utility companies. Title 1-101 defines a telephone company as "a public service company that owns telephone lines to receive or transmit telephone communications." The same section defines a public service company as a "common carrier" company. Title 8-103 "Construction of lines and fixtures" defines the right-of-way available to the public service telephone company. The authority of Maryland to regulate telephone companies shows up in the Maryland Constitution Article 12 titled "Public Works" noting among other things that "the Directors of all said Public Works guard the public interest, and prevent the establishment of tolls which shall discriminate against the interest of the citizens or products of this State." Another interpretation to the plain language requiring a public purpose for right-of-way concessions does not exist. Does anyone believe government should grant public assets to private entities for private purposes? The loss of net neutrality changes the terms under which the Bells enjoy access to right-of-way. The non-neutral private network deployments associated with the Bell company broadband offers look like the non-common carrier networks of the cable companies. Cable companies do not enjoy the same no cost access to right-of-way and pay franchise fees that typically equal 5% of gross revenues or $30 billion over the last ten years. The assertion that property rights convey an ability to leverage any business model regarding the Internet seems ironic given the telephone companies own less than 2% of the property where they deploy infrastructure. The real estate Verizon owns directly represents less than 3% of the value claimed for equipment and infrastructure. The exposure to litigation for private use of public right-of-ways already exists. Verizon deployed FiOS as a entirely non-common carrier private network. Scrutiny of right-of-way arrangements could change the balance of power in the battle between the Bells and municipal wireless projects. Ed Whitacre and Ivan Seidenberg might regret their push to remove government oversight. The regulatory sphere offers cozy warmth compared the to risks that await their plans to extract increasing private returns from public assets and government granted monopoly. Regulation has proven a potent defense from antitrust litigation while still allowing price increases, industry consolidation, and the use of the risk free returns from local telephone monopoly to subsidize expansion in new markets like wireless and broadband. The tariffed rate doctrine has long protected the Bells from pricing litigation. Verizon does not report R&D as a separate expense on income statements like Intel, Microsoft, or Google, because lobbying and litigation rather than technology dominates spending. The Bells want Congress to believe ignoring net neutrality requirements will incent investment in broadband networks, but their idea of return on investment means monopoly rents. The Bells only invest in more monoply which usually means buying each other. The track record shows steadily lower spending on networks to increase free cash flow for acquisitions. The $140 billion SBC spent acquiring Ameritech, PacBell, SNET, AT&T Wireless, and AT&T lifted the company's market cap by only $40 billion. The fact that $100 billion disappeared might suggest the need for a different strategy, but the new AT&T seeks government approval to spend $67 billion to acquire BellSouth. SBC missed an opportunity as $140 billion happens to be about what it would cost to run fiber to every home in America. The Bells fund think tanks to explain why private organizations need to privatize a public asset, but the decision process in Congress should consider the public's return on investment from the previous 100 years of access to right-of-way. It hardly qualifies as a public good that the Bells trimmed the number of people they employ by 40% and doubled the price of local service since 1984. The $200 billion in profit generated by Bells over the period did not even benefit investors as their chosen investments left equity values relatively unchanged. Ed Whitacre might want to pay fair value for the public and private property utilized by the telephone network, before asking ".why should they be allowed to use my pipes." when explaining to a Business Week reporter why Google, Yahoo, and Vonage should pay new usage based fees. There will be arguments Internet access represents an "incidental use" allowed by state laws, but these arguments will succeed only at the cost of the Bell's much promised transformation plans. The desire to extinguish net neutrality does not arise from worries about incidental use. The Bell companies need to stop the neutral Internet from erasing the legacy telephone network's voice revenues. Price discrimination enables metering of Internet access by keeping per bit price of low bandwidth voice relatively high while offering relatively lower per bit prices to initiate a video revenue stream. Net neutrality stands in the way of their becoming digital economy toll collectors. From seth.johnson at RealMeasures.dyndns.org Wed May 10 02:07:05 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Tue, 09 May 2006 16:37:05 -0400 Subject: [Commons-Law] Network Neutrality Turf War in House Message-ID: <4460FD71.FD6AB31D@RealMeasures.dyndns.org> > http://www.hollywoodreporter.com/thr/television/article_display.jsp?vnu_content_id=1002464762 May 09, 2006 McCain tunes a la carte bill for cablers By Brooks Boliek WASHINGTON -- A key senator is planning to introduce legislation designed to spur cable companies into offering programming on a channel-by-channel basis, industry sources said Monday. The bill, which Sen. Jon McCain has been mulling for some time, would relieve such cable companies as Comcast and Time Warner that have significant programming interests of their local franchise requirements if they offer a la carte channel choices, industry executives said. While McCain could introduce the legislation as early as Tuesday its chances for passage appeared slim as there are few work days left in this Congress and lawmakers are eager to return home to campaign for re-election. McCain's move comes as momentum for approval of legislation that more broadly alters the regulatory landscape for cable and telephone companies appeared to slow. Sen. Ted Stevens, R-Alaska, has scheduled a hearing for May 18 on his legislation that aims to make it easier for telephone companies to compete with cable companies in the video marketplace. Stevens, who chairs the Senate Commerce Committee, plans for a pair of hearings on his legislation. Meanwhile, in the House, legislation designed to make it easier for the big phone companies to get into the video delivery business has become part of a turf war between the House Judiciary Committee and the House Energy and Commerce Committee. The House Commerce Committee overwhelmingly approved legislation last week giving telephone companies a national video franchise (HR 4/27). Judiciary Committee chairman Rep. F. James Sensenbrenner Jr., R-Wis., asked the House leadership for a cut at the legislation. In a 24-page letter to the House parliamentarian, Sensenbrenner said his committee should get to review the legislation because it steps on that panel's copyright jurisdiction. The Commerce committees on both sides of the Capitol have jurisdiction of telecommunications, while the Judiciary committees have jurisdiction of copyright issues. Those jurisdictional issues often collide. If the Judiciary Committee gets to review the bill -- making any changes it wants or rewriting it entirely -- it will be that much more difficult to win approval of the bill this year. Any legislation that doesn't win approval by both houses this Congress will die. Once the new Congress comes in following the November elections, all bills will have to start over again from scratch. All the hearings and committee machinations make it more unlikely that a bill can make it to the president's desk for his signature. Both houses have to approve identical bills before President Bush would get a chance to sign it. "It looks like things have slowed down quite a bit," one industry lobbyist said. Failure to win approval for Communications Opportunity, Promotion and Enhancement Act (COPE Act) would be a victory for the cable industry and proponents of so-called "net neutrality." Although the cable industry is not openly lobbying against the COPE bill as approved by the Commerce Committee, as they persuaded lawmakers to modify COPE so they get relief from local franchise requirements once a phone company enters the market, the bill's death would not raise any howls from them. Network-neutrality proponents, mostly Democrats, contend that the government should prevent the network companies from favoring one person or company's programming or data over another. They are backed by many of the nation's Internet and high-tech companies, including Google, Amazon and Microsoft. Opponents of the idea, mostly Republicans, contend that a network-neutrality requirement is an unnecessary government intrusion. They are backed by such big network companies as AT&T, Verizon and Comcast. The bill's failure would give network-neutrality proponents more time to win lawmakers over to their view, and the election could make it easier for them if lawmakers were elected who are more amenable to their views. From venkyh at gmail.com Wed May 10 10:07:09 2006 From: venkyh at gmail.com (Venkatesh Hariharan) Date: Wed, 10 May 2006 10:07:09 +0530 Subject: [Commons-Law] USPTO to use peer to patent approach Message-ID: <3f400ec0605092137v4fd5aa5fuba361eb1de229541@mail.gmail.com> http://yro.slashdot.org/yro/06/05/09/1228221.shtml The USPTO plans to use a collaborative, wiki based approach to allow people like you and I to find bogus patents. Venky From shuddha at sarai.net Wed May 10 12:53:22 2006 From: shuddha at sarai.net (Shuddhabrata Sengupta) Date: Wed, 10 May 2006 12:53:22 +0530 Subject: [Commons-Law] Re: Nangla/SC Proceedings/Notes/9th May 2006 In-Reply-To: <4460CB81.60905@sarai.net> References: <4460CB81.60905@sarai.net> Message-ID: <446194EA.2000103@sarai.net> Dear Shveta, Many thanks for the precise and rich note taking from the Supreme Court about the destiny of the special leave petition filed on behalf of the inhabitants of Nangla Machi. I find the remarks made by the honourable bench of Justice Ruma Pal and Justice Markhande Katju extremely illuminating. They have opened doors in my understanding of the Indian Constitution and the rule of law, and flooded by being with insight and clarity. I hope that the government recognizes the sagacity of the hon'ble bench and awards them with the highest civilian honours at the earliest for acting with such alacrity to save our city and protect the spirit if not the letter of our constitution. Three things stand out, which as a lay, legally illiterate person, I think are quite remarkable in the way they elucidate the working of the best intelligences of the judiciary. 1. One, their wisdom on matters of the weather, (that it is "never comfortable to live out", that there will always be intense heat, or cold, or rainfall in the city). In fact, this is of the utmost importance, because given the nature of our city, those who cannot afford air conditioners, central heaters, generators and uninterrupted power supply should all be asked to leave our fair city. This will leave, all of Lutyens Delhi and some pockets straddling the ring road intact. The rest of the city in fact should be destroyed. Systematically. Something like this was done in 1857, next year is the hundred and fiftieth anniversary of that time, and there is no better way to commemorate the sacrifices of the Indian rebel martyrs and the forward thinking nature of the East India Company's military urban planning division, than to repeat that exercise on a grand scale, so as to ensure that only those who deserve to live in Delhi should do so. 2. Following from the above, we should do the utmost to ensure that the hon'ble benches wise suggestion that, 'If you cannot afford to live in Delhi, you need not come here' be implemented at the earliest. This suggestion needs to be recognized for the great innovation that it represents, implying that the retrograde step of de-linking property from citizenship and civic/civil rights, which all democratic movements and revolutions (even of a thourouhgly formal nature) had sought to advance, has now been finally jettisoned by the Supreme Court of India as a foundational legal principle. Before this, we all suffered under the terrible delusion that regardless of whether you were rich or poor, we all had a human right to make a decent living in the city. Now the matter is clear. And the poor must be put away where they belong, so that the rest of us can be equal before the law. Some of us have been anticipating this for some time now, after all, one applies for a credit card, or a club membership, and one's chances of having one's application accepted do depend on income, ownership of property, vehicle (preferably four wheeler) etc. Now, this ruling suggests that the same convenient and efficient principle be applied to habitation in the city, in fact to citizenship itself. The hundreds of years wasted in Democratic efforts, which have only brought slums and ruination on all good nations, can now be finally reverse, thanks to this epoch making judgement. I am speechless in admiration for the hon'ble benches hon'ble sagacity. 3. The hon'ble bench goes on to observe, as per your report, that 'The right to shelter did not mean that everyone will have to get shelter'. This is yet another stroke of sheer judicial (and judicious) genius. Taken to its logical conclusion, this statement, implies that the right to life does not mean that everyone has to live, the right to liberty and freedom of expression does not mean that everyone has to be at liberty to say what they want, and so on. By one stroke, the honourable bench has emptied the word 'right' of its inconvenient associations, and filled it with the content of the word 'privilege'. This has far reaching implications for our polity, which any right thinking person will welcome. It means for instance, that a campaign should now be undertaken, inspired by the examples set by the Honourable Justices Pal & Katju for amending the Indian constitution such that we have what is only right and proper, meaning, a body of fundamental restrictions, and a few reasonable rights, instead of the other way round. Once this is done, judicial efficiency will increase, the back log of cases will diminish, and all manner of uncouth, poor, dirty, ganda log can be locked away in labour camps to grow organic zuccini, while the true inheritors and custodians of the Indian Republic Raj get down to real business. Rise and Shine India ! All hail our glorious Supreme Court. best Shuddha Shveta wrote: > Dear All, > > Today, on May 09, 2006, Hon'ble Justice Ruma Pal and Justice Markhande > Katju of the Supreme Court, set a time of three weeks for the demolition of > the remainder of Nangla Maanchi. The half an hour hearing was held in Court > Number 02 (as item number 16) of the Supreme Court, Barakhamba Road, Delhi, > from 11:00 AM to 11:30 AM. > > The hon'ble bench stated that relocation of all the [remaining] inhabitants > of Nangla was "not possible" before the demolition. It stated that all it > could grant Nangla Maanchi was a time of three weeks, before demolition, > "full stop". > > The hon'ble bench stated that the power house, whose land had been > 'encroached' by the inhabitants of Nangla had given "some date for > construction", and that there has to be "balance" - that the land has "uses > that cannot be denied", and that the more settlements are removed, the > "more they come". On the question of the timeline for this construction, > the hon'ble bench stated that whatever the case may be, "occupation of land > without legal authority cannot be allowed. Even people whose lands have > legal rights have been relocated" for projects. > > In response to a request on deliberation on the question of cut-off dates > for eligibility for relocation, the hon'ble bench stated, "from what was a > few tenemants" it has grown to "thousands", and "each tenemant had a > family". They have been "growing and growing", that it was becoming > difficult to "deal with the problem". It also stated, during the court > proceedings, that if public land is occupied, it will "have to be vacated", > that the right to shelter did not mean that "everyone be given shelter". > > On the question of Ghewda being without any infrastructure or facilities > (where the inhabitants of Nangla Maanchi will be temporarily relocated), > the hon'ble bench stated that in Bawana, a resettlement colony, people had > sold off their plots of land. On the question of the difficulty of being on > the streets in this intense heat, the hon'ble bench stated that it is > "never comfortable to live out", that there will always be intense heat, or > cold, or rainfall in the city. The hon'ble bench suggested that people need > not come to Delhi, unless they can afford to live in the city. > > Present at the hearing from Ankur/Cybermohalla: > Sharmila Bhagat (Ankur) > Shabana (Ankur) > Avantika (Ankur) > Shveta Sarda (Sarai/Cybermohalla) > > Note-taking by Shveta Sarda > > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > From lawrence at altlawforum.org Thu May 11 11:39:34 2006 From: lawrence at altlawforum.org (Lawrence Liang) Date: Thu, 11 May 2006 11:39:34 +0530 Subject: [Commons-Law] Re: Nangla/SC Proceedings/Notes/9th May 2006 In-Reply-To: <446194EA.2000103@sarai.net> Message-ID: Hi all A few thought on the notes made by Shveta on the SC proceedings on Nangla Maanchi, in addition to those made by Shuddha and others. Lawrence For far too long the contempt powers of the court have managed to stifle any critique of judicial pronouncements, and in the recent few months we have seen decisions which enable demolitions, whole scale destruction of Narmada Valley, regressive decisions allegedly for the protection of women etc. The new role of the court is one in which the judiciary has truly become the source for the determination of the 'state of exception'. It is perhaps time to rethink the idea of contempt of court, and like many other things a missing word here, a different emphasis of reading there, leads to very different consequences and makes all the difference. It might well be worth our while to think of contempt, not in terms of contempt of court but contempt of the court, because what stands out in the notes of the proceedings on Nangla Maanchi is the sheer contempt with which the judiciary is able to pronounce on the lives of people. The law of contempt attempts to protect the courts from any act that tends to lower its authority. That the court is in need of protection is course highly ironic, but it is perhaps not that ironic when we consider that it is usually the greatest despots who also have the greatest security arrangements. There is therefore a recognition in the law of contempt of the power of words and language, and its ability to cause harm. But what is this power of language to cause harm and is it equally distributed; if a person attempts to critique any action of the court through the "publication (whether by words, spoken or written or by signs, or by visible representation, or otherwise)", the damage to the court is seen to be irreparable. In a decision on contempt by a 'writer who drifted away from the path of literature into political criticism, the courts said that "This is no defense to say that as no actual damage has been done to the judiciary, the proceedings be dropped. The well-known proposition of law is that it punishes the archer as soon as the arrow is shot no matter if it misses to hit the target. The respondent is proved to have shot the arrow, intended to damage the institution of the judiciary and thereby weaken the faith of the public in general and if such an attempt is not prevented, disastrous consequences are likely to follow resulting in the destruction of rule of law, the expected norm of any civilised society". But even as children we learnt that words and stones can break my bones but words cannot hurt me. We know know that this is not true, and words indeed can hurt, but are do all words have the same force to be able to hurt, what are the special characteristics required of words for them to be able to hurt, and who indeed may utter contemptuous words with the ability to hurt? Robert Cover says that "Legal interpretation takes place in a field of pain and death. This is true in several senses. Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life. Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur. When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence. Neither legal interpretation nor the violence it occasions may be properly understood apart from one another Taken by itself, the word 'interpretation' may be misleading. 'Interpretation' suggests a social construction of an interpersonal reality through language. But pain and death have quite other implications. Indeed, pain and death destroy the world that 'interpretation' calls up. That one's ability to construct interpersonal realities is destroyed by death is obvious, but in this case, what is true of death is true of pain also, for pain destroys, among other things, language itself. For Cover, the power of language also emerges in its sharpest form when backed by sovereign authority so it is not any speech act that has the capacity to hurt, but those which emerge from a relational context of the utterer and the subject of enunciation. A lover¹s words have the capacity to hurt, but this hurt is qualitatively different from the hurt that the words of a court of law causes. My contempt for an individual or for an institution has therefore to be seen very differently from the contempt of the sovereign utterances of the court. If we were to then reconfigure contempt to recognize the question of power, and who has the power to actually practice contempt, then it seems that one of the prime candidates has to be the court. So that The Contempt of The Court emerges from speech acts which speculate on the fact that it will "never comfortable to live out", and that there will always be intense heat, or cold, or rainfall in the city. This attention to the various fragilities of a bare life accompanied the prospect of immediate violence and displacement constitutes an act of contempt that ³scandalises or tends to scandalise, or lowers or tends to lower the authority of people². When it observes that if public land is occupied, it will "have to be vacated", and that the right to shelter did not mean that "everyone be given shelter", it a contemptuous statement that ³interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner² and on these counts surely it is arguable that the power of contempt lies not only against the court, but equally by the courts. If I act in a manner that is contempt of another person, s/he may retaliate with an equal measure of contempt for me. But what happens when the court acts in contempt of people? Do we have the ability to retaliate with an equal measure of contempt? Ironically since your statement can land you in the dock, it could well be said that you do not actually have any power to retaliate against contempt of the court (atleast not one without unpleasant consequences). An area filled with people, lives and stories is narratively rendered useless in favour of Œuses that cannot be denied¹, the right to shelter does not mean that everyone must be given shelter and a right to free speech must be postponed for the sake of democracy. Welcome to the matrix that we call the constitution, in which rights and entitlements exist only within the matrix and for those who live in the reality of the Matrix. And well for the rest, welcome to the desert of the real. From shuddha at sarai.net Thu May 11 13:30:17 2006 From: shuddha at sarai.net (Shuddhabrata Sengupta) Date: Thu, 11 May 2006 13:30:17 +0530 Subject: [Commons-Law] Re: Nangla/SC Proceedings/Notes/9th May 2006 In-Reply-To: References: Message-ID: <4462EF11.30505@sarai.net> Thank you, Lawrence, for bringing us back into the desert of the real. driving down the ring road yesterday, just before you hit what used to be Nangla Machi on the left, I saw, arrayed on the railway bridge, and the under construction Metro Rail line, two hoardings, illuminated in neon backlit glory. One, advertised DLF, and the other Ansals (the very same who once brought you a raging inferno in technicolour, co-produced with the Delhi Vidyut Board, in a cinema, appropriately titled Uphaar, during the matinee show of a film appropriately titled 'Border). DLF and Ansals are both real estate, property and construction behemoths in Delhi and the National Caputal Region. (I love the term National Capital, because it so neatly dovetails 'National' with 'Capital', as it should). The signs leading up tp Nangla Machi, true signs of our times, promise more malls, luxury condominiums, hotels and other construction endeavours, promising, by implication, yet more of the grand re-fashioning of the National Capital that is underway today. There will in fact be no housing shortage, the signs seemed to suggest, provided you are the kind of person, the honourable Supreme Court has decreed as being fit to live in this city of inclement weather. I love those signs, just as much as I am awestruck in admiration of the Honourable Justices Pal and Katju, and the Supreme Court in general. Even before the dust (and fly ash) from the demolitions has settled, and there is another round to happen in 3 weeks time, the space of what once was the 'unauthorized, informal city' has been symbolically sealed and cordoned, re-claimed, if you like (in a different sense from the way in which the inhabitants of Nangla Machi 'reclaimed' a living neighbourhood out of a heap of fly ash) by these signs, courtesy, DLF and Ansals. I like the way the sings stake their claim, in a manner not unlike the way in which urban canines mark territory on lamp posts and car tyres. It is so befittingly urbane. And, speaking of contempt, I would plead that I have no contempt, only admiration for the institution of our judiciary, and this honorable bench in particular. Their wisdome strikes awe into our hearts, as it should. They have demonstrated, that just as the Indian Railways have many classes of coaches, first AC, first, second AC, three tier Second AC, 'ordinary' three tier, and general, or Janta class, so too, the engine of justice in our hallowed republic, pulls different kinds of coaches, first ac, second ac, all the way to Janta class. It is in the Janta class, in the unreserved category, that what Shahid Amin would call the city-jan (not to be confused with Citizen - see my last posting on 1857 on the Reader List) rides, in fits and starts. 'adjusting' (as one does in trains) to the time table, to the driver, to other passengers, to the ticket checker's contempt, to everyone, patiently, with stoic good humour, hoping for the occasional spell of pleasant weather in an otherwise unforgivingly hot and cold and dry and rainy country. best Shuddha From prashant at nalsartech.org Fri May 12 22:49:59 2006 From: prashant at nalsartech.org (Prashant Iyengar) Date: Fri, 12 May 2006 22:49:59 +0530 Subject: [Commons-Law] Patents (Amendment) Rules notified Message-ID: <20060512224959.kw4p2rc3d5wk4kog@www.nalsartech.org> http://www.hinduonnet.com/thehindu/thscrip/print.pl?file=2006051206391700.htm&date=2006/05/12/&prd=th& Copy of the Rules here: http://ipindia.nic.in/ipr/patent/patent_rules_2006.pdf NEW DELHI:The Union Government on Wednesday notified the Patents (Amendment) Rules 2006, in a bid to bring in more transparency, decentralisation of the functioning of patent offices and simplifying the procedures to make them user-friendly. According to Commerce and Industry Minister Kamal Nath, "the recent amendments to the Patents Rules represent yet another major step forward in India's endeavour to develop a vibrant and user-friendly intellectual property regime which would facilitate as well as encourage innovation and creativity" An official release says under the new rules, patent applications are now to be mandatorily published within one month after expiry of the statutory period of 18 months. In case of request for an early publication, the application is to be published within one month from the date of request. This step will introduce an element of certainty regarding the date of publication, it is stated. With a view to enforcing transparency and ensuring time bound disposal of patent applications, definitive timeframes have also been prescribed for various activities by the patent offices. A patent application now has to be referred to an examiner within one month of a request for its examination and the controller will be required to take a decision within one month of its submission. Further, the release says that the first Examination Report must be issued within six months of the date of request for examination of a patent. In order to make the system user-friendly, timelines available for applicants and the public have also been extended. Accordingly, the timeframe for making a request for examination has been extended from 36 to 48 months, while the time for filing a pre-grant opposition has been extended from three to six months. The time for filing reply to pre-grant opposition has been extended from one to three months and the time for meeting the requirements of the first examination report increased to 12 months. � Copyright 2000 - 2006 The Hindu From prashant at nalsartech.org Sat May 13 09:55:23 2006 From: prashant at nalsartech.org (Prashant Iyengar) Date: Sat, 13 May 2006 09:55:23 +0530 Subject: [Commons-Law] Patent Amendment rules Message-ID: <20060513095523.v72bfk82p42s48kk@www.nalsartech.org> Hi, The Department of Industrial Policy and Promotion (DIPP) website seems to have shut down since yesterday, so the link I sent yesterday will not work. Thanks to Mahesh Pai for pointing this out to me. Thankfully the rules may also be accessed at the Patent Office website, http://patentoffice.nic.in/ipr/patent/patent_rules_2006.pdf Regards, Prashant From the.solipsist at gmail.com Sun May 14 20:26:14 2006 From: the.solipsist at gmail.com (sol) Date: Sun, 14 May 2006 20:26:14 +0530 Subject: [Commons-Law] Gilead and HIV/Aids treatment Message-ID: <4785f1e20605140756i4f2bed28h282e4088f6a75be@mail.gmail.com> Dear All, from the FT: http://news.ft.com/cms/s/694ee44a-e043-11da-9e82-0000779e2340.html Indians march on parliament over Aids drug patent By Andrew Jack and Jo Johnson in New Delhi Published: May 10 2006 17:45 | Last updated: May 10 2006 17:45 Hundreds of people affected by HIV/Aids on Wednesday marched on the Indian parliament to support a legal challenge to a patent application on a key anti- retroviral drug made by US pharmaceutical group Gilead Sciences. The Indian Network for People Living with HIV/AIDS and the Delhi Network of Positive People this week registered a pre-grant opposition to the patenting of tenofovir disoproxil fumarate (Viread), an important second-generation treatment. The challenge will test the Indian patent regime put in place last year, and comes after Roche announced in March that it had become the first drugs company since 1972 to receive a product patent in India. India's importance goes far beyond drug access for its own population since it is a high-volume, low-cost centre for the production and export of drugs for much of the developing world, undercutting western branded medicines it has copied. India, dealing with a backlog of 7,000-9,000 applications in the patent "mailbox", faces the prospect of years of intellectual property litigation pitting multinational drugs groups against Indian generic manufacturers and NGOs. "We have reached a critical stage because many patent applications are now under review or about to be granted, a process which will have a massive impact on people's lives," said Johannes van de Weerd, a director of Médecins Sans Frontières. Chanting "We want tenofovir" and wearing t-shirts blazoned with the words "HIV positive", the New Delhi protesters drew stares from passersby. NGOs say India is still largely in denial about an epidemic affecting more than 5m people. Lawyers advising the NGOs say the patent office should reject Gilead's application on the grounds that the Californian group is trying to patent a new form of a pre-existing drug without evidence of enhanced therapeutic efficacy. Indian pharmaceutical companies, such as Cipla, have developed a low-cost generic version of tenofovir, priced in India at a seventh of international levels, and would be likely to have to cease production or pay steep royalties if a patent was granted. [Cipla, one of the largest generic companies in India, is marketing a version called Tenvir, at a cost of $700 per person per year in India. Yusuf Hamied, chairman of Cipla, said the drug would eventually be made available in Africa for about half that price. -NYT] Yusuf Hamied, chairman of Cipla, said the company had also filed a pre-grant opposition to the patent application, arguing that tenofovir was "known" prior to 1995, the cut-off date for patent protection under the new law. "At least 5,000 of the 7,000-9,000 applications filed in the mailbox over the years do not conform with the Indian patent law as passed in 2005," he said in an interview. "I urge big pharma to withdraw them to avoid frivolous litigation." In January the Indian patent office rejected a patent application filed by Novartis for its anti-cancer drug Gleevac in response to a pre-grant opposition filed by the Cancer Patient Aid Association. In a move designed to foster self-sufficiency in drug production, India in 1972 repealed colonial-era patent laws and only allowed patents on the manufacturing process used to produce pharmaceuticals, not on the products themselves. The NGOs claim a tenofovir patent would push up the cost of the treatment beyond the reach of national AIDS budgets and further delay the achievement of the World Health Organisation's goal of bringing antiretroviral drugs to 3m people. In March, the WHO announced the programme had fallen short of its end-2005 target, with the number on HIV antiretroviral treatment in low- and middle-income countries reaching 1.3m, compared with 400,000 in December 2003. "It's a matter of life and death," said Loon Gangte, president of the Delhi Network of Positive People. "At any moment I'll be developing resistance to my existing treatment and will be needing the next line of treatment in the form of tenofovir." Gilead has been criticised for the slow implementation of its 2002 pledge to make the drug available cheaply in 97 least developed countries through its "access" programme. The drug has so far been approved for use in only 11 of the countries. MSF claims Gilead has not offered to sell tenofovir at the discounted price of $208 (€162, £111) per patient each year in fast-growing developing countries such as China, Brazil, Thailand and India. In developed countries, MSF says Gilead charges $5,718. Amy Flood, Gilead spokeswoman, said the group was studying ways to make tenofovir available in countries other than those classified as least developed and that the decision to supply at cost would be based on income level and disease incidence. Gilead had filed for registration in a further 50 countries and hoped to have filed in all 97 by the end of this year. It estimated cut-price tenofovir through its access programmes was treating about 20,000 patients worldwide at the end of 2005. -Pranesh -- ______________ ------------ We are unhappy married, and unhappy unmarried. We are unhappy when alone, and unhappy in society: we are like hedge-hogs clustering together for warmth, uncomfortable when too closely packed, and yet miserable when kept apart. It is all very funny... the life of every individual is really always a tragedy; but gone through it in detail it has the character of a comedy. --Arthur Schopenhauer [1788 - 1860], German philosopher ------------ ______________ ô¿ô¬ -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20060514/56b58883/attachment.html From seth.johnson at RealMeasures.dyndns.org Tue May 16 06:34:38 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Mon, 15 May 2006 21:04:38 -0400 Subject: [Commons-Law] Berninger: If It's Not Neutral, It's Not Internet Message-ID: <44692526.DE6B17BB@RealMeasures.dyndns.org> > http://www.danielberninger.com/dbessays/2006/05/if-its-not-neutral-its-not-internet.html Monday, May 15, 2006 If it's not neutral it's not Internet By Daniel Berninger, VP, Sr Analyst, Tier1 Research, dan at tier1research.com Definition: Internet - collection of all networks that choose to beinterconnected by standard Internet Transport Protocol(s). (Reference: David P. Reed, http://www.reed.com) The success of a proposal by AT&T and Verizon to end net neutrality does not threaten the Internet. The broadband customers of AT&T and Verizon willjust no longer have access to the Internet. The development appropriatelycreates alarm among AT&T and Verizon's customers, but the combined customerbases of these companies represent less than 2% of the billion or so usersof the Internet. The fact access to the Internet requires net neutralitydoes not depend on laws passed by the US Congress or enforced by the FCC.Neutrality arises as a technical and business imperative facilitating the interconnection 250,000 independent networks that choose to participate inthe Internet. Net neutrailty will remain a requirement as long as it servesthe interests of the global Internet community. Nothing stops AT&T and Verizon proceeding with their non-neutral networks. They just can't label their offers Internet access. We call non-neutralnetworks - private networks. There already exists a market for privateconnectivity serving needs not addressed by the public Internet. AT&T andVerizon can pitch their various ideas about quality of service to the providers of commercial Internet content like Google as well as their respective end user customers. AT&T and Verizon already have a portfolio ofprivate network offers only the attempt to frame them as some sort of "enhanced" Internet access is new. Selling private networks as Internet access amounts to false advertising of the type prosecuted by state AG's and the FTC. The Federal Trade CommissionAct requires advertising be truthful and non-deceptive. Advertisers musthave evidence to back up their claims. The difference in the number ofavailable end points makes it easy to distinguish between private networks and the Internet. Calling a service Internet access means providing fullconnectivity. The continuously expanding Internet presently reaches about400 million computers even before considering end user devices. AT&T and Verizon may believe the owners of these computers should pay a toll for theprivilege of reaching end users, but they still need to demonstratesufficient value to justify these tolls. Any attempt at enforcement ofgatekeeper status will inevitably leave their customers with limited connectivity to large swaths of the Internet not unlike people stuck behind the Great Firewall of China. The present attempt to unwind Internet neutrality represents just the latest (and unlikely the last) of ongoing efforts by telephone companies to defend legacy revenue streams. AT&T resisted interconnection of the 56k modems associated with the original Internet links in the 1960's until the arrival of intervention by the Department of Defense. The Bells complained bitterly (all the way to the bank) about modem traffic associated with the dial-up Internet in the 1990's. The Bells resisted offering DSL and then worked to undermine the independent companies like Northpoint and Covad that tried to deploy the service. Efforts to derail municipal broadband initiatives andnow net neutrality all fit the same pattern. Claim rules leave no incentive to invest. Win regulatory concessions against competitive threats. Repeat. Hint: Incentive to invest = monopoly market power in Bellco speak. These longstanding efforts have not achieved the goals of derailing the Internet or producing prosperity for the Bells, but they did manage to slow progress enough to allow a dozen countries pass the US in Internet penetration rates. The resolution of the policy issues in the net neutrality debate will determine the extent to which the US enjoys the benefits of the Internet, but the Internet as a global phenomena will proceed with or without the permission of the Bells, the US Congress, or the FCC. The Internet certainly suffers from a range of maladies, but only companies with large at risk legacy revenue streams see the solution as discrimination by use and user. Network infrastructure companies like Cogent, Earthlink, Abovenet, Savvis, and Global Crossing accept neutrality as fundamental to the health of the Internet. There exist a number of forums for the Bells to pitch the merits of their ideas for improving the Internet. The fact they plan to proceed on a unilateral basis demanding a ransom for their customers reveals their true agenda. The customers of AT&T and Verizon did not ask to get cut off from the Internet. Only the lack of alternatives (aka monopoly) will prevent a customer exodus with the loss of net neutrality. There exist no examples of success with the "walled garden" approach, because the nothing can match the breadth of content and innovation of capacity of the public Internet. The decoupling of connectivity from use and user associated with neutrality makes this breadth of content and innovation possible. The opposition to net neutrality arises like all regulatory debates as the means to raise prices, but people in the US already pay more for less bandwidth than citizens of Europe and Asia. Communication serves as aninput to all economic activity, so expensive communications drags on the economy in the same way as high energy prices. Policy makers must decide between protecting the Bells 20th century business model or working to make sure US enjoys the benefits of the Internet. Internet traffic outside the US already dwarfs the traffic from within the US, and the failure of policymakers to defend net neutrality will only continue the trend of the US toward third world status in connectivity. posted by Daniel at 5:39 AM From seth.johnson at RealMeasures.dyndns.org Wed May 17 06:01:55 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Tue, 16 May 2006 20:31:55 -0400 Subject: [Commons-Law] Copy/South Dossier: Economics, Politics, and Ideology of Copyright in the Global South Message-ID: <446A6EFB.E12A7E08@RealMeasures.dyndns.org> (Long report. Table of Contents and Introduction pasted below. -- Seth) -------- Original Message -------- Subject: [UBMLS-L] PRESS RELEASE: THE COPY/SOUTH DOSSIER: Issues in the economics, politics, and ideology of copyright in the global South. Date: Tue, 16 May 2006 16:38:50 -0700 From: Zapopan Martin Muela-Meza To: UBMLS-L at LISTSERV.BUFFALO.EDU PRESS RELEASE: 17 May 2006 THE COPY/SOUTH DOSSIER Issues in the economics, politics, and ideology of copyright in the global South. Researched and published by the Copy/South Research Group May 2006 ISBN: 978-0-9553140-1-8 (printed edition) Not restricted by copyright OVERVIEW: The aim of the dossier is to open up debate on the real impact of copyright laws affecting the people of the more than 150 developing countries in the Global South, many of whom have never read a book, have no access to the Internet and are facing an indeterminate future. The dossier highlights issues that are not only unique to the Global South, but also focuses on those issues that affect both sides of the North - South divide. This dossier is addressed to the general public, researchers, educators, librarians, activists, and organizations concerned about access to knowledge who want to learn more about the global role of copyright and, in particular, copyright's largely negative role in developing countries of the global South. In more than 50 articles totalling 215 pages, we, in the Copy/South Research Group, who have researched and debated these issues over the past 12 months, have tried to critically analyse and assess a wide range of copyright-related issues that impact on the daily lives (and future lives) of those who live in the global South. BACKGROUND: How did the Copy/South dossier come into being? A first and draft version was prepared for a four-day intensive workshop held in August 2005 at the University of Kent in the United Kingdom and organised by the Copy/South Research Group. Of the 22 people who attended this 'by invitation only' session, more than 15 were from countries of the South. At this lively and very informative session, the draft dossier was subjected to some sharp criticisms; numerous suggestions for improvement were made, and additional articles and research angles proposed. A second version was circulated internally in January 2006. Further changes were made and this third version is the public version. It is a work of North/South collaboration, a product of the sharing of knowledge. TO GET A COPY OF THE DOSSIER: The dossier is being distributed for free. Go to the Copy/South website , download the dossier, and print it off yourself. It is available in various formats (PDF and RTF) and in files of various lengths to accommodate various download capacities. Alternatively, contact us by e-mail , and we can post you a copy of the dossier, either as a printed copy or as a CD. CONTACT: If you wish to contact The Copy/South Research Group for any reason -- for example, to make criticisms of the dossier, to give your own examples, to join in the future research effort -- our e-mail address is: . FINANCIAL SUPPORTERS OF THE C/S RESEARCH GROUP: 1)The Open Society Institute, Budapest, Hungary; 2) HIVOS,The Hague,The Netherlands; 3)The Research Fund of Kent Law School, Canterbury, Kent UK. COPY/SOUTH RESEARCH GROUP 17 May 2006 http://www.copysouth.org "Whether you're soar away Sun or BBC 1 Misinformation is a weapon of mass destruction" -- Faithless, "Mass destruction" --- CONTENTS SOME INITIAL WORDS INTRODUCTION SECTION 1 - THE GLOBAL INTELLECTUAL PROPERTY SYSTEM IS PRIVATISING HUMANITY’S COMMON CULTURAL HERITAGE 1.1 Introduction 1.2 How privatisation and monopolisation discourage creativity and invention 1.3 Why this tendency is against the interests of creators and society in general 1.4 Monopoly ownership and its consequences for artistic expression 1.5 Average artists and conglomerates cannot benefit from the same copyright system SECTION 2 - THE ECONOMICS OF GLOBAL COPYRIGHT: THE NET CAPITAL FLOW FROM THE GLOBAL PERIPHERY TO THE CENTRE 2.1 Introduction 2.2 Calculating copyright-related capital flows from the global periphery to the centre 2.3 From TRIPS to TRAP: Free Trade Agreements and copyright 2.4 Reprographic collecting societies and their projected growth in the South 2.5 How much of this capital flow is related to copyright? 2.6 How ‘national treatment’ increases the net outflow of capital from the South SECTION 3 - PRIVATISING THE PUBLIC DOMAIN AND IMPOSING WESTERN/NORTHERN ASSUMPTIONS ABOUT CULTURAL PRODUCTION 3.1 Introduction 3.2 The basic values and ideology of copyright 3.3 The differing traditions of cultural creation in the South 3.4 Culture and creativity in the Arab countries 3.5 Traditional/indigenous knowledge and copyright: a complex issue. 3.6 The criminalisation of copying in the South and the ‘piracy’ question 3.7 The privatisation of common culture proceeds in the South, at a quickening pace. 3.8 Western cultural conglomerates and the global marketing of culture from the global South 3.9 The role of the World Intellectual Property Organisation in spreading the copyright system and its narratives to countries of the South SECTION 4 - SERIOUS AND DAMAGING BARRIERS TO THE USE OF COPYRIGHTED MATERIALS IN COUNTRIES OF THE SOUTH 4.1 Introduction 4.2 Extending copyright terms extends privatisation 4.3 Distance learners kept from study materials: experiences from Kenya 4.4 How copyright hinders librarians in providing services to library users 4.5 Copyright laws add to other restrictions on learning in rural South Africa: an October 2005 survey from Mpumalanga 4.6 Copyright gets in the way when teachers want to provide student course & study packs 4.7 An academic from Colombia tries hard to do his research with great difficulty 4.8 Using the Internet in the South: a tangled web of copyright toll-gates and “keep out” messages 4.9 Using intellectual property laws to prop up proprietary computer software 4.10 The visually impaired in the South: shut out of reading by copyright roadblocks 4.11 How copyright presumptions trump translation possibilities and limit the sharing of knowledge 4.12 Three legal questions related to access 4.13 Copyright and cultural domination by the North: a long-standing conflict that is getting sharper SECTION 5 - RESISTANCE FROM THE SOUTH TO THE GLOBAL COPYRIGHT SYSTEM 5.1 Introduction 5.2 A brief history of Southern resistance to copyright’s laws and assumptions 5.3 National or regional movements opposing TRIPS as interference in their cultural life 5.4 Venezuela initiative on the rights of authors 5.5 Resisting the privatisation of cultural life 5.6 Possible alternatives to copyright in the South 5.7 The A2K (Access to Knowledge) treaty group 5.8 Free software: a viable and cheaper alternative 5.9 The Creative Commons approach 5.10 The Canto Livre example from Brazil 5.11 Open access journals and open archiving initiatives 5.12 Co-ordinating activities across the South 5.13 Satire and art as resistance 5.14 Co-operation in the South as part of wider intellectual property activism SECTION 6 - CONCLUDING THE DOSSIER AND LOOKING AHEAD 6.1 Some closing words 6.2 Glossary of fifty copyright terms, phrases, and copyright-related organisations which are used in the Copy/South Dossier Index of the C/S Dossier --- INTRODUCTION To introduce the Copy/South project and this dossier, one must first introduce the concept of copyright. Copyright has a long history emerging from 18th century English law. Generally speaking, it is a legal regime that provides a limited form of monopoly protection for written and creative works fixed in a tangible (material) form. The owner of the copyright is given the exclusive or sole right to do a number of things with that work such as the following: a) to make copies of the work, for example, by photocopying it, b) to perform the work, such as a play, c) to translate the work into another language, d) to display it publicly, such as using a photograph in a magazine. And to break these property-like restrictions is copyright infringement. While originally focused upon written work, copyright has been extended and expanded over the years to include maps, artwork, music, phonographic records (and later audio tapes and now CDs), photographs, and, most recently, computer software and data bases. Copyright protects the specific expression of an idea, not the idea itself, and the law - in some, though not all, countries - allows limited ‘fair use’ or ‘fair dealing’ by users of works in which the copyright is owned or held by others. Today, the law protects (and restricts) a copyrighted work for the life of the author plus fifty years in some countries or plus seventy years in others - notably in Europe and the United States where most copyrighted works are produced - or even longer in a few countries. It is relatively rare, however, for an author to retain rights to creative works; usually these rights are transferred (the legal word is ‘assigned’) to a publisher or record producer in exchange for publication, royalties or a flat fee. (In the case of employees who create copyrighted works, their employer owns the copyright in most cases.) The 1960’s UK rock group The Beatles did not, for example, own copyright in the songs they wrote, performed, and recorded. While originating in 18th century European law, copyright law has become international in scope. Yet, in many ways, copyright has always been an international issue. When copyright owners (as distinct from authors) in the 18th and 19th centuries were demanding protection for their work, the threat to copyright control often came from booksellers publishing cheap editions for a foreign market or importing cheap editions from abroad to compete in the domestic market. It is now conventional wisdom to acknowledge that the United States was one of the worst copyright ‘pirates’ in the 19th century when it was a developing country. (The US government refused to extend copyright protection to foreign works, thereby creating a domestic market in cheap reprints of popular titles.) The creation and adoption of the European-’inspired’ Berne Convention in 1886, which remains the leading international copyright agreement, further illustrates the importance of international protection of copyright from the 19th century forward. It is also conventional wisdom that the ‘information age’ has fundamentally transformed the scope and intensity of international copyright battles. While the history of copyright is the history of copyright expansion, computer technology has radically altered the balance between copyright owners and knowledge users. First, the ease with which digital material can be copied and distributed through ‘pirate’ channels has increased dramatically. Second, and perhaps more importantly, everyday consumers and users of copyrighted works are now defined as ‘pirates’ and ‘thieves’ as they go about sharing information, music, entertainment, and other materials found on the Internet. (It does need to be emphasised, however, that many parts of the global South - and many who live here - are not ‘plugged into’ the Internet as they lack computers, reliable phone lines, and electrical connectivity.) These two trends help highlight the stark differences between a culture of sharing and a culture of monopolisation and privatisation. As long-time Philippines activist Roberto Verzola explained at the Copy/South workshop (mentioned above in ‘Some initial words ’) there are two main competing value systems in the world and, in the current era, “the value system of monopolisation, corporatisation, and privatisation is being imposed on what I think is a better system, a system of sharing.” As the economy continues to globalise and as we become further dependent upon computer technology and need information exchange ever more urgently, copyright and its assumptions have moved from a marginal place in economic and development theory to a relatively central place. The fact that copyright owners, represented by the software, music, movie, and publishing industries, have been lobbying for stricter copyright control is not new. But the past few decades have been marked by a remarkable expansion of copyright laws. Perhaps the most significant victories for these copyright owners was the successful negotiation and establishment of the Agreement on Trade-Related Aspects of Intellectual Property Agreement (TRIPS), which all countries seeking to become part of the World Trade Organization were and are required to sign. When TRIPS was negotiated and came into force in 1995, it did so with considerable resistance from the global South, led by India and Brazil. From the start, it was clear to many that the TRIPS Agreement would primarily benefit already developed Northern countries far more than those in the global South. It is the multinationals of the North who already own the overwhelming percentage of global intellectual property rights (copyright, patents, trade marks and other types); the creation, expansion, and stricter enforcement of property rights, including intellectual property rights, overwhelmingly benefits those already owning property. Moreover, given that intellectual property rights extend far into the future - for example, some copyright works created in 2006 will still be under copyright in 2106 and will still be bringing in revenue - agreements such as TRIPS serve to reinforce patterns of wealth and inequality that will, if we do not create a counter movement, be a burden on the backs of several future generations, including those in the South. Ten years have passed since TRIPS became reality. Copyright has only increased in importance over the past ten years and the pressure to enact and enforce laws as tough as or tougher than the United States continues to mount. In fact, the US was not satisfied with the level of protection in the TRIPS agreement and has continued bilateral negotiations with many countries on all other continents to create what has come to be called ‘TRIPS plus’ treaties. The more common name for such treaties is ‘free trade agreements’; they follow a hypocritical (and contradictory) agenda of purporting to promote ‘freer trade’ in monopolised goods such as patented pharmaceuticals and Hollywood blockbusters. We ask, “how much ‘free trade’ in Nigerian or Cuban or Chinese films occurs within the US or Europe?” So it will be argued here that TRIPS and its component parts, such as the Berne Convention, have simply reproduced the types of economic inequalities associated with the earliest stages of colonialism and imperialism. This dossier seeks to provide backing to the argument that copyright laws imposed upon the global South have had, and will continue to have, a negative impact. The document is designed to provide an introductory and broad analysis of the issues associated with copyright for the global South. It also seeks to highlight some of the controversies surrounding copyright law. As mentioned in the preface, the global South does not have a monolithic approach to copyright. What we seek to do in the following pages is provide a critical assessment of copyright and its impact on the global South, keeping the issues of both access to knowledge and the protection of local cultures and cultural diversity at the forefront. The dossier is divided into five main sections, which we called ‘research propositions’ when we began this research in 2004. The first section/ proposition looks generally at the impact of copyright on culture and seeks to highlight the unstated assumptions behind the copyright paradigm or model. The argument in this section is that the privatisation of culture through copyright is not beneficial. Rather, such privatisation fundamentally transforms our relationship to culture and centralises its ownership in the hands of corporate powers, often not even associated with the local culture. We address issues related to privatisation, the threat of ‘propertisation’ to the creative process, and the role of corporate culture in the ownership of copyrights. The second section looks at the political economy of copyright and examines the issue from an economic perspective. Here, we argue that the global South is not the economic beneficiary of international copyright laws. Rather, the countries where more than three quarters of the world’s population resides are expected to join, without complaint or criticism, a global economy which, on the one hand, offers increased protection to Northern-owned copyrights in the global South and hence greater South-North revenue flows, while, on the other hand, continues to siphon ‘marketable’ materials from the global South for the profit of corporations in the global North. In other words, a very unequal exchange. Specifically, we look at examples of capital flow through collecting societies, the role of free trade agreements, and the economic effects, in practice, of the concept ‘national treatment.’ The third section looks specifically at the impact of the copyright system, as a western construction, on the public domain and on many long-standing cultural practices and forms across the South. In recent years, the concept of the public domain has received theoretical attention and has taken on new meaning in a world suffering from increased privatisation. This section develops an argument regarding the benefits of the public domain, especially in the context of regions and countries such as the Arab world, Indonesia, or the Indian sub-continent where important cultural forms such as music and story-telling have very different traditions from those existing in France or Germany. Of specific interest here are the questions of so-called copyright ‘piracy’ and the relationship between the public domain and what is called ‘traditional knowledge’ and the ways in which copyright issues impact on indigenous communities. The fourth section seeks to develop the argument that the barriers created by copyright are damaging to access to knowledge by the global South. While the global North remains intent upon protecting what it sees as its ‘private property’, those in the global South continue to seek access to basic knowledge in order to improve the conditions of those living in poverty and sub-standard conditions. This section investigates barriers established to limit access to knowledge by a range of people in a range of situations: students, teachers, the visually impaired, the illiterate, the general public, in libraries, in universities, on the Internet, on their computers. And we also ask the question: precisely what ‘knowledge’ should be available? The final section of the dossier looks to the resistance that is emerging against copyright. Resistance to copyright by the global South was an integral part of the TRIPS negotiations. Despite this resistance, the global South was unsuccessful in substantially changing TRIPS. However, in the ten years since TRIPS was signed, the issues and contradictions of copyright (and patents, which are not the subject of this dossier) have taken on a higher profile and people throughout the global South (and the global North) have begun to actively resist the imposition of strong copyright laws as well as begin to reconfigure the law - and appropriate it for their own purposes. We believe that a focus on the global South has been too long ignored in discussions of copyright; this dossier seeks to remedy this situation. The argument made by developed countries is that copyright is supposedly good for their economies so it must be good for everyone in the world. However, a ‘one-size fits all’ approach is detrimental to many. It is important to recognize that many countries in the global South face poverty so severe that copyright protection is (or should be) far from an important item on their political agendas. Rather, literacy and education, poverty reduction, access to clean water and affordable food, and a variety of other needs are all more important than protecting the TRIPS-established property rights of foreign companies. At the same time, the dossier seeks to remain sensitive to the differences between countries in the global South, where some countries have fundamentally different priorities than others. For example, while Argentina has a wonderfully vibrant free software movement seeking to extend access to information technology via free software, most people in Kenya do not even have access to a phone and Internet access is well beyond range. Or, as several participants at the Copy/South workshop from Brazil noted, the technology revolution in Brazil will not be based upon computers (desktops or laptops), but on cell phones where everything from text messages to MP3s are exchanged. This leapfrogging of technological services is in stark contrast to the situation on the ground in Zambia where almost 2/3 of the state’s budget is funded by foreign sources. Thus, the similarities as well as the differences between the many countries from the global South must be recognized. Ultimately, this dossier seeks to provide an avenue into the serious discussions that must be held regarding copyright and development at the global level. We consistently look at copyright as a western idea being imposed on the global South. However, it is also time to look at the innovation coming from the global South as a model for transforming all cultures. Furthermore, it is time to develop deeper and stronger connections between activists in the global North interested in critiquing copyright laws and those in the global South seeking the same goals. The Copy/South project and this dossier are part of what we hope will become a larger and more complex network of actors. We cannot promise and do not deliver a unified theory or single solution. Rather, what we seek to do is place a light on the global South and the problems copyright has wrought in order to not simply critique the system, but also to open the doors towards a transformation of the system at a global level. From k.ravisrinivas at gmail.com Wed May 17 16:38:33 2006 From: k.ravisrinivas at gmail.com (ravi srinivas) Date: Wed, 17 May 2006 16:38:33 +0530 Subject: [Commons-Law] Monsanto,MRTPC and monopoly Message-ID: http://www.hindu.com/2006/05/17/stories/2006051704861400.htm New Delhi: Mahyco Monsanto Biotech-India Ltd. has moved the Supreme Court against a temporary order passed by the Monopolies and Restrictive Trade Practices Commission (MRTPC) restraining it from charging Rs. 900 for a packet of 450 gm of Bt cottonseed. Monsanto, a U.S.-based company formed a joint venture with Mahyco, a seed company trading in India, and formed the Mahyco Monsanto Biotech-India Ltd. and this company had entered into agreements with several companies for selling Bt cotton. Acting on an application filed by the Andhra Pradesh Government, the Commission, in its May 11 order, had directed the company not to charge trait value of Rs. 900 per packet of 450 gm of Bt cottonseeds from farmers in India during the pendency of the proceedings. Questions jurisdiction Assailing this order, Mahyco, in its appeal, said the Commission had no jurisdiction to adjudicate on the issue because "licensing of technology does not fall under the classification of goods or services." It said that the agreement between the appellant and sub licensees related to technology and know-how transfer and and there was no trade in goods. The company pointed out that it was not dealing with any goods. The trait value/royalty was being charged not for sale of any goods but on account of transfer of know-how and technology to the sub licensees, which they further incorporated into their own seeds. The term royalty could not be applied since there was no patent of the technology of the appellant in India. It maintained that there was no provision in law that the inventor of a new and useful product could not allow a person to use his product on payment of a fee for such use, regardless of the fact whether the inventor held a patent under the Indian law or not. Further there was no rule or guideline to determine the prices that a technology provider could charge from its sub licensees. ----------------------------------------------------------------------------------------------------------------------------------------------------------------------- Such an argument from Monsanto was not unexpected. It claims that there was no trade in goods.In one sense but the seeds are physical entities that embody the trait.The trait is not an abstract entity or just an idea that could be reproduced.Monsanto has no patent in India on this technology.Idont know whether they have protected the germplasm under trade secrets. On the other hand Monsanto has blocked imports of GM soya from Argentina into Europe where it has patents on GM soya, but it does not have patents on the same in Argentina. It claims that such exports, irrespective of proposed use, are infringments. How does one assess the economic value of trait and the value of the trait for the farmers. In the absence of a patent what exactly are the rights of Monsanto in India. The term 'rights of the inventor' sound too broad and unclear. If some one uses this technology without permission or license from Monsanto , in the absence of a patent, will that amount to infringment. What is the legal position in India. ravi srinivas -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20060517/75280efc/attachment.html From shuddha at sarai.net Fri May 19 21:25:01 2006 From: shuddha at sarai.net (Shuddhabrata Sengupta) Date: Fri, 19 May 2006 21:25:01 +0530 Subject: [Commons-Law] Sensor-Census-Censor : Call for Abstracts Message-ID: <446DEA55.1040702@sarai.net> SENSOR-CENSUS-CENSOR : Investigating Circuits of Information, Registering Changes of State An International Colloquium on Information, Society, History and Politics New Delhi, 27, 28 & 29 November 2006 (Apologies for Cross Posting) SENSOR-CENSUS-CENSOR : Investigating Circuits of Information, Registering Changes of State is an International Colloquium on Information, Society. Politics and History that will critically examine and investigate regimes and technologies of information harvesting, management, circulation and deployment as they have developed in India and Europe from early modernity till today. The colloquium, organized by the Sarai Programme at CSDS, Delhi, in collaboration with the Waag Society, Amsterdam, under the rubric of the network titled 'Towards a Culture of Open Networks', invites scholars, theorists, researchers and practitioners working in the areas of history, political economy, political theory, philosophy, culture and technology studies as well as artists, writers and media practitioners based in India and/or Europe to submit proposals for papers and presentations that they would like to make at the colloquium. SENSOR-CENSUS-CENSOR will take place in the last week of November 2006 in Delhi. Please see below for a concept outline describing the themes and concerns animating the colloquium. ---------------------------------------------------------------------------------------------------------------- Information, Society, Politics, History Information is a crucial axis of political, economic and social life. The nature of information practices in contemporary societies are marked by a radical dispersal. This dispersal does not replace, earlier centralizing modes of gathering information, but stands alongside it. The basis of governance, in all its capillary forms and at all levels, from the level of the neighbourhood or the workplace to that of city, district, province, and the nation, and continuing even at the level of the relationship between persons (as citizens and non citizens) and different nations, and between nations themselves, can continue to be analysed in terms of the management of information. In fact, we can locate the analysis of information in society, history and politics along the lines of tension between centralization and dispersal. At the core of this axial reality lies a conceptual and a categorical distinction between what is seen to be a member of a population - an entity that needs to be governed, and the far more valuable category of the citizen - a subject (with sentience and volition) who participates in that governance. The recognition of subjectivity (a sensory operation, involving an awareness of the change of state that involves the transition from a silent, or incoherent statistic to a speaking, sentient being) is what can be seen to lie at the heart of politics. It can be seen as a pre-condition of the political. The harnessing and treatment of information creates the conditions by which persons and citizens, a population and a citizenry, a person and a consumer, a network of needs and a market, an identity and a demographic can be invoked in varied and complex ways by the state, quasi state agencies of social governance, as well as by local and global economic forces. This activity seems to be lever for mechanisms that have to do with the identification, policing, mechanisms of appeal and redress, moral order, taxation, the disbursement of welfare, the discrimination between citizens and others, and between different kinds of citizens. Such information gathering, in order to be rendered useful, has to be activated through territorial surveys and census forms, public and private archives, documents and databases, reports and records, surveillance cameras and electronic filters, informers and informants, fingerprints and biometrics, photographs and recordings and a host of other technologies, methods and practices register the changes of state that occur in societies. These instruments and processes are so general in modern societies as to be part of the banal fabric of everyday life, especially in urban spaces. Inspite of their generality, the circuits that solder information to power and established ways of doing things are constantly being hacked into. These quotidian episodes of information disruption, of unauthorised circulation and reproduction of information and a range of other transgressive information practices, can be seen to punctuate a chronicle of progress and order at crucial junctures. There is persistent trouble in the archives. This colloquium is an attempt to inaugurate a body of reflection and research on information, society, history and politics within the ambit of the Sarai Programme at the Centre for the Study of Developing Societies, and raise the profile of questions about information in discourse in South Asia. The key questions that the colloquium will address are as follows : Key Questions and Themes Does the nature and purpose of information gathering undergo a transformation as we move away from relatively stable social and political formations to more contingent situations and domains globally? How does the role of the 'expert' stand in relation to new kinds of politics, based on contingent alliances? Is there an excess of information - in markets, in politics, in society? What is the relationship between discourses of information and discourses of risk, security and safety? What does information lose or gain in translation across languages and contexts? What for instance happens when databases generated for one purpose is linked to another. What happens when information crosses borders? What happens when information is deployed at a scale very different from the scale of the context in which it was generated? How were methods of identification and information gathering experimented with and developed in India and other colonies and then perfected and deployed in Europe in the context of colonialism? Can we build maps of the traffic in the knowledge of power across the circuits of empire, which takes in the work of archivists and historians, museum curators and judges, the testimonies of informants and approvers, as much as it includes the activities of administrators, surveyors, anthropologists and policemen, requires to be elaborated and detailed.? How have the introduction of new information technologies, such as the telegraph, photography, telephones, sound recording, video, computers and the internet changed the course of information gathering, control and circulation? What implications have they had politically, how have they impacted on the political economy of information? How have these technologies been used to subvert, challenge or erode the operations of power? How does the unauthorised circulation and reproduction of information resources, piracy, copy culture, samizdat and other forms of transgressive information practice, affect the balance of power of information in any society? How do different political systems deal with the management of information? What for instance is the relationship between the parallel histories of computing in the former Soviet Union and the Eastern Bloc and the demands of state action in these societies? How can historians re-think silences and absences in the archives? Can we construct alternative histories of archives and archiving? What status do archives of popular and social movements, personal collections and other attempts at restoring the memory of events and processes that have been deliberately obscured have in relation to the knowledge gathering activities of the state, and of power generally? How can political theorists examine the relationships between populations, citizens, information and utterance to yield different models of complex political realities? What implications do the contemporary (and projected) operations of biometric technologies, internet filtering systems, networked surveillance and data retrieval and outsourcing systems have for social and political life today and in the near future? The rhetoric of 'Information society' with its ideological commitment to notions of 'e-governance' and 'e-citizenship' and 'ICT in development' conveniently obscures both older continuities and inequities as well as recent parallels between the politics of different kinds of information regimes as they stretch between India /Asia and Europe. What kinds of correspondences and crossovers between new and old practices of information can we locate and identify? ---------------------------------------------------------------------------------------------------------------- Abstract Submission Details and Requirements We invite scholars, researchers and practitioners to respond to this call by sending in abstracts (not more than 500 words) of presentations that they would like to make, along with a brief profile about themselves, including details of institutional affiliation (where relevant). Limited support for travel and accommodation for presenters (only from Europe and the South Asian subcontinent) is available. Please indicate whether you would like to avail of this support, or can raise your own resources to participate in the colloquium. Applicants from the United States, Canada, Africa, Australia, Asia (barring South Asia) are advised to generate their own resources (travel and accommodation) for participating in the colloquium. Last date for the submission of abstracts : 20th July, 2006 Contributors will be informed about abstracts selected for presentation by August 15, 2006 send in your abstracts to : infosoc at sarai.net ---------------------------------------------------------------------------------------------------------------- The 'SENSOR - CENSUS - CENSOR' colloquium will be produced with the financial assistance of the European Union's EU-India Cross Cultural Project,, under the ambit of 'Towards a Cutlture of Open Networks' . The contents of this announcement are the sole responsibility of Sarai/CSDS and its Partners in this network, and can under no circumstances be regarded as reflecting the position of the European Union. From admin at lead-journal.org Sat May 20 22:49:21 2006 From: admin at lead-journal.org (LEAD-Journal) Date: Sat, 20 May 2006 19:19:21 +0200 Subject: [Commons-Law] LEAD-Journal, publication of volume 2/1 Message-ID: <9d23094c75fdd6cccad032cc038fa254@lead-journal.org> Dear Mr Lawrence Liang, The editors of the Law, Environment and Development Journal (LEAD-Journal) are pleased to inform you that the first issue of the 2006 volume (volume 2/1) has now been published at www.lead-journal.org. LEAD-Journal is a peer-reviewed journal jointly published by the School of Oriental and African Studies - University of London and the International Environmental Law Research Centre (Delhi). Its principal editors are Dr Philippe Cullet (SOAS) and Dr Usha Ramanathan (IELRC). You can access the current issue of the journal at http://www.lead-journal.org/current_issue.htm. We hope that you will find this issue useful. We would be delighted if you would consider contributing to future issues of the journal. The deadline for submissions for the next issue is 15 June 2006. Best wishes Jessy Thomas, Managing Editor Law, Environment and Development Journal (LEAD) c/o International Environmental Law Research Centre (IELRC) 75 Sidharth Enclave Opposite Maharani Bagh New Delhi 110014, India Phone: + 91-11-5595 2322 info at lead-journal.org www.lead-journal.org note: you have received this email because you are on a list of people that we believe are interested in law, environment and development compiled by LEAD-Journal. This list will only be used for infrequent announcements concerning LEAD-Journal. Should you wish to be removed from this list, please write to us at admin at lead-journal.org with the subject line 'unsubscribe' and we will remove you from the list. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20060520/a76badf4/attachment.html From karim at sarai.net Mon May 22 16:34:57 2006 From: karim at sarai.net (Aniruddha Shankar) Date: Mon, 22 May 2006 16:34:57 +0530 Subject: [Commons-Law] the cost of piracy Message-ID: <44719AD9.9020106@sarai.net> Someone did some calculations, multiplying the sum demanded by the RIAA as compensation for copyright infringement per song and the estimated number of songs shared in a month on a popular torrent sharing website. It turns out [1] that the "total cost to the music industry in one month was $11,440,939,650,000". That's 5 times more than the *annual* GDP of France. Tim Warnock, an economist, further advanced the argument, stating [2] that "The cost for piracy is greater than all of the money on earth. We will be forced to invent new renewable sources of wealth so that we can keep up with these "pirates" you and the RIAA have told us about. By these calculations we only have a few months before total economic collapse where we all starve to death! Thank God the RIAA has stood up to these "pirates" and warned us before it's too late." [1] http://snipurl.com/qoi5 [2] http://snipurl.com/qsnf From tetra at tetrain.com Wed May 24 11:32:54 2006 From: tetra at tetrain.com (tetra) Date: Wed, 24 May 2006 11:32:54 +0530 Subject: [Commons-Law] test mail Message-ID: <4473F70E.4020907@tetrain.com> test mail From seth.johnson at RealMeasures.dyndns.org Wed May 24 12:34:01 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Wed, 24 May 2006 03:04:01 -0400 Subject: [Commons-Law] Saturday: Organizing for Free Software in Dominican Republic: Antonio Perpinan of Codigo Libre Message-ID: <44740561.B586A769@RealMeasures.dyndns.org> New York area folks should find this event of particular interest. See the description of what Codigo Libre has accomplished in the Dominican Republic below. Seth -------- Original Message -------- Subject: Pho: Saturday 27 May 2006 Special Meeting: Antonio Perpinan of CodigoLibre on Organizing for Free Software Date: Tue, 23 May 2006 21:29:42 -0400 From: To: pho at onehouse.com There will be two free software meetings on Saturday 27 May 2006 at 49 East Houston Street, on the Island of the Manahattoes. The first meeting starts at 3:00 pm and is a Laptop Install Fest. We will attempt to put as many free operating systems as we can on as many laptops as we can. This informal install fest is only for laptops; we will not attempt any installations on non-portable devices. There will also be Lispers at this meeting, and if you want help starting out in Lisp, including Scheme and Elisp, come to this meeting. The second meeting starts at 6:00 pm. Antonio Perpinan, head of Codigo Libre of the Dominican Republic, will speak. http://www.codigolibre.org The nearest subway stop is Broadway-Lafayette. B, D, F, and V trains stop at Broadway-Lafayette. The downtown 6 train stops at the station, but the uptown 6 train does not. This meeting is sponsored by LXNY and CFSG. The meeting space has been donated by Anonymous, and we thank Our Anonymous Host! http://www.cfsg.org Codigo Libre has done extraordinary things: 1. Codigo Libre has over one thousand members. 2. Codigo Libre has helped migrate all sorts of public and private institutions to free software, including banks such as BHD, Popular, and Reservas (the State Bank), the biggest supermarket chain, el POLA, which runs entirely on Red Hat, and the largest Dominican mining company, Cemento Cibao, which runs Fedora. They are now migrating the La Salle high schools, starting in the City of Santiago, where they will teach using Ubuntu. The State has 9 schools spread throughout the capital city of Santo Domingo, where they are planning the migration of over 525 PCs to SuSE GNU/Linux. Codigo Libre has taught more than 15,000 teachers at the Board of Education to use GNU/Linux, as well as college professors at the Public University. 3. Codigo Libre does on-site paid training, free counseling and support for businesses, including free investigation to solve any problems related to integrating free software in the workplace. 4. Codigo Libre prints and publishes their own books. They give courses ranging from from beginner's courses to advanced courses in telephony, programming, and databases. They have developed their own Certification with manuals, practices, courses, and certification exams, covering fundamentals, administration, networking, and security. 5. Codigo Libre are today working in the Dominican Senate to establish a National Law for Free Software, and to have the Senate approve a Committee of Free Software to guide public institutions in migrating to free software. 6. The UNICDA university offers a graduate level course on GNU/Linux technology administration. The Dominican Republic is embarked on a two million dollar project to teach 25,000 kids GNU/Linux. Codigo Libre is central to these efforts. 7. Codigo Libre has two bases, a 375 square foot location in Santo Domingo with 4 classrooms and 40 PCs running Ubuntu, routers, wireless internet access, a large meeting room for 50 people, where groups meet every day on diverse subjects: GNU/Linux administration, Asterisk, c/c++/java, PHP, DBMSes, etc.; and a 1,500 square foot location in Santiago with 4 air conditioned classrooms and an event hall for 200 people, 24 PCs, blackboards, etc. 8. Codigo Libre offers various forms of membership. Members get discounts, participate in courses, and give and get help in job searches. Antonio Perpinan has been at the head of these advances since 1998 when Codigo Libre was founded. Many groups have tried to do some of what Codigo Libre has actually done. This meeting is a chance to hear about how these things get done, and where free software stands today in the Dominican Republic and other Latin American countries. We will eat and drink after the meeting. We do not yet know where. Jay Sulzberger Corresponding Secretary LXNY LXNY is New York's Free Computing Organization. http://www.lxny.org From mckenziewark at hotmail.com Thu May 25 00:16:11 2006 From: mckenziewark at hotmail.com (McKenzie Wark) Date: Wed, 24 May 2006 14:46:11 -0400 Subject: [Commons-Law] GAM3R 7H30RY Message-ID: <2B089B05-FF80-4D8B-A39B-9BBDA9222E49@hotmail.com> Together with the Institute for the Future of the Book, I created a new kind of book/web interface to present a draft of my new book GAM3R 7H30RY, free to the public, open for comment and discussion. GAM3R 7H30RY is about two questions: * can we explore games as allegories for the world we live in? * can there be a critical theory of games? I thought it would be interesting to share the book in its draft state to see if these questions are something other people might have ideas on or might want to pursue. So I invite you to come on by and take a look at the site, browse or read the book, join the discussion if you feel like it: http://www.futureofthebook.org/gamertheory/ thanks -- Ken -- and sorry for the mass mail out. I don't do them often so i hope you'll forgive me. ____________________________________ McKenzie Wark http://www.ludiccrew.org From shohini at vsnl.com Wed May 24 07:04:39 2006 From: shohini at vsnl.com (Shohini Ghosh) Date: Wed, 24 May 2006 07:04:39 +0530 Subject: [Commons-Law] [CACDelhi] Gulabi Aina is refused a CensorCertificate Message-ID: <0DABFAB7-3A25-4F26-B078-B223CDEEFCD4@vsnl.com> This was posted by Nitin Karani on the lGBT list. This was the film DFA screebed at Ramjas College. Shohini Myopic Censor Board: Banned, Banned, Banned! By Nitin Karani on Media Like Jesus Christ is said to have told Peter, 'Before the cock crow, thou shalt deny me thrice', the Indian Censor Board in Delhi has banned Sridhar Rangayan's film on drag queens thrice over. While in April 2003 the censor board refused 'Gulabi Aaina' (The Pink Mirror) a certificate because it is "full of obscenity and vulgarity", recently in April 2006, the board has done a complete change of tack to keep the film in the closet! The revising committee and the second revising committee refused it a certificate because in their opinion "the film Gulabi Aaina deals with an extremely complex issue of alternate sexuality in a peripheral manner". Further, the board's order states, "The problems and isolation faced by transvestites has not been dealt with in a holistic manner. Thus the film is refused certification as per relevant provisions of Cinematograph Act 1952". No, there's no need to be happy or shocked that our esteemed State- appointed gatekeepers of art have discovered that most Indian filmmakers, when they are not invisibilizing homosexuality, are making fun of it. Theirs is neither a response to the 'Girlfriend' shock or to the 'My Brother Nikhil' balm. At worst it is an insidious, invidious game plan to keep a movie that makes no bones about same-sex desire and its natural ness with loads of humor hidden from the public gaze. At best, it is the sheer arrogance of an ignorant lot with no idea about the medium or the subject giving short shrift to the intelligence of both the audience and the filmmaker. Sridhar is justifiably enraged and ready to join battle. He is planning to fight it out by taking the issue to the tribunal. (Also, see his comments below on the guidelines under which the committee reviewed the film and rejected it.) Fighting a battle for three years to get his film reviewed by the Board, Sridhar says he came across several skeletons in the censor board's cupboard: "From those who write censor scripts, but actually offer their services as touts to get the film passed by censors to filmmakers who add six scenes of violence so that the censors can cut three and pass it. I even found out from reliable sources that a recent, acclaimed gay film was passed by the Censor Board on payment of certain monies." While Sridhar does praise the Board's chairperson Sharmila Tagore and the regional officer at Delhi who "at least gave the film a fair chance by putting it up for review", he is critical of the revising committee: "It was ridiculous sitting in front of six people and having to explain why I made the film and what I have tried to say in the film. If I could say it all verbally, then why did I have to use a visual medium like film! "Peripheral and not holistic?! What do they expect me to say in 40 minutes, which is the length of my film. Moreover, 'Gulabi Aaina' is not a documentary. I wanted it to be an entertainer, but layered with subtext. When you do a film about gays, everyone expects a preachy message or a downright maudlin tearjerker. I wanted the audience to laugh with the characters instead of at them. Isn't that good enough reason to make the film and have it reach viewers? It's a different way of sensitizing." The Board really takes the cake and the pudding for implying that Sridhar's film is insensitive to the problems faced by what it calls "transvestites". In fact, that requires a vast stretch of imagination considering that Sridhar has been one of the forbearers of the gay rights movement in Bombay, being deeply involved with 'Bombay Dost' and The Humsafar Trust. The feckless, hypocrites in the committee after all the 'tamasha' of interrogating Sridhar about the film didn't have the balls to pass the film. Says he, "They pretend they are broadminded, but when it comes to films with an alternate take, they cowards. Basically, I have realized they wanted my characters to cry over their fate. They didn't take too kindly to the fact that I showed gays and drag queens happy with their lives and being unapologetic. They wanted a daily soap with buckets of tears!" If Ekta Kapoor was looking for 'chamchas', she would have found them there. Meanwhile, Sridhar is looking for your support, especially if you are from the film fraternity and/or the gay community: "My fight is about freedom of expression as a filmmaker, and I damn well know how to use it sensitively and sensibly." Thankfully, Sridhar's latest film 'Yours Emotionally!' has been produced by a UK based production house so no going through the sicko censors this time! Crafty Censors Instead of protecting the citizens, more often the State uses the law to terrorize them and curb their rights. Our censorship guidelines have also been similarly twisted to restrict free speech and discussion of homosexuality. While an in-depth look at the guidelines is needed, Sridhar gave his responses to some of the guidelines under which the committee reviewed 'Gulabi Aaina' and rejected it: - The medium of film remains responsible and sensitive to the values and standards of society. "Nowhere is it mentioned what are these great values and standards of the society that they talk about. It is all a thick cloud in the air that the moral policemen comfortably hide under." - Artistic expression and creative freedom are not unduly curbed. "But that's exactly what they are doing by banning my film. It's utterly ridiculous!" - Certification is responsive to social change. "If they keep refusing certificate to films that are away from the mainstream and attempt to discuss alternate issues, how do they expect any social change to happen? All they want is to maintain a status quo so that none of them will be blamed for taking an issue forward. It's the who-wants-to-bell-the-cat syndrome." - The medium of film provides clean and healthy entertainment. "Just look at all the masala films and skin flicks that get the Censor's nod. Calling it clean and healthy entertainment is a big joke. Take a reality check folks!" - As far as possible, the film is of aesthetic value and cinematically of good standard. "My film has been screened at 57 international film festivals and won Jury Awards for Best Film of the Festival in New York and France. Most of the reviews talk about the sensitive handling of the subject and it has been rated as 'fabulous', 'compelling', 'unique' and even 'an excellent example of Indian cinema' by a Spanish critic. An art historian at Ohio State University compared it to Shyam Benegal's 'Mandi', saying it bridged the gap between 'Fire' and 'Bombay Boys' by "adding that breath of reality". How much more aesthetic and cinematic value can I pump into the film to please the censors? Maybe I should include 5 grisly murders, 3 item numbers and a bevy of half- naked women!" posted by Nitin Karani @ 5:32 AM [Non-text portions of this message have been removed] Yahoo! Groups Links <*> To visit your group on the web, go to: http://in.groups.yahoo.com/group/CACDelhi/ <*> To unsubscribe from this group, send an email to: CACDelhi-unsubscribe at yahoogroups.co.in <*> Your use of Yahoo! Groups is subject to: http://in.docs.yahoo.com/info/terms/ From vinay at nls.ac.in Thu May 25 15:18:09 2006 From: vinay at nls.ac.in (Vinay Aravind) Date: Thu, 25 May 2006 15:18:09 +0530 (IST) Subject: [Commons-Law] RIAA upto its tricks again Message-ID: <44489.59.94.109.43.1148550489.squirrel@59.94.109.43> >From Newsfactor (originally at http://www.newsfactor.com/story.xhtml?story_id=43363 ) RIAA Takes XM Satellite Radio to Court Natural allies in the music industry -- record labels and a leading satellite service -- are on opposing sides in a federal lawsuit over how consumers may legally record songs using next-generation radio devices. The recording industry accuses XM Satellite Radio of "massive wholesale infringement" because of a $400 iPod-like device that allows XM customers to record up to 50 hours of music and automatically parse recordings by song and artist. The "Inno" is sold under the slogan, "Hear it, click it, save it." The lawsuit, filed Tuesday in New York by the largest labels, seeks $150,000 in damages for every song copied by XM Satellite customers using the devices, which went on sale weeks ago. The company says it plays 160,000 different songs every month. The lawsuit does not seek directly any payments from or sanctions against XM Satellite customers who record songs. But if the lawsuit were successful, it could raise the company's costs, which could be passed on to subscribers as higher monthly fees. XM Satellite promised to fight the lawsuit and accused the labels of using the courts as leverage during business negotiations. "These are legal devices that allow consumers to listen to and record radio just as the law has allowed for decades," it said in a statement. "The music labels are trying to stifle innovation, limit consumer choice and roll back consumers' rights to record content for their personal use." XM Satellite has balked at the recording industry's efforts to collect expensive distribution licenses similar to those required for Internet downloading services, such as Apple Inc.'s iTunes. XM's chief rival, Sirius Satellite Radio Inc., already has agreed to pay for such licenses to cover similar gadgets for its service. XM's chairman, Gary Parsons, previously said requiring such licenses, in addition to broader performance licenses the company already pays, would represent "a new tax being imposed on our subscribers." XM Satellite has compared its new device to a high-tech videocassette recorder, which consumers can legally use to record programs for their personal use. It also says songs stored on the device from its broadcasts can't be copied and can only be played for as long as a customer subscribes to its service. The head of the music industry's trade group said the XM Satellite device is legally indistinguishable from iPods and other portable music players that work with downloading services. "Yahoo!, Rhapsody, iTunes and Napster all have licenses," said Mitch Bainwol, chief executive for the Recording Industry Association of America. "There's no reason XM shouldn't as well." XM subscribers pay $12.95 per month to listen to more than 170 channels of entertainment, sports and news programs, including 69 channels of different music genres without commercials. A Washington-based consumers group, Public Knowledge, said the lawsuit threatens the rights of listeners to record music for their own use. "The shame of the legal action, however, is that this is really a dispute between XM and the recording industry over licensing fees," the group's president, Gigi Sohn, said in a statement. "The companies should be left to figure out a solution without interference from the courts or from Congress." From seth.johnson at RealMeasures.dyndns.org Fri May 26 01:34:48 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Thu, 25 May 2006 16:04:48 -0400 Subject: [Commons-Law] Judiciary Votes for Antidiscrimination for Broadband Message-ID: <44760DE0.EC6BA4E7@RealMeasures.dyndns.org> -------- Original Message -------- Subject: [nten-discuss] A Net Neutrality WIN! Date: Thu, 25 May 2006 12:02:40 -0700 From: "Steve Wright" To: nten-discuss at list.nten.org Today the House Judiciary Committee passed an amendment to the Clayton Antitrust Act that would bar discriminatory practices by broadband Internet access providers. The vote was 20-13, with 4 not voting. This vote is a victory for the net neutrality coalition. The bill was supported by 6 Republicans and 14 Democrats. Republicans voting in favor were Sensenbrenner (Chairman), Goodlatte (Co-founder, Congressional Internet Caucus), Lungren, Jenkins, Cannon and Inglis. The House Judiciary Committee is likely to request that this bill be made an amendment to the Energy and Commerce-passed video franchise bill, with its weak neutrality provisions, when it is considered by the full House. There is no clear indication how the House leadership will deal with these divergent proposals, but at least there is now a net neutrality vehicle to counterbalance the telcom bill. Steve Wright Program / Technical Director w: 415.901.5606 f: 415.358.4304 (general) f: 415.520.0124 (for CRM donations): +++++++++++++++++++++++++++++++++++ Salesforce.com has been added to the KLD Domini 400 Social Index for its commitment to giving back to the community through encouragement of employee volunteerism, a generous and innovative charitable giving program and strong support for hiring the disabled. From seth.johnson at RealMeasures.dyndns.org Fri May 26 05:27:50 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Thu, 25 May 2006 19:57:50 -0400 Subject: [Commons-Law] Don't Think So . . . Judiciary Votes for Antidiscrimination for Broadband Message-ID: <4476447E.2D93FB5B@RealMeasures.dyndns.org> > http://www.publicknowledge.org/node/358 > http://www.publicknowledge.org/pdf/hr5417-109.pdf Wrong target. The issue is not nondiscriminatory treatment of "content, services or applications." Now we will have marginalized new applications (and content and services). The target is the IP protocol. Fair, best effort, non-discriminatory. This Bill only gives the other side more to work with. Whereas they knew at some level people would want to fight for their rights of free expression on the communications medium, whatever they tried to do, now they only need to articulate "equal treatment" for particular "content, services or applications." And only "lawful" "content, services or applications." It needs to be language that speaks of the transport, in its nature. Not the application layer. Sorry. But that's the deal. Anything else will screw it up. And let me emphasize that further: This would spell the end of most of the issues we are concerned about. It will signal the beginning of authorizing without question reification of "content, services and applications" and will dovetail with WIPO broadcaster rights and end-to-end content control that reaches across the network and all the way through your machine. It's like language. It's got letters and you can have different languages making different words with the same letters, and you can make any sentence you need to, to accomplish anything you need. It's bit-level flexible. This Bill will kill that. Seth -------- Original Message -------- Subject: [nten-discuss] A Net Neutrality WIN! Date: Thu, 25 May 2006 12:02:40 -0700 From: "Steve Wright" To: nten-discuss at list.nten.org Today the House Judiciary Committee passed an amendment to the Clayton Antitrust Act that would bar discriminatory practices by broadband Internet access providers. The vote was 20-13, with 4 not voting. This vote is a victory for the net neutrality coalition. The bill was supported by 6 Republicans and 14 Democrats. Republicans voting in favor were Sensenbrenner (Chairman), Goodlatte (Co-founder, Congressional Internet Caucus), Lungren, Jenkins, Cannon and Inglis. The House Judiciary Committee is likely to request that this bill be made an amendment to the Energy and Commerce-passed video franchise bill, with its weak neutrality provisions, when it is considered by the full House. There is no clear indication how the House leadership will deal with these divergent proposals, but at least there is now a net neutrality vehicle to counterbalance the telcom bill. Steve Wright Program / Technical Director w: 415.901.5606 f: 415.358.4304 (general) f: 415.520.0124 (for CRM donations): +++++++++++++++++++++++++++++++++++ Salesforce.com has been added to the KLD Domini 400 Social Index for its commitment to giving back to the community through encouragement of employee volunteerism, a generous and innovative charitable giving program and strong support for hiring the disabled. From seth.johnson at RealMeasures.dyndns.org Fri May 26 06:59:36 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Thu, 25 May 2006 21:29:36 -0400 Subject: [Commons-Law] Broadcast Flag Unanimity in Draft Telecomm Bill Message-ID: <44765A00.6F586D17@RealMeasures.dyndns.org> (Table of Contents pasted below. -- Seth) > http://www.baller.com/pdfs/sendems.pdf Seth -------- Original Message -------- Subject: [IP] broadcast flag unanimity - Senate Dems also back flag in own draft telecom. bill Date: Thu, 25 May 2006 19:49:50 -0400 From: David Farber To: ip at v2.listbox.com Begin forwarded message: From: Ethan Ackerman Date: May 25, 2006 6:58:58 PM EDT To: Declan McCullagh , David Farber Subject: Fwd: broadcast flag unanimity - Senate Dems also back flag in own draft telecom. bill Greetings Dave, Declan, A credibly authentic draft of the Senate Commerce Committee Democrats' response to the Stevens telecom. bill looks to also include a wholesale ratification of the FCC's (over-ruled) broadcast flag. If, as implied, this draft becomes the Democratic response to Sen. Stevens' (and his fellow Republicans') bill, then the broadcast flag is no longer even a point of dispute... I'm sure there's more in this ~100 page bill, including net neutrality and national cable franchising rules, but for the the proposed 'official' Democrat line to be considering adopting the 'broadcast flag' into law is news enough... (Details -this looks to be the draft Senate Commerce Committee Democrats' response to the Stevens bill - prepared by ranking member Sen. Inouye's committee staff. This isn't the same as 'introduced legislation' - far from it, but still indicates positions Senators are taking. The ranking member's bill also doesn't guarantee the bill the support of all committee democrats, but often gets it - and almost assures a committee majority.) Hat tip to Jim Baller who brought this to my attention. -Ethan ---------- Forwarded message ---------- From: Jim Baller Date: May 25, 2006 4:08 PM Subject: Baller Herbst List: 5-25-06 To: Jim Baller BROADBAND Sen. Democrats draft telecom bill http://www.baller.com/pdfs/sendems.pdf [...] If you would like to join or leave our list, please send an e-mail to info at baller.com. - ------------------------------------- Archives at: http://www.interesting-people.org/archives/interesting-people/ - --- The table of contents for this Act is as follows: 2 Sec. 1. Short title. Sec. 2. Table of contents. TITLE I—PROMOTING VIDEO COMPETITION SUBTITLE A—VIDEO FRANCHISING Sec. 101. Application of title VI to all facilities-based providers of video programming. Sec. 102. Accelerated disposition of franchise applications. Sec. 103. Conforming amendments; Effective date. SUBTITLE B—DIGITAL CONTENT PROTECTION; RELATED MATTERS Sec. 151. Protection of digital broadcast video content. Sec. 152. Protection of digital audio broadcasting content. Sec. 153. Elimination of terrestrial loophole. Sec. 154. DBS services requirements. Sec. 155. Internet video. Sec. 156. TV Act/video description. TITLE II—PROMOTING VOICE AND DATA COMPETITION Sec. 201. Internet nondiscrimination/network neutrality requirements. Sec. 202. Obligations of incumbent local exchange carriers. Sec. 203. Stand alone broadband requirement. Sec. 204. Better data on local competition in different product markets. Sec. 205. Improved enforcement options. Sec. 206. Competition in special access markets. Sec. 207. Customer contracts. Sec. 208. Competitive alternative pricing. Sec. 209. Forbearance. Sec. 210. Definitions. TITLE III—ENCOURAGING BROADBAND DEPLOYMENT AND BASIC COMMUNICATIONS RESEARCH Sec. 301. Eligible broadcast television spectrum made available for wireless use. Sec. 302. Municipal broadband. Sec. 303. Federal information and communications technology research. Sec. 304. Community broadband grants for unserved areas and underserved communities. Sec. 305. Direct FCC to revisit broadband speeds. Sec. 306. Direct census to include question as part of its American Community Survey. TITLE IV—REFORM AND STRENGTHEN USF Sec. 401. Universal Service Fund contribution requirements. Sec. 402. Treatment of substitute services under section 254. Sec. 403. Phantom traffic. Sec. 404. Permanent extension of ADA exemption. Sec. 405. Intercarrier compensation. Sec. 406. Conditions for designation as an eligible telecommunications carrier; Broadband requirement.. Sec. 407. Rural health care support mechanisms. Sec. 408. Telecommunications services for libraries. Sec. 409. Audits. From prashant at nalsartech.org Fri May 26 14:03:33 2006 From: prashant at nalsartech.org (Prashant Iyengar) Date: Fri, 26 May 2006 14:03:33 +0530 Subject: [Commons-Law] BLOG YOUR WAY TO MUSIC WORLD! Message-ID: <20060526140333.p2l01byaivxoo4wg@www.nalsartech.org> Source: The Hindu http://www.hinduonnet.com/thehindu/thscrip/print.pl?file=2006052601182400.htm&date=2006/05/26/&prd=bl& Thiruvananthapuram,May 25:THE story of Blogswara is a tale of how 30 people, who live in three countries and have never met, collaborated to produce an album of original music. The group's debut album, called BLS-1, was released today and is available on the Web site www.blogswara.in. The eight songs, in three languages - Hindi, Malayalam and Tamil - and two instrumental tracks can be listened to online and can also be downloaded free, say Joseph Thomas and Anup Menon, two members of the Blogswara team. What makes this venture different, apart from the rather catchy name, is that most members of the Blogswara team are not professional musicians. Added to that all the work on the songs has been done online in different parts of the world. So, for instance, while the music track for a particular song was recorded in the US, the singer might have recorded his bit in the UK and the post-production work on the song was probably done in India, Menon explains. "Each individual works at his/ her own convenience with the most common mode of communication being the Internet," he adds. All members of the Blogswara are bloggers who have Web logs or Blogs of their own. In fact, it was blogging and a shared passion for music that brought the group together. What started off as a collaborative effort between a few bloggers, soon evolved into Blogswara, say Thomas and Menon. The Blogswara concept, "tells you that even if you do not have any professional backing from the entertainment industry, you can still reach out to the public and present your work," says Menon. "Our objective it to make Blogswara a sounding board for upcoming musicians and talent to showcase themselves," he adds. So, very soon, other musicians or bloggers will be able to be a part of Blogswara, adds Thomas. Also on the anvil is a second album of original music. © Copyright 2000 - 2006 The Hindu Business Line http://www.nalsartech.org/tikiwiki/tiki-read_article.php?articleId=14876 From seth.johnson at RealMeasures.dyndns.org Fri May 26 20:51:21 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Fri, 26 May 2006 11:21:21 -0400 Subject: [Commons-Law] Pubpat Kills JPEG Patent Message-ID: <44771CF1.24686AFB@RealMeasures.dyndns.org> -------- Original Message -------- Subject: PUBPAT News: PATENT ASSERTED AGAINST JPEG STANDARD REJECTED BY PATENTOFFICE AS RESULT OF PUBPAT REQUEST Date: Fri, 26 May 2006 07:08:56 -0400 From: Public Patent Foundation To: PUBPAT News List PATENT ASSERTED AGAINST JPEG STANDARD REJECTED BY PATENT OFFICE AS RESULT OF PUBPAT REQUEST: Public Interest Group's Review Results in Broadest Claims of Forgent Networks Patent Being Ruled Invalid NEW YORK -- May 26, 2006 -- In the reexamination proceeding initiated late last year by the Public Patent Foundation ("PUBPAT"), the United States Patent and Trademark Office has rejected the broadest claims of the patent Forgent Networks (Nasdaq: FORG) is asserting against the Joint Photographic Experts Group (JPEG) international standard for the electronic sharing of photo-quality images. In its Office Action released yesterday, the Patent Office found that the prior art submitted by PUBPAT completely anticipated the broadest claims of the patent, U.S. Patent No. 4,698,672 (the '672 Patent). Forgent Networks acquired the '672 Patent through the purchase of Compression Labs, Inc. in 1997 and began aggressively asserting it against the JPEG standard through lawsuits and the media in 2004. The company has the opportunity to respond to the Patent Office's rejection, but third party requests for reexamination, like the one filed by PUBPAT, result in having the subject patent either modified or completely revoked roughly 70% of the time. "The Patent Office has agreed with our conclusion that it would have never granted Forgent Networks' '672 patent had it been aware of the prior art that we uncovered and submitted to them," said Dan Ravicher, PUBPAT's Executive Director. "Making matters worse here is that this new prior art was known by those who filed the application that led to the '672 patent, but none of them told the Patent Office about it, despite their duty to do so." More information about the reexamination the Forgent Networks patent being asserted against the JPEG standard, including a copy of the Patent Office's Office Action rejecting its broadest claims, can be found at http://www.pubpat.org/Protecting.htm. Contact: Daniel Ravicher, Executive Director Public Patent Foundation (212) 796-0570 info at pubpat.org About PUBPAT: The Public Patent Foundation ("PUBPAT") is a not-for-profit legal services organization working to protect the public from the harms caused by the patent system, particularly the harms caused by wrongly issued patents and unsound patent policy. To be kept informed of PUBPAT News, subscribe to the PUBPAT News List by sending an email with "subscribe" in the subject line to news-request at pubpat.org. To be removed from the PUBPAT News List, send an email with "unsubscribe" in the subject line to news-request at pubpat.org. ### From seth.johnson at RealMeasures.dyndns.org Sat May 27 14:23:30 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Sat, 27 May 2006 04:53:30 -0400 Subject: [Commons-Law] Chinese Outlook on Exclusive Rights Policies Message-ID: <4478138A.B20E55D7@RealMeasures.dyndns.org> > http://www.shanghaidaily.com/art/2006/05/27/279534/IPR_protection_hot_potato_not_black_and_white.htm IPR protection hot potato not black and white Mei Xinyu 2006-05-27 Intellectual property right (IPR) protection is becoming an increasingly important concern in the business disputes between the United States and China. Admittedly, proper IPR protection is reasonable and advantageous in some ways. But in some aspects, the US is going to extremes. It is worth considering if the IPR system is helpful to promote the economic development and technological innovation at all. A great deal of research shows that a too strict IPR system may not encourage innovation, for the ultimate driving power of innovation actually comes from competition. In essence, strict IPR protection is a kind of monopoly, which effectively ensures rewards for innovators but also enables them to rely on monopoly rather than on further innovations for their high profits. Therefore, the more forceful the protection of innovation, the higher the monopolistic profits, and thus the weaker the driving power for further innovation. It is obvious that too strict IPR protection also worsens the conditions for innovation by forcing innovators to concentrate more on avoiding violating others' rights than on innovation. In the past, the US granted patents to each newly developed piece of software. But nowadays, the US grants a patent to almost each code used in certain software. Although this appears to be beneficial to the protection of innovators' rights, it is in fact discouraging technological innovation on the whole. Now anyone who wants to develop new software has to consider if each code he or she uses is violating others' patents. For this reason, many American enterprises have begun to seek development out of the country as they can no longer stand the continuous patent disputes there. In addition, certain requirements by the US concerning IPR in China contradict with some other requirements. For example, China is making great efforts to promote authorized software in all enterprises as is required by the US. However, such requirements violate China's commitment to the entry of WTO, which was made according to the requirements of Western countries including the US and European countries. Not to mention the fact that the Chinese government has no right to require non state-owned enterprises to use authorized software. Even in the case of state-owned enterprises, according to Article 46 of the Report of the Working Party on the Accession of China (into WTO), the Government of China would not influence commercial decisions on the part of state-owned or state-invested enterprises. Last but not least, the complaint of certain Americans that China is not punishing IPR violation acts enough is groundless. In China, the punishment on certain IPR violation acts is much more severe than that of the US. (The author is a senior researcher at the Ministry of Commerce. The views are his own. He can be reached at www.meixinyu.com) From seth.johnson at RealMeasures.dyndns.org Sat May 27 16:23:25 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Sat, 27 May 2006 06:53:25 -0400 Subject: [Commons-Law] Elephants Dream - Animation with Free Software Message-ID: <44782FA5.AEB60626@RealMeasures.dyndns.org> -------- Original Message -------- Subject: [Fsfe-ie] Elephants Dream - an animated movie made with FreeSoftware Date: Sat, 27 May 2006 11:36:23 +0100 From: David To: fsfe-ie at fsfeurope.org Hi, I notice this was mentioned on the ILUG mailing list as well, but in case people haven't heard about it already, I thought it would be worth mentioning here. The Elephant's Dream is a short, animated movie made with Free Software ( primarily Blender => http://www.blender.org/ ), which is being released under the Creative Commons Attribution License ( http://creativecommons.org/licenses/by/2.5/ ). It was made over a period of about six months by the Orange Open Movie team, the members of which gathered in a studio in Amsterdam for the duration of the production. Excluding the credits it's only about nine minutes long, but I think it's very impressive. The soundtrack is nice too. Downloads and torrents of different sizes are available at the link below. Link: http://www.elephantsdream.org/ -- David Collins GPG id 646C8A43 -- _______________________________________________ fsfe-ie at fsfeurope.org mailing list List information: http://mail.fsfeurope.org/pipermail/fsfe-ie Public archive: https://mail.fsfeurope.org/mailman/listinfo/fsfe-ie From lawrence at altlawforum.org Sat May 27 19:03:18 2006 From: lawrence at altlawforum.org (Lawrence Liang) Date: Sat, 27 May 2006 19:03:18 +0530 Subject: [Commons-Law] Critique of CC Message-ID: Hi All An interesting paper that critiques the limits of a private ordering system in the facilitation of the commons lawrence Niva Elkin-Koren, "What Contracts Can't Do: The Limits of Private Ordering in Facilitating a Creative Commons" . Fordham Law Review, Vol. 74, 2005 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=760906 Abstract: Creative Commons is a non-profit U.S. based organization that operates a licensing platform to promote free use of creative works. The idea is to facilitate the release of creative works under generous license terms that would make works available for sharing and reuse. Creative Commons advocates the use of copyrights in a rather subversive way that would ultimately change their meaning. The paper expresses a skeptical view of this worthy pursuit. While I share Creative Commons' concern with copyright fundamentalism, which inevitably leads to the propertization of everything of value, I am more skeptical of its strategy. The paper explores the legal strategy of Creative Commons and analyzes its potential for enhancing the sharing, distribution and (re)use of creative works. Creative Commons as a social movement creates a platform for a wide range of ideologies that share an interest in enhancing access to works. This turns out to be a great advantage for a social movement that is seeking to gain a wider public support. Creative Commons' legal strategy reflects the lowest common denominator: empowering owners to govern their creative works. At the same time, however, Creative Commons lacks a comprehensive vision of the information society and a shared definition of the prerequisites for open access to creative works. The end result is ideological fuzziness. The paper examines the strategic choice of Creative Commons to rely on property rights in its effort to subvert the meaning of copyright. The analysis shows that reliance on property rights, in the absence of a shared sense of free access, may simply strengthen the proprietary regime in creative works. It may reinforce the property discourse as a conceptual framework and as a regulatory scheme for governing the use of information. The fuzziness of ideology may further lead to the proliferation of contracts. Creative Commons' strategy presupposes that minimizing external information costs is critical for enhancing access to creative works. The lack of standardization increases, however, the cost of accessing creative works, and may further enhance the chilling effect of copyright law. The paper argues that creating an alternative to copyright may require standardization. To become successful, Creative Commons would have to trade the sovereignty of owners for the reduction of transaction cost that would enhance access to creative works. From aidslaw2 at lawyerscollective.org Mon May 29 16:46:01 2006 From: aidslaw2 at lawyerscollective.org (aidslaw2 at lawyerscollective.org) Date: Mon, 29 May 2006 16:46:01 +0530 Subject: [Commons-Law] Fw: Mailbox Project Message-ID: <02cd01c68311$4654e7d0$1400a8c0@LCHAUBLR.com> ----- Original Message ----- From: aidslaw2 at lawyerscollective.org To: commons-law at sarai.net Sent: Wednesday, April 19, 2006 11:43 AM Subject: Mailbox Project Dear Friends, We are pleased to inform you that exactly one year after the Indian Patent (Amendment) Act (2005) passed, on 26 March 2005, we are able to share with you a searchable database of "mailbox drugs". The existing database of the Indian Patent Controller was not searchable, nor did it provide critical information regarding disease or priority. Over the last year, we worked to improve the government's database and are happy to share with you the second installment, available at: http://www.lawyerscollective.org/lc_hivaids/amtc/mailbox What can you do with this information? Firstly, you can search by disease for drugs that may be patented soon, and may not be available, affordable or accessible in the near future. Secondly, you can engage in the Indian procedure of pre-grant opposition whereby any interested person can oppose the granting of patents on these drugs. Thirdly, you can engage in advocacy against the drug companies seeking to obtain patents (or monopolies) on these drugs. We are still hoping to improve on the database so do send us your comments at aidslaw2 at lawyerscollective.org. Also, we will be regularly updating and releasing the mailbox drugs database and hope to soon bring you completely up to date. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20060529/37f46574/attachment.html From lewisma9 at msu.edu Mon May 29 23:28:50 2006 From: lewisma9 at msu.edu (Maryellen J Lewis) Date: 29 May 2006 17:58:50 -0000 Subject: [Commons-Law] Your latest info Message-ID: <1148925530.26788.102347.sendUpdate@mx.plaxo.com> Commons-Law, I'm updating my address book. Please take a moment to update your latest contact information. Your information is stored in my personal address book and will not be shared with anyone else. Plaxo is free, if you'd like to give it a try. Click the following link to correct or confirm your information: https://www.plaxo.com/edit_contact_info?r=25769871611-62178106-1405695283 Name: commons-law Job Title: Company: Work E-mail: commons-law at sarai.net Work Phone: Work Fax: Work Address Line 1: Work Address Line 2: Work City, State, Zip: Mobile Phone: Home E-mail: Home Phone: Home Fax: Home Address Line 1: Home Address Line 2: Home City, State, Zip: Birthday: P.S. I've included my current contact information below. I've also attached a copy as a vCard. +----------------- | Maryellen J Lewis | lewisma9 at msu.edu | Chair, Global Fair Finance Initiative, NCRC | | MSU Community & Economic Development | 4729 Bristol St | work: 612-284-2534 | fax: 517-393-5330 | web: www.globalfairbanking.org | | Personal Information: +------------------------------------- ____________________________________________________________ This message was sent to you by lewisma9 at msu.edu via Plaxo. To opt out: https://www.plaxo.com/opt_out?r=25769871611-62178106-1405695283 Plaxo's Privacy Policy: http://www.plaxo.com/support/privacy -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20060529/bd9144f1/attachment.html -------------- next part -------------- ***** NOTE: An attachment named Maryellen J Lewis.vcf was deleted from this message because it possibly contained a windows executable or other potentially dangerous file type. Contact admin at sarai.net for more information. From seth.johnson at RealMeasures.dyndns.org Tue May 30 03:34:11 2006 From: seth.johnson at RealMeasures.dyndns.org (Seth Johnson) Date: Mon, 29 May 2006 18:04:11 -0400 Subject: [Commons-Law] On "Net Neutrality" and HR 5417 Message-ID: <447B6FDB.F9B3B19C@RealMeasures.dyndns.org> Innovation on the Internet is based on individuals being able to develop new ways to use communications. It is not that like "types" of "content, services or applications" must be treated equally -- it is rather that anybody can create a new convention. Any group of at least two people can decide on a particular interpretation they wish to apply to a particular arrangement of digits, and mutually agree to apply these rules on both ends of their Internet connections. It's the flexibility of the transport, not the equality of "types" of stuff being transported, that makes this possible. HR 5417 mandates equal treatment of similar "types" of "content, services and applications." This formulation will do nothing other than authorize the end of net neutrality. The thing that assures everyone that nothing in the application layer will gain priority is the fact that every router in the transport layer, breaks every transmission up in a manner that is completely independent of the conventions that are applied above the transport layer. This makes the Internet generic and adaptible to any design or circumstance, while it also functions as the very basis of the Internet's reliability. This adaptibility and flexibility, this independence from any particular design placed on top of the transport, is the essence of net neutrality. This design is what assures the equal ability of everyone to speak freely in whatever manner serves each person or group's needs. While networks can be set up with dedicated pathways to carry whatever sort of protocol (application) one might choose to devise, the fact that the Internet breaks all transmissions up into packets, regardless of the structure of the protocol at the application layer, and then routes these packets independently through whatever routers are most suitable at any given moment, not only makes the Internet generic and flexible, but it also assures that nothing on the application layer controls the Internet transport. This gives everyone with an Internet connection the same opportunity to freely develop new modes of communication. Whenever we interact with anyone else, on the net or off, we establish special rules that enable us to interact, understand each other, exchange information, and work together, and we can adapt these conventions and create new ones respond to or suit any given circumstance or eventuality. Defining net neutrality in terms "equal treatment" of similar "types" of "content, services or applications" will only authorize those who seek to be able to determine the fate of the public's right-of-way, to end this flexibility. Seth From vinay at nls.ac.in Tue May 30 10:25:05 2006 From: vinay at nls.ac.in (Vinay Aravind) Date: Tue, 30 May 2006 10:25:05 +0530 (IST) Subject: [Commons-Law] EU backtracking on software patents In-Reply-To: <20060529221954.CFABC28DB8A@mail.sarai.net> References: <20060529221954.CFABC28DB8A@mail.sarai.net> Message-ID: <45097.59.94.109.43.1148964905.squirrel@59.94.109.43> Some good news! Originally available at: http://www.pcadvisor.co.uk/news/index.cfm?newsid=6241 EU backtracks on patent law Programs aren't patentable Matthew Broersma The EC (European Commission) this week appeared to take a step back from its earlier position on the patentability of software, stating that computer programs are not patentable, and that patents on them may be struck down by the courts. The statement, available on the European Parliament's website, made in response to a formal question from a Polish MEP, is a shift from the stance the EC has taken in recent years, according to some critics of software patents, particularly during its attempts to pass a directive liberalising what could be patented. That directive was eventually thrown out by the European Parliament, after failed attempts to alter its thrust. Campaigners against the proposed directive feared it would bring general EU (European Union) patenting practice into line with the EPO (European Patent Office), which has granted numerous US-style patents on software and business practices such as Amazon.com's 'One-Click' mechanism. More recently, those against software patents feared that a proposed 'Community Patent' would also be governed by EPO practice. The EC said the EPO would continue to handle the granting of patents, but said the Community Patent wouldn't make these any more enforceable than they already are, because the post-grant phase of patents would fall under Community Patent regulation, subject to the interpretation of the ECJ (European Court of Justice). "The ECJ is not bound by the case law developed by the EPO and is free in its interpretation of the provisions of the EPC, once it becomes part of the Community acquis [the existing body of EU law]," the EC said in a statement. The EC pointed out that this specifically meant patents for computer programs could be invalidated by the ECJ. "Patents granted for a subject matter (such as computer programs), which is excluded from patentability pursuant to Article 52 EPC [European Patent Convention], may be invalidated in a relevant court proceeding," the EC stated. The FFII (Foundation for a Free Information Infrastructure), which campaigns against software patents in Europe, saw the statement as a sign that the EC is changing its stance. "It is good to see that the EC no longer presents EPO case law as the status quo which must be codified," said FFII president Pieter Hintjens, in a statement. From getvicky at gmail.com Tue May 30 10:38:13 2006 From: getvicky at gmail.com (Vicky Shah) Date: Tue, 30 May 2006 10:38:13 +0530 Subject: [Commons-Law] Fwd: [technologylawforum] Are employers liable for the acts of their employees under section 79 of the IT Act? In-Reply-To: <447BCDE5.3070109@gmail.com> References: <447BCDE5.3070109@gmail.com> Message-ID: ---------- Forwarded message ---------- From: Nandkumar Saravade Date: May 30, 2006 10:15 AM Subject: [technologylawforum] Are employers liable for the acts of their employees under section 79 of the IT Act? To: CLAW , india-infosec at yahoogroups.com, technologylawforum at yahoogroups.com Ticking quietly: a liability bomb IN CONVERSATION Vandana Gombar / New Delhi May 30, 2006 India's cyber laws were put in place six years ago when the Information Technology Act was passed. Most companies are still unaware of the strict provisions of the law as the bazee.com case showed — the CEO of the company was held responsible for, and arrested, for explicit content put up for auction on his portal — and are thus exposed to serious liabilities, Pavan Duggal, cyber laws expert and supreme court advocate, tells *Business Standard*. *What are the provisions of the Act that "all" companies — IT and non-IT — need to comply with?* The law mandates all companies to have an information technology security policy. This documents the architecture of the network, the roles and responsibility of employees, security parameters and authorisation required for data access, among other things. Only a handful of companies have such a policy in place. Other compliances that are required include relate to retention and authentication of electronic records and security of data. *Why are companies, large and small, violating the law by non-compliance?* They are ignorant about the liabilities under the law. It takes a case like bazee to wake up people. *Apparently, even the bazee case has not woken up people?* Seems so. Almost 95 per cent of Indian firms are not storing electronic records as per requirement of the IT law. Further, any company providing a (computer) network is liable for acts of omission and commission on the network, in its capacity as a network service provider. All outsourcing (ITES) and IT companies are network service providers too. *If the breadth of the law is so vast, how come there aren't many cases being filed?* Numerous cases are coming up but companies are settling them out of court. I have personally advised many of them. The industry is yet to mature on cyber-compliance. It is sitting on a liability bomb. *Liability bomb? Isn't that alarmist?* This is not alarmist. This is objective reality. Let me give you the example of a case. Personal enmity pushed a lady to send malicious mail from an IP (Internet protocol) address which was traced to HDFC Bank. The bank became part of the case simply because its network was used to send mails. *Can't HDFC Bank claim ignorance of what happened and escape its liabilities (as allowed under Section 79)?* It has to either prove that it had no knowledge of any contravention or demonstrate that it had exercised all due-diligence to prevent the commission of such an offence. Proving of non-knowledge is a very difficult challenge for any company and since the law does not define what due-diligence is, this course of action also has its own challenges. The onus is on the network service provider to prove his innocence. The case was ultimately settled out of court. http://www.business-standard.com/common/storypage.php?autono=92876&leftnm=5&subLeft=0&chkFlg= SPONSORED LINKS Root cause analysis Technology law firm Technology law Hair loss cause ------------------------------ YAHOO! GROUPS LINKS - Visit your group "technologylawforum" on the web. - To unsubscribe from this group, send an email to: technologylawforum-unsubscribe at yahoogroups.com - Your use of Yahoo! Groups is subject to the Yahoo! Terms of Service . ------------------------------ - -- Warm Regards, Vicky D. Shah (+91) 9820105011 "Human Behavior is the Biggest Risk in Security" -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20060530/45f71136/attachment.html From prabhuram at gmail.com Tue May 30 19:45:51 2006 From: prabhuram at gmail.com (prabhu ram) Date: Tue, 30 May 2006 16:15:51 +0200 Subject: [Commons-Law] Poisonous Tree Frog Could Bring Wealth to Tribe in Brazilian Amazon In-Reply-To: <68752c9f0605300714q2bbca997u598dc3ba19187247@mail.gmail.com> References: <68752c9f0605300714q2bbca997u598dc3ba19187247@mail.gmail.com> Message-ID: <68752c9f0605300715q5d69445eh58e653692c77a752@mail.gmail.com> http://www.nytimes.com/2006/05/30/business/worldbusiness/30frogs.html?pagewanted=print Poisonous Tree Frog Could Bring Wealth to Tribe in Brazilian Amazon By PAULO PRADA CAMPINAS INDIAN RESERVE, Brazil — Fernando Katukina is chief of an indigenous tribe that lives largely without running water, electricity, or links to the world outside this remote corner of the western Amazon. But Chief Fernando says he possesses a treasure that could be at the cutting-edge of biotechnology. If a plan initiated by the chief is successful, his tribe's fortunes will be transformed by an asset he and the Brazilian government believe holds great promise for the global pharmaceutical industry: the slime from a poisonous tree frog. Tribal shamans have used the slime as an ancestral remedy to treat illness, pain, even laziness. The crucial ingredients are compounds with anesthetic, tranquilizing and other medicinal properties. Scientists say the promise lies in isolating peptides from the frog's slime and then reproducing them for medicines to treat hypertension, strokes and other illnesses Already, Chief Fernando has the full backing of Brazil's government, which sees the frog slime as a stepping stone to significantly advance its own research and development in pharmaceuticals. In particular, the scientific challenge of the frog, known locally as the kambô, will deepen Brazil's expertise in pharmacogenomics — the combined use of genetics and pharmacology — and it takes advantage of the traditional knowledge of indigenous people. "Traditional knowledge can help modern medicine and generate significant economic benefits, too," said Bruno Filizola, technical coordinator of the project and a biologist at the environment ministry in Brasília, Brazil's capital. The indigenous dimension is also crucial because Brazil, like other developing nations, is trying to fight back against what it perceives as biopiracy, the theft of biological resources from the country's native habitats for commercial use. Though the project is still in its early stages, and many starts often prove false, teams of some 20 scientists are seeking initial financing of close to $1 million from more than a dozen local universities, state governments and federal agencies. There is also a great deal more than naïve hope at stake here. Brazilian scientists have already taught the country's farmers, who today are among the world's top exporters, to manipulate soils and alter crops once unsuited for the country's climate. Now many researchers believe science can turn Brazilian forests into working, productive laboratories. "Brazil has a large, growing and capable community of scientists keen to develop their own research and products," said Joshua Rosenthal, deputy director of a division for international training and research at the National Institutes of Health in Bethesda, Md. Moreover, Brazilian researchers have not forgotten the case of the jararaca, the Amazonian viper. The pharmaceutical giant Squibb used the snake's venom to develop captopril, a blood pressure medicine it began selling in 1975. Though available generically since 1996, the medicine at its commercial peak was the largest selling product for the company, now part of New York-based Bristol-Myers Squibb, grossing $1.6 billion in 1991. "Because of past errors," reads a document from the Brazilian Environment Ministry, "captopril is not Brazilian." Though home to the world's largest rainforest and one of the most biodiverse ecosystems on the planet, Brazil traditionally has been slow to develop its so-called genetic patrimony — the plants and animals within its territory and the potential they offer for profit. The Ministry document also laments Brazil's historical research lag and the consequent loss of billions in potential revenues from pharmaceuticals, agricultural products, and other commercial goods. An overview for the effort known as Project Kambô, written by a team of researchers at the Environment Ministry, says, "The national genetic patrimony could be the key to Brazil's transformation in the global political and socio-economic context." The effort comes as developing countries increasingly promote the idea of developing and commercializing their traditional medicines and local arts. And they are questioning the rights of foreigners to exploit their locally derived products. At a United Nations gathering in the southern Brazilian city of Curitiba last month, delegates from developing nations called for changes to international law that would allow governments to block — or at least share profits from — foreign patents on biological resources found in their territory. In December, at a World Trade Organization meeting in Hong Kong, India's trade minister told delegates that progress in global trade talks hinged on similar changes. Private industry is wary. The road from research to finished product is long and costly. Rare is the compound, companies argue, that in unadulterated form would become the next wonder drug or other commercial bonanza. "Developing nations should take a lead by working to develop their own resources — not blocking the efforts of others to research and invest," said Alan Oxley, a former Australian trade ambassador who is now a consultant in Melbourne and runs a research institute funded in part by the U.S. pharmaceutical industry. Brazil aims to take a lead through the kambô. The project was launched last year after Marina Silva, Brazil's environment minister, received a letter from Fernando, the Katukina chief, denouncing the growing use of kambô poison by outsiders. Its perceived benefits in recent years fueled a pirate trade in the poison in cities across Brazil. The poison could be dangerous if administered wrongly, Chief Fernando warned. And its use, the letter added, is nothing less than biopiracy; if economic gain is generated by the remedy, the Katukina tribe should get a cut. Ms. Silva, a native of the tribe's home state of Acre, agreed. She authorized a ministry project to study the kambô, stipulating that any profits derived from the research be shared with the Katukina. "The know-how is the tribe's," she said in a recent telephone interview. "They must share in any rewards." Scientists have studied the kambô before. Called the giant monkey frog in English, because it climbs high into the rainforest canopy, the kambô first sparked attention among foreign researchers decades ago. Some of the compounds from the poison, secreted through the frog's skin, have even been patented abroad. Yet because scientists are still struggling to understand the poison, none of those patents have led to successful products. "These compounds have potent effects on human physiology," said Paul Bishop, a biochemist at ZymoGenetics, a Seattle-based pharmaceutical company, and the author of five patents based on kambô poison. "But we don't fully understand them all or just why they occur in the defenses of this tree frog." That is where Brazil hopes to excel. While biologists and chemists investigate the kambô, its habitat and the poison's makeup, a team of anthropologists and physicians will study the long-term impact of its use on the Katukina. One morning in mid-March, two scientists from the Federal University of Acre visited the tribe's reserve, a 125-square mile section of jungle near the Peruvian border. There, amid one of five clusters of wooden cabins, two shamans agreed to administer the kambô remedy, known in Portuguese as the "vacina do sapo," or "frog vaccine." Reginaldo Machado, a biologist, stood shirtless and sweating next to an older shaman, who touched the red-hot end of a burning twig three times to the scientist's shoulder. The other shaman, another twig in hand, then daubed the sticky, mud-like poison on each of the tiny burns. Mr. Machado, already in pain from a flare-up of chronic kidney stones, within seconds sprang from the wooden shack, suffering hot flashes, nausea, and stomach aches. Ten minutes later, he returned, expressing surprise. "I actually do feel stronger," he said. "There's more to this than myth." Though western dress long ago replaced the grass skirts traditionally worn by tribal people, the frog remedy is one of a handful of customs the Katukina preserve. After catching the frog in nearby trees, tribe members tie it spread-eagle style between two posts, collecting slime from its back and sides with a piece of wood, where it dries. They then release the frog and later, with water or saliva, re-hydrate the dried poison before applying it. Despite the term "vaccine," the slime does not vaccinate against any specific germ or illness. Once the body processes the poison's toxins — hence Mr. Machado's sweats and indigestion — its compounds induce what users say is a prolonged sense of alertness and wellbeing. Because they believe it heightens their senses, Katukina hunters traditionally use it most: Long rows of burn scars dot their arms, chests and stomachs. Most Katukina speak only the tribal variant of pano, a native Amazonian language group. Fernando, one of only two tribe members to work outside the reserve, is convinced of the kambô's value, and adamant that the medication, if used by others, can improve a tribal economy that is currently at the level of subsistence. "The vaccine belongs to us," he said. "Science might help us develop it, but kambô knowledge is Katukina." From namita at altlawforum.org Wed May 31 16:37:40 2006 From: namita at altlawforum.org (namita at altlawforum.org) Date: Wed, 31 May 2006 07:07:40 -0400 Subject: [Commons-Law] comics and copyright Message-ID: <380-22006533111740859@M2W138.mail2web.com> Tijuana bibles were 'cheerfully pornographic and downright illegal' 8 page cheap comic books that borrowed from comic characters like Minnie Mouse, Donald Duck, movie stars like Greta Garbo, Mae West, political figures like Gandhi, Stalin. "The essential magic of comics is that a few simple words and marks can conjure up an entire world for a reader to enter and believe in. Presumably, this is true of erotic comics as well; how else can one explain the willingness to spend hard Depression-era currency to be aroused by a very primitively drawn Donald Duck schtupping an ineptly drawn Minnie Mouse? It's precisely this miraculous ability to suspend disbelief and temporarily blur Image and Reality that arouses the ire of those puritanical censors of the Left and Right who can confuse depictions of rape with actual rape. It's a profound confusion of categories as well as a scrambling of symptom and cause." Art Spiegelman(Maus) on the Tijuana Bibles. The rest of the article is available at http://www.salon.com/aug97/spieg970819.html ...and for the absolute delicious destruction of teenage innocence(??)and soda pops in archie comics (and the answer as to what ponytailed betty is doing wrong) here's the tijuana bible with archie and veronica. http://tijuanabibles.org/cgi-bin/hazel.cgi?action=detail&item=TB030 -------------------------------------------------------------------- mail2web - Check your email from the web at http://mail2web.com/ .