Scribe’s Notes 2/25

I.                          Administrative Notes

a.                        Grades – see logistics memo athttp://cyber.law.harvard.edu/is02.

b.                       More cash – Harvard prize for technology

c.                        TPRC – Get $ for your paper.  http://www.tprc.org

II. SSCA Proposals

     a. Legislative session on SSCA.  

     b. Begin with Declan’s summary. 

III. Steps

     a. Copyright exists

     b. Promiscuous publication – Sue the middle people for vicarious and contributory infringement.  

     c. Trusted systems – Systems to protect intellectual/digital property and DMCA anti-circumvention provisions.  Must respect technical systems. 

    d. Big objection to trusted systems was that you could lock it up tighter than you could with the law directly.  But DMCA still penalizes crackers of this system. 

IV. SSSCA

     a. Too difficult to protect without help from the digital devices. 

     b. Review of SSSCA.  http://216.110.42.179/docs/hollings.090701.html

http://cryptome.org/sssca.htm     

     c. Temperature of the room:

          - meta-temperature – hum for thinking people will pass it.  No one.

          - temp -  a few people into it.  Most against it. 

     d. Cohen (pro): Better get everyone working to protect a copyright if we think it should be protected and if everyone needs to do it for it to be effective.  Half of the devices protecting is useless.  

This is the only way to do it.

    e. Alexander (con): Public voice not being heard in the formulation of the law.  No consumer representation.  SSSCA affects the way people use the content/devices.  The protections could end up stronger than the protections afforded by law.  Without public input, they could make the protections even stronger. 

   f. Cohen (pro): It would be good to repeal 1201 in favor of the SSSCA.  If Congress would be responsive to what people want in passing the standards. 

  g. Proposal: Amend to include repeal of 1201 with the bill.  Repeal anti-circumvention in favor of having this instead. 

  h. Warner: This amendment creates an invitation for crackers without any recourse against them.  Everyone agrees on one thing that everyone will focus cracking efforts on.

  i. Hall: Should keep 1201 and get rid of this.  This reduces incentive for creating new encryption technologies.  We’ll fall behind and the terrorists will win. 

  j. Vila(?): This doesn’t reduce general market for encryption technologies.  Can’t we limit what people can protect with these technical protection schemes?

 k. Blavin: Let the market create the technologies that we need.  Don’t institutionalize technology but make limits on the extent of technological protection allowed.

 l. Bradford (con): Not happy with act’s affect on fair use.  This act limits open source software. 

V. Is this bill a threat to hardward manufacturers? 

    a. Abelson: HP would want to know what was in the device.  Nothing in this standard talks about the cost of it. 

    b. Isn’t it harder to crack a closed system?  Abelson: the people who really know think that’s not true. 

   c. Pius:  All this is moot.  Make people agree to obey something that doesn’t exist yet. 

- this is common in cyber-stuff with Congress.  Because we can’t agree on the standards but we can agree that we need standards. 

- See HIPPA, create rules about creating standards for sharing health records.  Let a committee come up with how to do this.

  d. ??: Plenty of federal agencies do this.  This gives corporations development incentives.    

VI.  THE BILL FAILS even w/ Amendments.

VII.  Webcasting

     A. Zittrain on CARP – A case study

     Copyright bundle of rights in sound recording:

- Mechanical reproduction rights/ right to copy. Rights in creator.  Given to record company when you get a deal.

- Public performance right – doesn’t go to record company when artist signs with them. 

Held by ASCAP on behalf of the artists.  Radio stations need to get/buy permission from ASCAP (not the RIAA) to play song. 

     b. The webcast – Internet radio

          - Is it making a copy (RIAA mad)

          - Is it a public performance (ASCAP mad)

          - In 1998 Congress said “yes”.  It is both.

- What about radio stations who do both broadcast and Internet?  Do they have to pay both?  Probably.  But you might be able to qualify for compulsory license, which will be reasonable.

- Qualification for compulsory license: Adhere to performance complement.  Difficult restrictions.  Can’t play a lot by one person.  Can’t pre-announce what is coming up on playlist. 

- Why is performance complement in the law?

Tippet: to prevent people from copying stuff off of webcasts, which is pretty hard. 

- How is the amount of the license to be set?  Negotiate and fail.  Then convene the CARP

     c. The CARP

          - Parties all testified.

          - 3 person panel of judges.

          - Decision of CARP retroactive to 1998. 

          - New rates set every 2 years. 

     d. Discussion

1. Isn’t this the same as Napster?  What’s the difference? 

Tippet: This is harder to do.  You have to get special software and you have to trick it.  More difficult than Napster.  The software makers make it hard to rip.

Zittrain: There are some tools out there that let you rip stuff pretty easily. (supposedly).   RIAA likes this a lot.

2. CARP decided last week.  Decision was much closer to what RIAA wanted than what the webcasters wanted.  Should you have to pay for the copies you make as you prepare to stream them out. 

3. One interpretation is that it is meant to drive webcasters out of business to make room for the pressplays of the world.

4. www.live365.com.  Lets people put their playlists up for other people to hear.  Ostensibly each user covered performance complement.  Will probably be gone after the CARP decision. 

5. Is there an antitrust problem?  Maybe and the RIAA may try to keep some companies around to defend against this. 

     e. What does this mean?

- increasing clarification of the copyrights on songs.

- not the case that if you digitize it, you own it. 

- Sonny Bono Copyright Term Extension Act.  Eldred v. Reno; Eldred v. Ashcroft.  See: http://cyber.law.harvard.edu/eldredvashcroft

- Fairness in Music Licensing Act.  RIAA trying to get money from camps and restaurants for performance of songs.  Says how many speakers a restaurant can use to play music off the radio. 

- This is the end on property for us. 

FEEDBACK MEMOS:

 

1. What’s your biggest thought?  What’s on your mind right now? 

 

2. What question about the course do you have right now? 

 

3. Is there anything you want to say directly to the teaching staff?

 

 

 

 

 

 

 

 

 

 

 

Something else