Digital Copyright Canada

Novell has filed 19 more motions in limine, all filed on February 8, for a total of 20, as well as motions for a Daubert hearing to disqualify Dr. Christine A. Botosan, Dr. Gary Pisano, and G. Gervaise Davis III, three of SCO's experts. The Novell motions in limine are mainly to exclude testimony from certain witnesses of SCO's "for lack of personal knowledge," among other reasons. Like Ed Chatlos. Remember when Judge Dale Kimball was on the case, and Novell filed motions to disqualify that same testimony? Well, now they are raising it again.

SCO has filed 5 motions in limine, but they are not described in the docket, and I haven't read them yet. We can read them together. But I see one of them is titled a motion asking that certain statements of Michael Anderer "as an independent contractor" be excluded. You remember Darl McBride's once longtime friend and business associate, Mr. Anderer, the man who said that proprietary software companies would keep suing Linux until they killed it? And they don't want the jury to hear about what Judge Kimball earlier ruled about who owned the copyrights, I gather. Well, would you, if you were SCO? And they want witnesses to be told they can't mention Groklaw. Say, what? Why would anyone ever mention Groklaw in the trial? I can't imagine any circumstance where that would happen. Anyway, jurors are told not to do outside research, so even if it happened, jurors couldn't visit Groklaw, not that they wouldn't find it enlightening, until the trial was all over.

In other words, as is normal in filing motions in limine, both parties are asking the judge to decide what the trial is going to be about, in essence, by determining before anything goes before a jury what evidence will be allowed to be presented. Of course, Novell has already filed a motion in limine pointing out that one of Judge Ted Stewart's earlier orders seems to provide the meets and bounds of the trial. If he grants that first Novell motion in limine, I think this list will get pruned. Should he not grant that motion, however, he faces all of them.

In SONY BMG Music Entertainment v. Tenenbaum, the RIAA has filed its opposition papers.

RIAA's memorandum in opposition

[Ed. note. As is their habit, and as their friends at the Department of Justice did as well, the RIAA's lawyers have ignored (a) all but one of the leading cases, (b) all of the leading law review articles and other scholarship, and (c) the actual contents of the Supreme Court's decisions. Fortunately these are contained in the amicus curiae brief we filed last year on behalf of the Free Software Foundation. -R.B.*-->

* Document published online at Internet Law & Regulation-->

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Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music playerTo contribute to Marie Lindor's legal defense, see below.

The above donation button links to a PayPal account established by Marie Lindor's family for people who may wish to make financial contributions to Ms. Lindor's legal defense in UMG v. Lindor. Contributions are not tax deductible.-->

The audio and video of the event is available in various formats below. More details and a transcript of Eben's speech will follow shortly.

Audio

Ogg Vorbis: Speech; Q&A

MP3: Speech; Q&A

Video

Ogg Theora: Speech; Q&A

H.264: Speech; Q&A

The oral argument of all of the pending motions in SONY BMG Music Entertainment v. Tenenbaum has been adjourned to February 23rd, at 3:15 PM:Judge Nancy Gertner: Electronic ORDER entered GRANTING [35] JOINT Motion to Continue Mtn Hearing....motion hearing reset from 2/16/10 to 2/23/10 at 3:15pm in ctrm #2, 3rd floor. Hearing will be held on MOTION for New Trial or Remittitur (Civ. Act. No. 07-cv-11446, document #26), and all pending motions. (Molloy, Maryellen) -->*-->
* Document published online at Internet Law & Regulation-->
Commentary & discussion:

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Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music playerTo contribute to Marie Lindor's legal defense, see below.

The above donation button links to a PayPal account established by Marie Lindor's family for people who may wish to make financial contributions to Ms. Lindor's legal defense in UMG v. Lindor. Contributions are not tax deductible.-->

• Access. E-books provide easy and instant access to huge numbers of books - especially books in the public domain. Whereas in the past you had to hunt for these, or, in more recent years, read them online, now they are portable on e-readers, which make them convenient and easy to read and carry around.
  
• Markability. Some e-readers give you the ability to write in the book without feeling guilty. This ability is really important for concentration, comprehension, and memory.
• Read-aloud. Some e-readers will read a book aloud. This is great if you prefer to listen to your books, and especially for the visually or reading-impaired.
  
• Storage. For travelers especially, e-readers allow you to carry around a whole bunch of books, easily. They free up shelf space. This is most important for libraries; e-books will allow libraries to offer many more books to their clients without straining storage space.
• Library books. Many public libraries now offer e-books that you can download online. They are easy to sign out without visiting the library, and easy to return: they just become disabled after the loan period ends.
  
• Competition. E-books offer some competition to regular books, which hopefully will have a positive effect on prices. There seems to be relatively healthy competition between online stores selling e-books, with the exception of cases of vertical tying, as I'll discuss further below.
• Newspapers and magazines. Many newspapers and magazines are available for the Kindle, while some - though fewer - are available at the Sony e-book store. E-subscriptions could create a new and much-needed revenue stream for newspapers and magazines - and, it's a very convenient way to receive them.
• Royalties. E-book vendors such as Amazon give a far greater percentage of royalties to publishers and authors than what authors recieve on print sales; Amazon just announced that it will offer, on certain conditions, almost 70% of the e-book sale price in royalties to its authors and publishers.
• Circumventing censorship. E-books can be made available even where print versions are banned. See this post by James Turner.
  

• Online E-books. Although many public libraries now offer e-books online, academic libraries seem to be slower to get on board. Unfortunately, many academic libraries have adopted only a type of e-books that can't be downloaded, but that can only be read using a browser in a special web portal. These, I have found, are almost useless in an academic setting: they can't be underlined, note-taking features are extremely limited, and printing is limited to a very few pages a day - so the articles can't be brought to class. HotBook agrees that this type of e-book is a disaster. So have my students.
  
• DRM. Digital Rights Management can be a huge pain for purchasers of e-books, without, it seems, being effective in preventing copyright infringement. DRM seems more effective as an anti-competitive practice than as a mechanism to prevent unauthorized copying; plenty of books are available through unauthorized sources online. Nevertheless, DRM puts up all kinds of barriers to access and convenience. With many DRM-protected e-books, you can't loan your book to a friend. Your e-book becomes tethered to your device - and possibly only certain devices so that, although you may have the capability of reading e-books on both your e-reader and your phone, the book you bought may be restricted to your e-reader device, unplayable on your phone. When you switch to a new device in a few years, you may not be able to take your books with you. Also, as happened to me recently, DRM can be glitchy. Some of my DRM e-books recently became disabled due to a bug in the library-book lending system. Cases like this are very frustrating. These factors could turn many off of e-books.
  
• Open Source Software. Many e-books are non-DRM and can be managed using open-source software. Not only is this software free -- it can also be continuously improved by the Open Source Software community. However, DRM e-books cannot be legally used in Open Source Software, meaning that you can end up stuck using whatever software your vendor happens to provide.
• Vertical tying. Many books are sold that only work on particular devices, preventing owners of Sony e-readers from reading e-books bought at Amazon, and preventing anyone without a Sony e-reader from buying from the Sony e-book store, for example. Here, DRM is used to force customers to buy particular devices and to reduce competition between e-book vendors.
• Disappearing e-books. Although it's great to be able to access e-books for free with ease from the library, the prospect of disappearing books seems to run counter to the technological possibilities and potential of the technology.
• Copyright term. The technological expansion of access to books coincides with the extension of copyright terms (the length of time that copyright applies), countering that expansion by blocking off access to books or making them only commercially available.
• Software limitations. The e-readers and software available now seem very rudimentary: note-taking functions are extremely limited; cut-and-paste functions are often disabled or laden down with copyright notices; and a lot of the software is simple, clunky and buggy.
• Format. E-books look OK, but they're not exactly beautiful. E-readers don't display colour at this point, and formatting can be a little wonky. Some e-books and documents can be hard to read, even for those with good vision. Limited formatting capabilities may limit the usefulness of e-readers for reading magazines and newspapers. The Apple iTablet offers itself as one exception.
  
• Accessibility. Universities have been working with companies to ensure that e-readers are accessible to those who are visually impaired. Although the read-aloud function available on some e-readers is a great step forward, it has been impossible for those who are visually impaired to properly navigate the menus and software functions of the device. Hopefully this will improve soon.
• Price of books. Many ebooks are very expensive - especially academic books. Taylor & Francis offers many of its books at the ridiculous price of $100-$200. When standards and technology are still in flux, and people change gadgets every two years or so, e-books that you purchase now may only be good for a year or two, either because they are tethered by DRM to your old device, or because standards have changed. Most people can't afford to spend that kind of money on a book that could expire or become incompatible in a year or two. It is especially ironic that academic books should be so expensive, when most academics neither need nor expect to make any significant money through publishing.
• Price of technology. E-readers are expensive. To large groups of people around the world, they are unaffordable. Mobile phones equipped with e-reading software are one less expensive option. See this post by James Turner.
• Jobs. E-books could change the employment landscape of the newspaper industry and the publishing industry as a whole - affecting especially those implicated in production and delivery. However, in the case of newspapers, this shift may have already taken place as a result of the online availability of news. In the case of libraries , if the provision of e-books is outsourced, as it now appears to be, library staffing - in cataloging and circulation especially, could change. This is to say nothing of the impact on brick-and-mortar bookstores. The current feeling seems to be that e-books will not replace regular books. Nevertheless, there will very likely be an impact.
  
• Environment. Although e-books save paper, the e-reader is yet another consumer electronic device that will be disposed of, create energy costs, and damage the environment.
  
• Troubleshooting. Who knew that you'd ever have to call IT to troubleshoot a book?

Imagine that you want to sue someone for what they wrote, anonymously, in a web-based online forum. To succeed, you'll first have to figure out who they really are. How hard is that task? It's a question that Harlan Yu, Ed Felten, and I have been kicking around for several months. We've come to some tentative answers that surprised us, and that may surprise you.

Until recently, I thought the picture was very grim for would-be plaintiffs, writing that it should be simple for "even a non-technical Internet user to engage in effectively untraceable speech online." I still think it's feasible for most users, if they make enough effort, to remain anonymous despite any level of scrutiny they are practically likely to face. But in recent months, as Harlan, Ed, and I have discussed this issue, we've started to see a flip side to the coin: In many situations, it may be far easier to unmask apparently anonymous online speakers than they, I, or many others in the policy community have appreciated. Today, I'll tell a story that helps explain what I mean.

Anonymous online speech is a mixed bag: it includes some high value speech such as political dissent in repressive regimes, some dreck we happily tolerate on First Amendment grounds, and some material that violates the laws of many jurisdictions, including child pornography and defamatory speech. For purposes of this discussion, let's focus on cases like the recent AutoAdmit controversy, in which a plaintiff wishes to bring a defamation suit against an anonymous or pseudonymous poster to a web based discussion forum. I'll assume, as in the AutoAdmit suit, that the plaintiff has at least a facially plausible legal claim, so that if everyone's identity were clear, it would also be clear that the plaintiff would have the legal option to bring a defamation suit. In the online context, these are usually what's called "John Doe" suits, because the plaintiff's lawyer does not know the name of the defendant in the suit, and must use "John Doe" as a stand in name for the defendant. After filing a John Doe suit, the plaintiff's lawyer can use subpoenas to force third parties to reveal information that might help identify the John Doe defendant.

In situations like these, if a plaintiff's lawyer cannot otherwise determine who the poster is, the lawyer will typically subpoena the forum web site, seeking the IP address of the anonymous poster. Many widely used web based discussion systems, including for example the popular Wordpress blogging platform, routinely log the IP addresses of commenters. If the web site is able to provide an IP address for the source of the allegedly defamatory comment, the lawyer will do a reverse lookup, a WHOIS search, or both, on that IP address, hoping to discover that the IP address belongs to a residential ISP or another organization that maintains detailed information about its individual users. If the IP address does turn out to correspond to a residential ISP -- rather than, say, to an open wifi hub at a coffee shop or library -- then the lawyer will issue a second subpoena, asking the ISP to reveal the account details of the user who was using that IP address at the time it was used to transmit the potentially defamatory comment. This is known as a "subpoena chain" because it involves two subpoenas (one to the web site, and a second one, based on the results of the first, to the ISP).

Of course, in many cases, this method won't work. The forum web site may not have logged the commenter's IP address. Or, even if an address is available, it might not be readily traceable back to an ISP account: the anonymous commenter may been using an anonymization tool like Tor to hide his address. Or he may have been coming online from a coffee shop or similarly public place (which typically will not have logged information about its transient users). Or, even if he reached the web forum directly from his own ISP, that ISP might be located in a foreign jurisdiction, beyond the reach of an American lawyer's usual legal tools.

Is this a dead end for the plaintiff's lawyer, who wants to identify John Doe? Probably not. There are a range of other parties, not yet part of our story, who might have information that could help identify John Doe. When it comes to the AutoAdmit site, one of these parties is StatCounter.com, a web traffic measurement service that AutoAdmit uses to keep track of trends in its traffic over time.

At the moment I am writing this post, anyone can verify that AutoAdmit uses StatCounter by visiting AutoAdmit.com and choosing "View Source" from the web browser menu. The first screenfull of web page code that comes up includes a block of text helpfully labeled "StatCounter Code," which in turn runs a small piece of javascript that places a personalized StatCounter cookie on the machine of every user who visits AutoAdmit, or else (if one is already present) detects and records exactly which cookie it is. That's how StatCounter can tell which visitors to AutoAdmit.com are new, which ones are returning, and which pages on the site are of greatest interest to new and returning users. StatCounter is in a position to track not only each user, but also each page, and each visit by a user to a certain page, over time. This includes not only the home page, but also the particular web page for each discussion "thread" on the site. Moreover, each post (even if anonymous) is marked with the time it was posted, down to the minute. So the plaintiff's lawyer in our story could go to StatCounter, and ask only about visits to the particular thread where the relevant message was posted. If the post went up at 6:03 p.m. on a certain date, the lawyer could ask StatCounter, "What if anything do you know about the person who visited this web page at 6:03 p.m. on this date?" Of course, if John Doe's browser is configured to refuse cookies, he wouldn't be trackable. But most web based discussion sites, including AutoAdmit, rely on cookies to let people log in to their pseudonymous accounts in order to post comments in the first place. In any case, the web is much less convenient place without cookies, and as a practical matter most users do allow them.

In fact, the lawyer may be able to do better still: The anonymous commenter will have accessed the page at least twice -- once to view the discussion as it stood before he took part, and again after clicking the button to add his own post to the mix. If StatCounter recorded both visits, as it very likely would have, then it becomes even easier to tie the anonymous commenter to his StatCounter cookie (and to whatever browsing history StatCounter has associated with that cookie).

There are a huge number of things to discuss here, and we'll tackle several in the coming days. What would a web analytics provider like StatCounter know? Likely answers include IP addresses, times, and durations for the anonymous commenter's previous visits to AutoAdmit. What about other, similar services, used by other sites? What about "beacons" that simply and silently collect data about users, and pay webmasters for the privilege? What about behavioral advertisers, whose business model involves tracking users across multiple sites and developing knowledge of their browsing habits and interests? What about content distribution networks? How would this picture change if John Doe were taking affirmative steps, such as using Tor, to obfuscate his identity?

These are some of the questions that we'll try to address in future posts.

Linus Torvalds is not Bill Gates.

He’s a programmer, and an honest man. So when he finds something he likes he says so, without artifice, and that’s all it means.

I hope people will understand that following Torvalds’ blog post extolling the Google Nexus One.

Apparently Linus has the same problem my son does (along with millions of other people). Directions are not his strong suit. So for him, Google navigation was a killer app.

Trouble is, in many ways Linus Torvalds is not “just a programmer.” He’s a brand name. He is, however reluctantly, a celebrity. So a simple blog post can read like an endorsement.

Put it this way. If Steve Ballmer picked one of the many Windows Mobile phones and said, “this is the one I like,” other makers of Windows Mobile phones might be upset. So he doesn’t.

Linus just did.

Google is trying to build a competitive ecosystem in Android, and Android is not the only Linux-based system in the mobile space. It’s like saying which one of your children you like best.

If you want to go the full paranoid on this one, you could even call Linus unpatriotic. After all, Motorola has staked its future on Android, and here he is making nice with a device from HTC, a Chinese company! (I know. Motorola has had its stuff made in China for years.)

This is as crazy as Jay Leno appearing in an ad for David Letterman’s TV show. It’s inconceivable! (I don’t think the word means what you think it does.)

Turns out the biggest surprise in the Oracle-Sun drama was not the split within open source over mySQL.

It was the split within Oracle over mySQL. (Picture from Oracle’s Collaborate 2007 event.)

Ken Jacobs, who was one of CEO Larry Ellison’s first 20 hires, says he is leaving the company after seeking to run mySQL and being turned down.

Jacobs gets credit for keeping InnoDB moving forward after its 2005 acquisition. This was a big win for open source.

InnoDB was an integral part of mySQL, and there were fears then Oracle planned to box-in mySQL by controlling its storage engine. But that didn’t happen, Oracle was able to claim open source bonafides.

Now Edward Screven, Oracle’s chief corporate architect, is in charge of mySQL, which could lead to the same fears expressed over InnoDB when Jacobs took it on.

Screven, however, also has some open source mojo. He was interviewed by Linux Foundation head Jim Zemlin in 2008, touting the company’s commitment to Linux. “We didn’t view GPL as something that was going to get in the way of business in the least,” he told Zemlin.

Trouble is that while Linux is an enterprise product, and has long had substantial server market share, mySQL began as something smaller and simpler, not scaled. The code base was moving toward greater scale before Oracle bought it, but during the debate even open source advocates like Matt Asay admitted it wasn’t a direct competitor.

This was always at the heart of the dispute. Would open source be allowed to develop a true competitor to Oracle? Would Web start-ups have to make a costly switch from open source as they scaled, or commit to open source in their business plans, raising costs substantially?

Internet success happens in Internet time. A start-up subsisting on pizza, even a small open source project, can be discovered by the masses and become world famous within a year. Will there be an easy migration path, or will that path be slammed shut?

Ask Edward Screven.

Paula Hunter will differentiate CodePlex from sites like Google Code and groups like the Linux Foundation by trying to bring enterprise IT shops into the open source mainstream.

Hunter was named the new executive director of the CodePlex Foundation late last week, and spoke to ZDNet Open Source.

The CodePlex Foundation is based in Seattle, but Hunter lives in New Hampshire and works in the Boston suburbs. That may prove an asset as Hunter works to distance the foundation from its roots as a Microsoft open source site.

“My responsibility will be to embrace the business community,” she said, adding she plans on hiring a technical director soon. She also plans to develop something like the old Open Source Development Lab (OSDL) user advisory board, covering a range of industries beyond software.

“One primary area we’re trying to focus is the commercial software development area, and certainly the east coast is not only a center for software companies but large enterprise IT shops,” she said.

Hunter is the foundation’s first employee. Even the permanent board of directors has yet to be named. This gives her enormous influence on the group’s direction. But she emphasized to ZDNet that the direction has already been set, and that her plan is to execute on it.

“It’s not necessary for one company to shoulder the burden of this effort. There are plenty of companies that can benefit. Over the next few weeks I’m going to create a program and set of benefits for those people we want to sign on board.”

The direction was described by Sam Ramji, a former Microsoft executive now with Sonoa Systems, when the new foundation was set up last year. That is, provide a way for Fortune 500 companies outside the software industry to make contributions, gain the benefits of open source, while maintaining some code control.

Andy Updegrove is pleased with the appointment, noting her work with United Linux and the OSDL, which was merged with the Free Standards Group to create the present Linux Foundation.

“Paula knows her way around the block,” he wrote, and most stories about the appointment emphasize she’s an open source “veteran.” This makes me feel old. Hunter got her degree from Bentley College in 1983, when I was five years into my own journalism career.

"Sensored" is a short-short story commissioned by the UK Open University's computer science department for use in My digital life (TU100), its ubiquitous computing course. It's licensed Creative Commons Attribution-NonCommercial-ShareAlike. I'm pleased with how it worked out, and I'm honoured to be a Visiting Senior Lecturer in the OU's comp sci department.

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John Taylor Williams is a full-time self-employed audio engineer, producer, composer, and sound designer. In his free time, he makes beer, jewelry, odd musical instruments and furniture. He likes to meditate, to read and to cook.

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