Cary Sherman, Lewis Hyde in Chat about RIAA's AntiPiracy Campaign

Cary Sherman, president of the Recording Industry Association of America, participated in a web chat about the RIAA’s new Anti-Piracy Campaign on US university campuses — sending pre-litigation notices to digital natives accused of illegal activity on peer-to-peer networks, which the universities are asked to pass along to the students.  The Berkman Center’s Lewis Hyde tossed in a question.  Here’s Lewis’s question:

“The recording industry regularly asks colleges to police their students in regard to infringement. Why is it the task of colleges to do this police work, rather than the police?

“Sharing files over the internet is not illegal per se; that depends on what’s in the file and on what it is being used for. An accusation of music piracy is not a proof of music piracy: questions of evidence, and of fair use, and of educational exceptions to infringement come into play.

“If colleges ‘pass along messages’ that direct students to ‘pay lump sums to record companies,’ colleges become an arm of the recording industry, bypassing their educational role (teaching about fair use, for example) and bypassing legal due process, if in fact there is a criminal charge to be made.

“For these reasons I believe that colleges should decline this RIAA request. How would Mr. Sherman respond to the background assumption here, that the industry, the colleges, and law enforcement are distinct institutions, and that there is good reason to keep their separate roles clear?”

Go here for Mr. Sherman’s response.

Apache, Sun Tangle over Licenses

The Apache Foundation is accusing Sun of holding out on a license related to a Java test kit. In an open letter, Geir Magnusson Jr of the Apache Foundation says to Jonathan Schwartz, the Sun CEO:

“Since August 2006, the ASF has been attempting to secure an acceptable license from Sun for the test kit for Java SE.  This test kit, called the ‘Java Compatibility Kit’ or ‘JCK’, is needed by the Apache Harmony project to demonstrate its compatibility with the Java SE specification, as required by Sun’s specification license.  The JCK license Sun is offering imposes IP rights restrictions through limits on the ‘field of use’ available to users of our software.

“These restrictions are totally unacceptable to us.  As I explain below, these restrictions are contrary to the terms of the Java Specification Participation Agreement (JSPA) – the governing rules of the JCP – to which Sun is contractually bound to comply as a signatory.”

Interoperability in the software context — especially the free/libre/open source software context — so often turns on field of use and similar provisions in the relevant intellectual property licenses.  Sun has been a huge supporter of the open source movement in many ways, so Mr. Schwartz certainly knows this.  One wonders whether this decision, presuming Apache’s claims are true, to deny such a compatible license was a high-level policy decision or one that just hasn’t been run past the right person at Sun.  We’ll find out, I suppose.

iTunes and EMI Breaking the DRM Barrier

Good news from Steve Jobs, Eric Nicoli, and company: EMI’s music now to be available without Digital Rights Management. A great move for consumers, innovation, interoperability and, one hopes, creative re-use of digital works. (Cory Doctorow at Boing Boing has the definitive post and list of links. Cory suggests that we help out with a thank-you gift for Mr. Jobs.)

Wendy Seltzer Puts the NFL on Notice

Berkman fellow (and Brooklyn law prof) Wendy Seltzer is challenging the NFL in an educational video she’s posted to YouTube. The NFL has now twice filed cease-and-desist letters to get the video taken down, and twice YouTube has complied. The content of the video makes the critical and educational nature of Wendy’s posting, plus her claim of fair use, to anyone who actually watches the video. Query as to whether the bots that generate C&Ds, or those who unleash them, actually watch the videos. Fair use should get a good hearing as a result of this exchange, whether through a DMCA 512(f) proceeding or otherwise. Wendy says her clip is “clear fair use,” but there’s no easy way for you to judge for yourself right now, since it’s taken down.

Professor Mary Wong on Intellectual Property Rights and Rhetoric, with Nesson as Interlocutor

Professor Mary Wong of Franklin Pierce Law Center is here today at the Berkman Center. Mary’s talk is a series of provocations about language. She’s taking on the trope of the individual author. She is of the “dualist school,” that there’s a minor, but existing solution to do more with natural rights-type reasoning than the United States utilitarian framework that undergirds our IPR system.

Professor Charles Nesson, the Berkman Center’s founder, who thinks a lot about the rhetorical frame, put it nicely: Mary honed in on both the stability and the fluidity of the rhetoric around intellectual property rights.

The single greatest problem in US law in this area, Charlie says, is that the burden of proof in fair use falls on the person re-using the work, not on the person asserts her or his underlying right.

What could we do, Charlie asks? We could think about universities as a client, and law reform as our tactic. What if we were to take up as a cause a shifting of the burden of proof in the fair use context.

Ethan Zuckerman pushed back on Mary’s suggestion that the Universal Declaration of Human Rights might be a good model in terms of language for reframing of the rhetoric around IPR. It’s a shaky foundation, EZ argues, kind of like trying to build community in Palestine. EZ says that Mary is spending her time in the aspirational zone, not in the real world. What is it that we actually do, EZ wants to know? In universities, we find texts we like and xerox them and give them to students, for instance (not at the Berkman Center, of course, but…). We should work from there and try to get to a legal regime that works, says EZ.

If you’ve missed her talk in real-time, please find it at MediaBerkman.