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Monthly Archive for May, 2005

Avery’s Girl

Welcome to Camp Winona

Just spent fun times at Camp Winona on a Commonwealth School Retreat
Went for fifteen lattes in a little town nearby
talked in a wireless cafe until the lattes were ready
which took a time but that’s another story james milan to tell

then drove back to Camp Winona to deliver the lattes to Fern and her students learning how to do crosswords with her.

Camp Winona is incredibly beautiful place. Rain drops on the roofs of tents and cabins. Sunshine over lake and moutains creates god’s light.

The lattes were very well received and shared by kids in pairs buzzing together in the energy field of our little cabin room.


Avery was the first student I met on this retreat. I was walking through the woods by the lake when I came across him setting up a doll and playing cards on a picnic table for a camera shot. I stopped and offered to hold the cards so that in the close-up shot the doll would appear to be looking at her cards like a poker player. He shot it, then set and took another of the doll with her cards spread out before her, royal flush. Avery, tall, wearing a blue sweatshirt with NEVADA white across his chest, nice smile. Here’s a story inspired by the episode.

I’m leading an activity this morning playing poker.

Trajectory — SSET

I’ve been working on slides to help me capture the trajectory of our budding cyberschool in Jamaica.

Mangabeira — Again

This morning when I went to show Roberto the entry on my blog with our audio interview, to my complete bafflement the blog entry for Mangabeira is gone! Some genie in the bottle, computer gods once again at work. In any event here again, my interview with Roberto, who is running for the presidency of Brazil.

Here’s the short video that introduced Roberto to the Brazilian electorate, and Roberto’s description of his personal commitment to Brazil.

Connected Islands

Just went for this morning’s walk, with Ben Walker’s The Island audio in my ears. Hey Ben – thanks for laugh on laugh mixed with thumping insight. Truth and fiction mix as the thread of your story weaves back and forth between virtual and real. So much to learn from it, so much fun to listen to. I feel the way Gaugan’s friends must have felt about him, blessed to have his artistry. Thanks Ben. Thanks dubble dubbleyou for calling it a “must-listen, especially towards the end when he tries to buy an island of his own.”

Thanks to Kevin. His voice rings out like a bell, his message pure. Kevin contributes his philosophy of life to the middle segment of Walker’s Island.

So I walk, thinking in the moments when I am back from Walker’s world, “this is podcasting.” I pick up my iRiver, capable of both play and record, phones in my ear, out for morning exercise with Walker to look forward to. I can choose from a panoply of programs pre-selected by me for automatic download to my iRiver over night. The world could use a good video on just how to do it.

Grokster Manifesto

We have reached an inflection point in the history of information technology. For the first time Internet allows us to aggregate and distribute a universal public information, education and entertainment domain. Our capacity as individuals to generate and share useful and amusing content is a function of the number of creative people doing it, the affirmation they get from doing it, and the cost of the equipment needed to listen, express, connect, aggregate, integrate, archive, search, and distribute.

We can do that with resources right at hand.

Napster offered model of a searchable digital library open to distributed input and exchange. Grokster a weak cousin in terms of functionality it offers users. The idea that Law should protect one but not the other is ridiculous, based on ephemera beyond the pointer on the screen.

The lesson goes far beyond law of copyright. We are talking LAW writ large. We invite judges to help shed its corporate vestiges of babylon as it applies to open knowledge libraries. Grokster is a troublemaker for the dons of p2p. Our Code is Open, don’t you see. The Open Library of Knowledge will distribute p2p torrents of information seeded in a mirrored ring data bases rooted in time and space as firmly as engineers can plant them.

Our enterprise nonprofit. Wikipedia is a model. It’s structure’s strength lies in the ring of developing connections among its nodes, not in connection of the nodes to a center.

This differs critically from a for profit corporate model.

Oren Bracha

Oren spoke to a small gathering about the history of copyright. I had opportunity to ask his view on the core thread to my narrative understanding. Here is the Q&A.

How to Take a Law School Exam

On Friday last I taught a class on how to take a Harvard Law School exam. I wrote earlier, 4/25/05, about the request from Mary Weld to do this. Now it is done. Each student first wrote out an answer to an exam question. Here are audio clips and photographs to give you a sense of what followed.

zen flow
beware true statements
Read Out Loud to Firm Your Voice
organizational alternatives
How Best to Prepare
Fear is the Mindkiller
Play Poker

The Moment

David Nelson demonstrated the motorized couch in his M.I.T. dorm,
which also features the “pizza button.”

I ventured out last night to MIT to be present at the culminating moment of the Time Traveller event created by Amal Dorai, whom I had read about in yesterday’s New York Times. Here’s the story:

BOSTON (AP) — Attention, time travelers: Amal Dorai hopes you enjoyed the party he’s throwing this weekend. Dorai, a student at the Massachusetts Institute of Technology, is hosting a Time Traveler Convention on campus this Saturday. Make plans now, because it’s the last such party.

”You only need one,” he said. ”The chance that anybody shows up is small, but if it happens it will be one of the biggest events in human history.”

There’s no dress code. No need to R.S.V.P. Refreshments (chips and dip) will be provided.

Dorai only asks his guests to show proof they come from the future: Bringing the cure for cancer, a solution for global poverty or a cold fusion reactor would suffice.

In case MIT is long gone by the time a time machine is invented, Dorai’s invitation includes geographic coordinates for the East Campus Courtyard (42:21:36.025 degrees north, 71:05:16.332 degrees west).

To spread the word, Dorai asked friends to scribble invitations on pieces of acid-free paper and slip them into obscure library books. He is also giving media interviews and posting his thoughts on a Web site.

”The World Wide Web is unlikely to remain in its present form permanently,” he wrote. ”We need volunteers to publish the details of the convention in enduring forms, so that the time travelers of future millennia will be aware of the convention.”

Here is the moment.


time traveler

[email to Amal and Ike, cc to All]

Amal, Ike, permit me to introduce you.

Amal is the artist who created which you undoubtedly read about in the New York Times, May 7, 2005. He is being approached by media entities wanting footage and story. On listening to his story, I suggested that he needed an agent to represent him, and recommended you.

Ike is Boston’s leading Intellectual Property lawyer and literary agent. He understands that some times it’s best to let a talent out with minimal pecuniary impediment, sometimes even to let representation take shape and continue in the open.

Respects to Quinn

Global Voices

Grokster Challenge Part I

I. Legal Backdrop of p2p File-Sharing
The American copyright law statutory monopoly itself balances rights-holders’ and others’ interests. It recognizes no absolute right of a creator to control her work. Rather, accepting that sufficient financial incentive to stimulate creation is needed, it grants creators the alienable, exclusive rights of reproduction, distribution, preparation of derivative works, and public performance and display. The law constrains the monopoly by recognizing a range of uses from which society benefits for not having to pay. For example, the fair use defense exempts from copyright infringement uses such as criticism, comment, news reporting, teaching, scholarship, and research.
[-benefits like being vulnerable to lawsuit for using in your creative work the creativity of creators who have come before. In this field creatorswithoutlawyers are allowed to stand on the shoulders of giants only if copyright has expired. Thus is creativity humbled to the lord of commerce.]

Secondary liability is a common law doctrine, existing in two forms. It holds facilitating or supervising parties responsible for others’ direct infringements. It has never been explicitly codified by Congress.
[This is Grokster’s strong point, this law to appease established interests when dynamic new technology comes along should give way to Sony’s principle.]

Contributory infringement requires (1) knowledge of another’s infringing conduct and (2) causation, inducement, or material involvement. Vicarious infringement exists where one has (1) the right and ability to supervise the infringing conduct and (2) a direct financial interest.
[Now I’m getting lost in the numbers. I’ve got primary and secondary liability, that’s 2, with secondary split in two forms, to me that’s 3 but you get four, like your second split left behind some third part of secondary liability undivided.]
These doctrines impose liability on providers of two types of products and services.
[now this is getting silly]

The first type is products and services only used to infringe. The other type is those which could be used for both infringing and non-infringing purposes (“dual-use”). Because actors should not profit purely from enabling others’ law-breaking, liability is easily imposed on the first, but the proper legal treatment of the second is more debatable.
[Please, something save us!]

In Sony v. Universal (“Sony”), the Supreme Court first considered the applicability of secondary liability to dual-use technologies. Copyright holders Universal and Disney sued Sony, alleging contributory copyright infringement because consumers were violating the plaintiffs’ exclusive right of reproduction using Sony’s videocassette recorders (VCRs) to copy plaintiffs’ copyrighted films. The Supreme Court did not hold Sony secondarily liable, analogizing to Congress’ patent law “staple article of commerce” doctrine. Patent law policy is clear: the patent monopoly is granted in the public interest, and the patentee may not leverage it to create a second monopoly over dual-use goods. The Supreme Court, similarly, balanced the copyright holder’s need for actual protection of its statutory monopoly with others’ rights to participate in substantially unrelated areas of commerce.
[This last strikes me — others’ rights to participate in substantially unrelated areas of commerce. Would it be significant under this wing of Sony thought that Grokster is eating the Record Industry’s lunch! You raise an excellent question.]

The resulting test for contributory infringement held that a company was not secondarily liable for infringing uses of its product if “the product is widely used for legitimate, non-objectionable purposes. Indeed, it need merely be capable of substantial, non-infringing use.” Using this standard, Sony was innocent of contributory liability, since the VCR was capable of non-infringing uses such as time-shifting. The Supreme Court majority found it irrelevant that the VCR’s primary use was the unauthorized copying of copyrighted works. The Sony standard for secondary liability only became problematic as applied fifteen years later, following the genesis of p2p networks.
[So Sony’s primary use was for copyright infringement in a manner that treaded very lightly on the commercial as opposed to theoretical interest of the copyright holders, which the Supreme Court expressed by calling no underlying infringement, fair use to time shift, beachhead for the consumer, and if the alleged direct infringer walks on the charge, then the threat of secondary liability against the corporation that made it possible goes out the window. Nice. So now the task is to see how the principle of Sony cuts Grokster.]

A p2p file-sharing network facilitates direct file transfers between end-users, as opposed to a client-server transfer, in which the end-user downloads files from a central server.
[How is a p2p end-user different from a VCR time-shifter?]

The networks typically require three elements: a computer program connecting end-users to the network, a search mechanism to locate desired files, and a process by which requested file-transfers occur.
[Well stated, simple, profound, music just one small part of what can be passed around.]

Within the music file-sharing context, p2p was a response to the court-ordered closure of directly infringing client-server music distribution sites such as Such sites illegally made available large numbers of copyrighted files, which rendered them both readily targeted for lawsuit and easily shut down.

[Meaning that lower courts called them foul. But were they? We embody our Law Lord in our Supreme Court.]

Napster was the first large-scale, p2p response to these shutdowns; it consisted of both a product and a service. It left the files on end-users’ computers rather than hosting them on a central server. The product, software enabling connection to the file-sharing network, was available for download via Users running the software could connect to the Napster server to search for mp3 files available on the network. Once they found the desired files, they downloaded it directly from another user. Thus, Napster also provided a necessary, on-going service – the search function – via a central server over which it retained control.
[What is the principle on which the Napster court called foul? That a new business enterprise must do all in its power to protect copyright holders from infringement by users of the new enterprise’s … and here we split between product and service?]

This centralized service that was the focus of the recording industry suit against Napster for contribuory and vicarious infringement. The Ninth Circuit affirmed the lower court’s finding of liability on both counts. To evaluate contributory infringement, the court first looked to the element of material contribution. The court found the element satisfied by Napster’s provision of a centralized search server and its wherewithal to block infringing users or files from the network. The court then looked to Napster’s knowledge of infringement, subsuming Sony’s standard that technologies need merely be capable of substantial, non-infringing use into its knowledge test. The court held that the standard would absolve product or service providers of secondary infringement liability who had only constructive knowledge of direct infringement. However, those who had actual knowledge of infringements, such as Napster, could not claim the standard as a defense. Napster was also found liable for vicarious infringement because its central server gave it the right and ability to restrict distribution of infringing files on its network. Notably, the Ninth Circuit blurred the distinction between products and services in this case. The preliminary injunction that it affirmed was a recording industry victory that sounded Napster’s death-knell. However, it only marked the beginning of the scramble to succeed Napster.
[Did the Napster court consider at all the benefits that flow from serving content from a central server, or a ring of mirrored servers? Did the Napster court see Napster as a library?]

Soon on Napster’s heels came the Seventh Circuit’s Aimster case. Aimster distributed software that allowed users to connect to America Online’s Instant Messaging (AIM) network. The software expanded on the network’s ability to allow users to share files with their AIM “buddies”: it allowed members to designate the entire Aimster network as buddies. This allowed each user to search the shared files of all others. p2p transfers made use of AIM’s connectivity and Aimster’s encryption. Aimster generated its profit via a paid service called “Club Aimster”, which offered subscribers instant access to p2p downloads of popular songs for five dollars a month. The music industry’s suit for contributory and vicarious infringement was inevitable.
This case reached the Seventh Circuit, which affirmed as to contributory infringement, pointing to three factors. First, Aimster materially contributed to infringement through Club Aimster, which featured the forty most downloaded songs, all under copyright. Second, Aimster’s new-user tutorial made reference solely to copyrighted works. Aimster was liable for contributory infringement because it failed to provide evidence of non-infringing uses for its system of any magnitude. Third, the court dropped a bombshell: a dual-use technology’s capacity for substantial non-infringing use would be insufficient to avoid secondary liability. Rather, the dual-use system would need actual substantial, non-infringing uses, demonstrated by estimates of the respective magnitudes of non-infringing and infringing use. The court went yet further: to avoid contributory liability for dual-use products, developers would have to show that reducing or eliminating infringing uses would have entailed disproportionate cost. Aimster satisfied the knowledge prong of contributory infringement by virtue of its encryption technology, which the court saw as a purposive attempt at self-blindness. Finally, the court considered vicarious infringement an academic issue, for which it posed an unresolved question – whether, if infringement could be thwarted by change of system design, failure to do so could render defendants vicariously liable. It then ended Aimster’s brief existence by affirming the lower court’s preliminary injunction.
[Posner, observes that the sony principle as often stated lacks balance. He finds it in predatory practice. How does this line up with the interesting strand of Sony you identified?

The next generation of p2p file-sharing programs learned well the legal lessons that Napster and Aimster taught. Their redesign had major consequences in the next showdown.
[Now the lawyers are in charge. Engineering must now make it past the general counsel’s office. Like prodding dogs with sticks to make them vicious, making them take on the character of those who are prodding them. Napster, which was loved and killed, breeds Grokster.]