IPKAT (a great blog on European IP) has an interesting post about a scheme by Dutch DVD movie-distributors to avoid paying royalties. The scheme seems to sell and then buy back DVD-movies from consumers after they have viewed the films and thereby, since there is no sale, not have to pay a royalty.

The scheme is in limbo though because it was designed to be delivered over set-top boxes to televisions and steros and the hardware manufacturer has gone out of business.

One has to wonder how the European rental right would apply to such a scheme.

One also has to marvel at the continuing ingenuity of those wishing to withhold royalties from artists.

Fordham Law School professor Sonia Katyal has written an insightful article about the effect of strengthened copyright law in the digital age (the DMCA) on privacy. Professor Katyal analyzes the difference between privacy in the real world, which she posits is based upon "geographical" limits and their defense, and in cyberspace, where there are no such "geographical" limits.

Katyal claims that the increased private enforcement/surveillance powers awarded to copyright owners under the DMCA provide copyright owners with the presumptive power to limit fair use of copyrighted material and to access private information formerly protected through judicial oversight.

Furthermore, Professor Katyal proposes that the powers the DMCA grants have resulted in a panoptical surveillance system resulting in increased exposure of personal information and reduction of legitimate uses of and access to copyright protected material.

One of Professor Katyal’s more important analyses concludes that the potential effect of the DMCA and recent court cases in which she proposes that a computer user opening his or her computer to any third party (such as in peer-to-peer communication) forfeits the shield of privacy with regard to information residing on that computer's hard drive.

Given the tremendous resistance to certain provisions of the DMCA and the unintended consequences of that law, the recent hearings on H.R. 107 offer hope that Congress is revisiting this matter again.

Some choice statements Professor Katyal makes:

Lawrence Lessig's Free Culture struggles with the continuing antagonism between "property" and "piracy," which Professor Lessig proposes is our historical norm, without reconciling these two opposing tendencies. Thanks to Ernest Miller, I found Timothy Wu's trenchant Copyright's Communication Policy that attempts to explain the tensions in our copyright law and the struggle Lessig describes.

Wu's observant central premise is that American copyright history has been a story of two public policies - (i) providing author's rights and (ii) managing competition between disseminators - that ebb and flow as technology develops. Wu argues that historically, entrenched technologies (used by disseminators) are threatened by new technologies (and new disseminators) periodically.

The mature technology suppliers fall back on copyright as a method of preventing the new technology from utilizing its competitive advantage by denying content through strict interpretation of copyright law. The struggle continues until the Supreme Court sides with one or the other, and then (and only then) Congress acts to set forth a communication policy vis-a-vis the new technology. Generally, this legislative solution has taken the form of a compulsory license which makes the content available at a preset cost for new technology purveyors. His arguments echoes Clayton Christensen's The Innovator's Dilemma.

In light of Lessig's struggle with the current debate and his cry for a more rational basis of determining copyrights in order to insure the original Founders' intent, Professor Wu's framework is a rational basis on which to examine public policy, but requires earlier engagement by Congress as policy makers.

I finally finished Lawrence Lessig’s latest book, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. Professor Lessig, a leading light in the copyfight, posits some pressing points regarding copyright and culture in a digital world. But the book's message is confusing and unfocused.

Professor Lessig proposes a simple, but probably untenable solution, for what he sees as the core problem of an ever-decreasing – even disappearing – public domain of material from which creators can draw: reinstitute a modified system of required registration to receive the full measure of copyright protection.

He leaves unaddressed, however, the complaints he raises in the bulk of the book: corporations are utilizing technology and the law to alter the balance between seller and purchaser of cultural materials; one can utilize the American legal system to one's advantage if one has money; and our laws provide inadequate protection for individuals' rights in the intellectual property area because they are not practical for the average person. The book is also marred by conflation of arguments, fuzzy analogies, and, from a law professor, shocking misstatements about the law.

Despite his professed support for copyright and free markets, Professor Lessig proposes that digital technology has changed the nature of copyright and its interaction with culture to the detriment of our society:

EFF's Deep Links (Donna Wentworth) has a practical and useful article about protecting your privacy when using web-based mail services.

AP has now reported that Justice Scalia has done the right thing regarding the incident in which two reporters were accosted by federal marshals and told that the Justice does not permit recording of his speeches.

A schocking story involving Supreme Court Justice Antonin Scalia was reported several days ago and I have been watching to see if it is picked up and further reported by mainstream media. Today's NY Times has an opinion piece outlining the events, but does not opine on the true import of Scalia's actions.