November 18, 2004  ·  Lessig

Senator McCain has become an important force for good in the land of IP extremism. I reported a hold he had placed on H.R. 4077 because of valid concerns about whether the freedoms it granted (to enable parents to filter “smut” from films) would be read to deny fair use in other cases.

The same careful eye has now caught a very elegant trap buried within the Intellectual Property Protection Act of 2004.

That bill adds some “Anti-Counterfeiting Provisions” to regulate counterfeit or illicit “labels.” Most thought its target was physical labels. But a careful reading revealed a real ambiguity in the statute, suggesting (as the MPAA believed) it regulated both tangible and intangible labels.

Why is that a problem? Well if the act makes it an offence to distribute unauthorized copies of labels, then there’s a very simple way for content owners to hack around fair use: embed a watermark into the content, and then any clip, even if fair use, would also constitute an unauthorized copy of a label. Thus, DMCA-like, what copyright law gives, this labeling law would take away.

Senator McCain is thus floating an amendment, to limit the regulation of “illicit labels” to physical labels only. And he has proposed a savings clause, which states:

Savings Clause.–Nothing in Section 2318 of title 18, United States Code, as amended by this title, shall be construed to restrict defenses or limitations on rights under title 17, United States Code, for a phonorecord, a copy of a computer program, a copy of a motion picture or other audiovisual work, a copy of a literary work, a copy of a pictorial, graphic, or sculptural work, or a work of visual art, that a genuine certificate, licensing document, registration card, or similar labeling component is (1) affixed to, enclosing, or accompanying, or (2) designed to be affixed to, enclose, or accompany.

Very nice work by a very careful Senator. The Justice Department had expressed similar concerns about an earlier version in March. But the Senator has now given those concerns real life.

  • Bruce

    Prof. Lessig,

    This is indeed good news. I am heartened to see Mr. McCain is enlightened on matters pertaining to copyright and electronic communication. I sincerely hope he will be able to fend off the efforts of Hollywood and their pet senator, Orin Hatch, to wrest control of the public domain from the rest of us.

    In other news, I’d like to point you to the current goings-on over at the WIPO copyright convention (the Twelfth Session of the Standing Committee on Copyright and Related Rights) currently under way in Geneva, Switzerland. The EFF is leading a group of NGOs in pressing the case for reasonable copyright treaties in the face of major commercial pressure. Several members of the committee, notably those from Chile and Egypt, appear to support their efforts.

    Interestingly, and not suprisingly, those efforts are not going unopposed. Some of their rivals have even taken to stealing, hiding, and trashing the documentation that the EFF and others have made available for the committee delegates.

    I bring up this off-topic subject because I hope that you will take notice and lend your considerable skill and influence to their efforts, and perhaps help publicize the same. You can read more about this at the EFF’s Deep Links page.

    Thank you,
    Bruce H.

    P.S. — I am not affiliated with the EFF, but I am an interested observer.

  • Max Lybbert

    While I am glad to see this, I’m truly amazed that a powerhouse like McCain has been vocal and willing to take up the cause. Perhaps less-well-known lawmakers will be willing to ge involved as well.

  • J. Toran

    As per usual, you and your cohorts can neither think logically nor even think in non-meme form, apparently, Dr. Lessig Inc.

    This legal mumbo-jumbo, this is your idea of “progress” and “progressive”, right Dr. Lessig…? Well, lemme explain a few things. Your attempt to pull “good-cop/bad-cop” and present McCain as one-a them thar rare birds, a human being that is a Republican, as opposed to the garden-variety-Neanderthal-types that most are..

    ..well, can you be a li’l less transparent next time?

    “Senator McCain has become an important force for good in the land of IP extremism.”

    Since you’d be the geographic center of IP extremism, you and your “friendz” might not-a noticed that you would be, logically, unable to:

    a) distinguish between forces of ‘good’ and forces of ‘evil’, because if you’re going to stoop to that level of non-thinking, you’d be the principles in the forces of ‘evil’ biz..

    b) distinguish between the public domain and the non-public domain, and the inherent values of each

    c) distinguish yourselves in your presumed domain of expertise, as well

    Sorry, but you THEN go on to prove my points:

    “Thus, DMCA-like…”

    Yes, the meme-non-thinking involved is palpable to those with a sense of smell. Your CC license was (and I assume still is) DESIGNED TO FORCE EVERYBODY AND EVERYTHING INTO THE PUBLIC DOMAIN.. not that you STARTED “freeculture.org”, right?

    So maybe you, Dr. Lessig, or one of your minions can tell me what it out of context here? I mean, other than Eric Norlin’s vested interest in the discussion, in what way is it logically incorrect and taken out of context, being as “EVERYBODY KNOWS” THE DMCA MEME?

    And if you DON’T care to reply to the question, perhaps you can explain why not?

    Or you can just go on with your pretense(s), Hortense(s)…;-D

    “I sincerely hope he will be able to fend off the efforts of Hollywood…”

    I see, anybody who wants paid would be fighting on behalf of Hollywood, right…)-;

    ?

    “The EFF is leading a group of NGOs in pressing the case for reasonable copyright treaties in the face of major commercial pressure.”

    That’d be the same EFF John Perry Barlow co-founded, the one that defends “our rights” of “freedom of speech” and the “right” to be “uncomfortable calling it [stealing] stealing” according to post by Brad Templeton to McCullough’s grandstand about a year back.

    The same EFF co-founded by one of the most intolerant bloggin’ website hosts on the entire planet?

    THAT EFF’n EFF?

    Great, I’m thrilled…)-;

    Hope they get their head handed to them, figuratively speaking… … … … … …

  • Matthew Saroff

    Gee, I’m thinking that bodazhang contributes more to this discussion than J. Toran.

  • Bruce

    Heh. Incoherent ad hominem attacks do not make for a good discussion. If Mr. (?) Toran would care to rephrase his diatribe, I’d be happy to respond. There is a preview button; he might do well to use it.

  • Philip Callan

    I think ‘J. Toran’ is this guy:

    James Jay Toran (jjt)
    President
    The Ohio Computer Systems Co.
    Columbus, OH USA
    E-mail: jt@ee.net

    And given his past behavior, he needs to tone his comments down, and learn to take a joke.

    http://www.freeke.org/ffg/humor/people/jt.html?setkarma=n

  • Alexander Wehr

    From seeing the blogged transcripts of that wipo meeting, my mind is now completely ridden of the idea that politicians, or the vast majority of the human species for that matter, is redeemable.

    One particularly disturbing (and disgusting) comment i read on the blogged transcripts was a reference to copyright as a “fundamental human right”.

    I want to know where that is written so i may burn all copies the document.

    Normal citizens (or We the people) are getting the same treatment in congress and at wipo as african americans received back in the 30′s (even in the 50′s and 60′s they were treated with much greater respect than people who want the right to tinker with their own electronics, computers, and media).

    With the level of intrenchment, it could be another 30 or 40 years of fighting before the world governments even consider the idea that copyright is a bargain with the public and not between two corporate sectors (CE & Content).

  • http://blog.qiken.org Heidi

    J. Toran: Your CC license was (and I assume still is) DESIGNED TO FORCE EVERYBODY AND EVERYTHING INTO THE PUBLIC DOMAIN.

    Hm. Now I understand why you called Lessig an IP-extremist. Personally, I think that before you start labeling someone’s position, it might help to understand it first. But that’s probably just me and my IP-extremist “friendz”.

  • Alexander Wehr

    I wander how often the point is brought up in the debates and lobbying on the public interest side that people desire to have their right to personal property.

    The hollywood lobbyists continually kick about words like “personal property rights” when they refer to copyrighted works.

    It seems to me that this idea should be extended to the public as well no? the public also has a right to personal property. This is the foundation of fair use rulings, the idea that, at the very least in their own home, people have a right to do what they want with their stuff, weather its their cable tv, or their video games.

    Under the DMCA, my modifying of my own Xbox console in my own home is considered “legally dubious”.

    i think the point should be continually driven home that the individual public is entitled to personal property rights, and, as the hollywood interest continues to repeat, the foundation of capitalism is the concept of property ownership. It should be secured, but for the public as well.

  • http://www.robmyers.org Rob Myers

    Your CC license was (and I assume still is) DESIGNED TO FORCE EVERYBODY AND EVERYTHING INTO THE PUBLIC DOMAIN

    There is more than one Creative Commons license. None of them have the effect of making the work public domain, or of forcing anyone to do anything.

    Creative Commons do provide a way of dedicating your work to the public domain if you so wish, but this is a separate service from their licenses.

    This page explains how the Creative Commons licenses work:
    http://creativecommons.org/learnmore

  • Max Lybbert

    Yeah, for the record, the Creative Commons licenses aren’t forced on anyone.

    If I write an amazingly well-argued paper, and wish to distribute it under a Creative Commons license, I have that choice. Just as I have the choice to not distribute it at all, or to distribute it only to people willing to pay me a set amount.

    The Creative Commons licenses just make it easier for me to write a license if I choose to not restrict end-readers.

  • alice

    i agrre!

  • jack the ripper

    At least J Toran doesn’t have to worry copyright infringement.

  • raoul

    �Since you’d be the geographic center of IP extremism, you and your “friendz” might not-a noticed that you would be, logically, unable to:

    a) distinguish between forces of ‘good’ and forces of ‘evil’, because if you’re going to stoop to that level of non-thinking, you’d be the principles in the forces of ‘evil’ biz..

    b) distinguish between the public domain and the non-public domain, and the inherent values of each

    c) distinguish yourselves in your presumed domain of expertise, as well

    Sorry, but you THEN go on to prove my points:

    “Thus, DMCA-like…”

    Yes, the meme-non-thinking involved is palpable to those with a sense of smell. Your CC license was (and I assume still is) DESIGNED TO FORCE EVERYBODY AND EVERYTHING INTO THE PUBLIC DOMAIN.. not that you STARTED “freeculture.org”, right?�

    Jesus Christ, are you incapable of putting two coherent thoughts together? What are you talking about? Please, for the love of god say something that makes sense!

    In any event, you find yourself on the wrong side of history my friend. You may even be evil, but you may just be too stupid to form intent required to form evil thought. It�s too close to call.

  • cjovalle

    Your CC license was (and I assume still is) DESIGNED TO FORCE EVERYBODY AND EVERYTHING INTO THE PUBLIC DOMAIN.

    Copyright law does that, actually. ^^ A few of the CC licenses just allows people to choose to do so bring it about in a more reasonable timeframe.