Hello, it’s me again.

I’ve been kind of busy over the last few weeks. Mainly, this is due to City of Heroes having slurped up my brain. I’m having great fun playing some characters on the Victory server; I may go into more detail about that down the line.

What I want to talk about right now, though, are a couple of copyright matters that have been on the horizon lately—one pretty good; the other possibly not so great.

But victories first. Not long on the heels of the garage door DMCA decision comes another DMCA victory. It seems that an appeals court has slapped printer manufacturer Lexmark down in a resounding legal decision that goes a long way toward remedying some of the problems with the DMCA.

The case in question involved Lexmark trying to use the DMCA to protect its monopoly in selling ink cartridges for its printers. In order to forestall competition from other manufacturers, they incorporated a security chip into their cartridges…and then sued an ink cartridge manufacturer under the DMCA when they reverse-engineered the chip to sell their own cheaper refills. I haven’t read the whole decision, but the paragraphs of it that were quoted in this Ars Technica story were quite forceful; the judge did everything but call Lexmark “you idiots”—not only was the competing manufacturer’s action not covered by the DMCA, but even if it had been, it would still have been permissible as fair use.

This is certainly a victory for opponents of the DMCA, and will hopefully provide a good precedent in deciding further questions of fair use vs DMCA. I think my favorite part, though, is where the judge is discussing the dangers of using the DMCA to support monopolies, and says,

But we should be wary of shifting the burden to a rival manufacturer to demonstrate that its conduct falls under such an exception in cases where there is no indication that it has any intention of No. 03-5400 Lexmark Int’l v. Static Control Components Page 22 pirating a protected work. See, e.g., Lawrence Lessig, Free Culture 187 (2004) (noting the danger that “in America fair use simply means the right to hire a lawyer to defend your right to create”).

Yes, that’s right, the IP judge quoted that book I mentioned in an earlier entry. It’s nice to see that at least one IP judge is aware of the contents of that work. (You should go and read it right now, if you haven’t already. It’s free, and I firmly believe it may be one of the most important books about copyright ever written.)

I wonder what Lawrence Lessig will say about the other bit of news I have to mention today. Not content to be on the losing side of the battle over the parody The Wind Done Gone, the estate of Gone With the Wind author Margaret Mitchell has sent a threatening letter to Project Gutenberg. It seems they’re upset that Gone With the Wind is available from Project Gutenberg Australia’s website, since the book is in the public domain in Australia but not in the USA.

Naturally the Slashdot crowd is up in arms over this. I’m just not sure, though. On the one hand, the Mitchell estate has a point—under the law, Gone With the Wind shouldn’t be publicly available to Americans. However, it should be available to Australians under Australian law. The problem is how to make sure that only Australians have access to it.

Before the Internet, this wouldn’t have been a problem; Australian publishers could print new editions of the book for free, but not market them in the USA. Now, though, the Internet makes any content available anywhere to anyone, more or less—and though there are ways to attempt to block access to people not within a certain country, these methods can usually be trivially defeated (as another new story this morning illustrated—George W. Bush’s campaign website has been blocked to visitors from outside the USA but accessing it anyway is as simple as using a proxy). It really is as EFF founder John Gilmore said: “The Net interprets censorship as damage and routes around it.”

This isn’t exactly a new situation. For years, Gutenberg has had some books up in certain countries that were not yet out of copyright in other countries. Lady Chatterley’s Lover, for instance (public domain in the USA, not in England), or the works of Kipling (ditto), or the later John Carter of Mars books by Edgar Rice Burroughs (like Gone, public domain in Australia but not the USA). When I first saw this, I wondered how Gutenberg could “get away with it,” since even then I knew that the Internet would let people anywhere access the files no matter whether or not they were “supposed to.” What is new is that someone’s finally noticed and, apparently, decided to put the situation to a legal test.

In their letter, the Mitchell estate claims collusion between Gutenberg and Gutenberg Australia—in effect, that Gutenberg set up Gutenberg Australia as a way of getting around American copyright prohibitions. This could mean that, even though the server is in Australia, the estate would try to take the American Gutenberg organization to court over it. I don’t know how closely connected the American and Australian Gutenberg organizations actually are, but it will be interesting to see who turns out to have jurisdiction—as well as what gets decided.