Interfaces on Trial 2.0
By Jonathan Band and Masanobu Katoh
March 2011
ISBN-10: 0-262-01500-5
ISBN-13: 978-0-262-01500-4

We live in an interoperable world. Computer hardware and software products from different manufacturers can exchange data within local networks and around the world using the Internet. The competition enabled by this compatibility between devices has led to fast-paced innovation and prices low enough to allow ordinary users to command extraordinary computing capacity.

In Interfaces on Trial 2.0, Jonathan Band and Masanobu Katoh investigate an often overlooked factor in the development of today’s interoperabilty: the evolution of copyright law. Because software is copyrightable, copyright law determines the rules for competition in the information technology industry. This book–a follow-up to Band and Katoh’s successful 1995 book Interfaces on Trial–examines the debates surrounding the use of copyright law to prevent competition and interoperability in the global software industry in the last fifteen years.

Band and Katoh are longtime advocates for interoperable devices but present a reasoned view of contentious issues related to interoperability issues in the United States, the European Union, and the Pacific Rim[. They discuss such topics as the protectability of interface specifications, the permissibility of reverse engineering (and legislative and executive endorsement of pro-interoperability case law), the interoperability exception to the U.S. Digital Millennium Copyright Act and the interoperability cases decided under it, the enforceability of contractural restrictions on reverse engineering;] and recent legal developments affecting the future of interoperability, including those related to open source-software and software patents.

About the Authors

Jonathan Band is an attorney who has written more than 100 articles on intellectual property and the Internet. He is an Adjunct Professor at Georgetown University’s Law Center.

Masanobu Katoh is the former head of the Law and Intellectual Property Unit of Fujitsu Limited, a global information technology company based in Japan.

You can purchase it at Amazon and other sellers, and also download a open access copy at MIT Press.

On Monday, September 21 (7:00pm, UWM Union Theater),  UW-Milwaukee’s Center for Information Policy Research and School of Information Studies is hosting a free screening of the Girl Talk-produced documentary Good Copy/Bad Copy. The film (featuring appearances by Girl Talk, Danger Mouse, and Lawrence Lessig) examines the state of copyright in today’s tech-savvy and dynamic remix culture. The film also features music by RJD2, Santogold, Girl Talk, Danger Mouse, Gnarls Barkley, De La Soul, and more.

The event will also feature a panel discussion and commentary by:

• David Bollier – Independent policy strategist, journalist, activist and consultant whose work focuses on reclaiming the commons, the effects of digital technology on democratic culture, and fighting the excesses of intellectual property law.
• Brad Lichtenstein – Award-winning documentary filmmaker, president of 371 Productions, and currently producing “What We Got: DJ Spooky’s Quest for the Commons”.
• Nancy Kranich – A former President of the American Library Association, Nancy focuses on the role of libraries in democracies by undertaking advocacy, civic engagement, and information literacy projects. A champion of the public’s information rights, she has spoken out against censorship, privatization, and other attempts to limit public access to vital information.

On Tuesday, September 22 (1:00pm, UWM Union, room 191), David Bollier, Brad Lichtenstein, and Nancy Kranich will reconvene for a panel discussion on “Copyright, Commons and the Struggle to Control Culture”.

Feel free to download and distribute our fliers for the film screening and the panel discussion. Please join us!

Apparently Chinese Internet users have grown so accustomed to downloading music online, that piracy and illegal downloading has impacted music sales there more than even what the RIAA claims to be such a huge problem here in the U.S. Relatedly, Google has been struggling to take market share away from Baidu, the leading Chinese search engine.

The win-win solution seems to be for the music companies to join forces with Google to create a free music download option for the Chinese market. In the deal, Google will start directing music searchers to Top100.cn, a Chinese Web site in which Google owns a stake, which will provide free downloads that have been properly licensed from music industry. Top100.cn will sell advertising on its website, and the music industry will reportedly earn 50% of that revenue. Google hopes to get increased search activity due to the lure of free (and better quality?) downloads.

The obvious question: if this business model is good enough for the 300 million Internet users in China, why not adopt a similar model for the 300 million users in the EU, or the 220 million in the U.S.?

Kutiman has taken existing YouTube videos of people playing music alone, sampled, looped, mixed and mashed them together to make absolutely amazing new music. Here’s a sample:

These songs are genius. They are original. Yet, most interpretations of existing copyright laws would conclude that Kutiman violated the copyrights of the original uploaders (however, perhaps some uploaded with a Creative Commons license?).

The spirit and original intent of copyright and fair use is to encourage creativity, and it would be tragic to think that Kutiman’s creations aren’t transformative in such a way as to be allowed under our current intellectual property regime.

It’s hard not to agree with the sentiments expressed at P2P News: “Copyright is an unethical constraint on society’s cultural liberty and those societies who choose to remain bound by it choose cultural stagnation and obscurity.”

Here is the introduction:

WHAT THIS IS

This document is a code of best practices that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances.

This is a guide to current acceptable practices, drawing on the actual activities of creators, as discussed among other places in the study Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video and backed by the judgment of a national panel of experts. It also draws, by way of analogy, upon the professional judgment and experience of documentary filmmakers, whose own code of best practices has been recognized throughout the film and television businesses.

WHAT THIS ISN’T

This code of best practices does not tell you the limits of fair use rights.

It’s not a guide to using material people give permission to use, such as works using Creative Commons licenses. Anyone can use those works the way the owners say that you can.

It’s not a guide to material that is already free to use without considering copyright. For instance, all federal government works are in the public domain, as are many older works. In most cases, trademarks are not an issue. For more information on “free use,” consult the document “Yes, You Can!” and copyright.cornell.edu.

It’s not a guide to using material that someone wants to license but cannot trace back to an owner—the so-called “orphan works” problem. However, orphan works are also eligible for fair use consideration, according to the principles detailed below.

The Code provides best practices in six key areas:

1. Commenting On Or Critiquing Of Copyrighted Material
2. Using Copyrighted Material For Illustration Or Example
3. Capturing Copyrighted Material Incidentally Or Accidentally
4. Reproducing, Reposting, Or Quoting In Order To Memorialize, Preserve, Or Rescue An Experience, An Event, Or A Cultural Phenomenon
5. Copying, Reposting, And Recirculating A Work Or Part Of A Work For Purposes Of Launching A Discussion
6. Quoting In Order To Recombine Elements To Make A New Work That Depends For Its Meaning On (Often Unlikely) Relationships Between The Elements

[via danah boyd]

The Electronic Frontier Foundation has an excellent page summarizing the MGM v. Grokster case and a complete listing of all the supporting court documents and amicus briefs related to the case. From their page:

EFF is defending StreamCast Networks, the company behind the Morpheus peer-to-peer (P2P) file-sharing software, in an important case that will be heard before the Supreme Court of the United States on March 29, 2005.

Twenty-eight of the world’s largest entertainment companies brought the lawsuit against the makers of the Morpheus, Grokster, and KaZaA software products, aiming to set a precedent to use against other technology companies (P2P and otherwise). As we noted in our arguments before the Ninth Circuit, the case raises a question of critical importance at the border between copyright and innovation: When should the distributor of a multi-purpose tool be held liable for the infringements that may be committed by end-users of the tool?

The Supreme Court’s landmark decision in Sony Corporation of America v. Universal City Studios, Inc. (a.k.a. the “Sony Betamax ruling”) held that a distributor cannot held liable for users’ infringement so long as the tool is capable of substantial noninfringing uses. In MGM v. Grokster, the Ninth Circuit found that P2P file-sharing software is capable of, and is in fact being used for, noninfringing uses. Relying on the Betamax precedent, the court ruled that the distributors of Grokster and Morpheus software cannot be held liable for users’ copyright violations. The plaintiffs appealed, and in December 2004 the Supreme Court granted certiorari.

“The copyright law principles set out in the Sony Betamax case have served innovators, copyright industries, and the public well for 20 years,” said Fred von Lohmann, EFF’s senior intellectual property attorney. “We at EFF look forward to the Supreme Court reaffirming the applicability of Betamax in the 21st century.”

For more about what’s at stake in the case, see:

• Tech Dodges a Bullet, by Fred von Lohmann [Law.com]
• Betamax Was a Steppingstone, by Fred von Lohmann [San Jose Mercury News]
• Oral Arguments before the 9th Circuit
  Audio: [WMA 10.4MB | MP3 16.4MB | OGG 16.5MB]
  Transcript available here, courtesy of Groklaw (February 3, 2004)

[source: The Trademark Blog]

The new Google toolbar adds links to content through a function named Auto-Link.  For example, it is my understanding that if an address appears on a webpage, a program in Google’s toolbar can create a link from that address to, perhaps, Google’s map service.  This has stirred some controversy, as it gives Google the ability to steer traffic off the page to one of its services or advertisers.

Does the third-party addition of links to content create an unauthorized derivative work or is it within the implied license created by making the content available?  Is it accurate to state that auto-link makes the html code work differently, in a way the original coder did not anticipate?  Or is this similar to, for example, copying text from a webpage – using browser functionality to act upon the html code?

Does the third-party addition of links to content constitute a false statement of endorsement of the ‘linkee’ by the ‘linker’?  Would the user understand which links have been created by the source of the content and which have been created by Google (and is that distinction important)?

Does the addition of links create unfair competition issues, under ‘sweat of the brow’ or ‘unjust enrichment’ theories?  In what way is auto-link different from a situation where, for example, the user cuts and paste text from the webpage into an auto-link window in the toolbar itself?

I tried out auto-link - the user has to voluntarily click an auto-link button – does this mitigate all confusion?

Some websites will appreciate the value-add, some won’t.  If the website can opt in or out of auto-link, does the problem go away?

Discussion from Micropersuasion, eWeek, Dave Winer, John Robb, News.com, Dan Gillmor and SearchEngineWatch.

Historical aside: Many commentators note the resemblance of the Google feature to Microsoft’s Smart Tags function of several years ago.