Here we'll explore the nexus of legal rulings, Capitol Hill
policy-making, technical standards development, and technological
innovation that creates -- and will recreate -- the networked world as we
know it. Among the topics we'll touch on: intellectual property
conflicts, technical architecture and innovation, the evolution of
copyright, private vs. public interests in Net policy-making, lobbying
and the law, and more.
Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.
Classically, the definition of insanity is doing the exact same thing over and over, expecting different results. By this definition the Cartel's jihad against sharing is insane. They've sued thousands of consumers into a vile kind of mutual embarrassment, and a couple dozen companies into bankruptcy. Yet sharing continues unabated. Some would say it's on the rise.
So if we postulate that the Cartel are neither stupid nor crazy, the question remains: why are they pursuing a strategy that is not only failed but clearly counter-productive in simple cash-value terms. (Of course one could ask the same question about the US's War on Drugs or various other governmental policies, but this is Copyfight, not Big Politics, so we won't ask those questions.)
For an attempt at some answers we now have a nice think piece by Greg Sandoval on news.com. He notes the usual facts, plus this week's addition to the "Copyright Graveyard" - TorrentSpy and IsoHunt, which agreed to block links to copyrighted material as part of an apparent attempt to stay the hounds at the legal door. Sandoval then turns to the question of why the Cartel continues to pursue an adversarial legal strategy.
One possibility, which the Cartel would like us to believe, is that they have a secret and very coherent plan to sue everyone into obedience. See above where we ruled out the possibility that they are in fact this stupid. Moving on.
A third possibility is that this is really a battle for control. Lawsuits are more or less rear-guard and distracting acts. The true agenda is for the Cartel to get the final say in what behaviors people can and cannot have. Ira Rothken, the lawyer representing TorrentSpy, points out that the Cartel have gone from suing hosts to suing software makers to suing network and link providers. If the original commandment was "Thou shalt not share" then the current incarnation is "Thou shalt not point out that someone else is sharing." That's a pretty scary reach and Rothken might be right. Or it may be that the Cartel are just evolving in their understanding of how sharing happens.
Finally, and most frighteningly, it's possible that the Cartel are gambling on a very large jackpot. Statistically speaking, if you bring enough cases you're going to get some judges that favor you. And one day, one of them is going to issue a far-reaching order like the one Chooljian put out in the TorrentSpy case. And if something like that happens, you can then run with it all the way to SCOTUS if need be. If something like that becomes the law of the land then the Cartel will have won the jackpot and all the money it has spent in lawyer's fees since Napster will be thought of as a prudent investment.
You may recall that Vista contains the first commercial incarnation of MSFT's built-in control facility for restricting what programs and data can be installed and run on PCs. Virtual machines can unintentionally fool, block, or thwart various of the checks that DRM software uses. Lai references unnamed "analysts" to suggest that concerns over DRM circumvention were behind Microsoft's sudden change of heart. Apparently they were about to relax the prohibition on virtualizing Vista Home editions then suddenly stopped.
Fisher thinks it's a step in the Microsoft-Apple war, with MSFT trying to defend its OS revenue stream. Could be. I do think Fisher's points are telling, to the extent that those of us who care about DRM and what Microsoft are doing in that area can safely ignore the virtualization debate.
As part of the deal they are supposed to give free air time to independent artists, presumably to make up for these artists being shut out by the pay-for-play scheme. However, "free" is a word that Clear Channel doesn't seem to understand. In order for artists to get their submitted MP3s into consideration, they have to sign away all rights to the track. To Clear Channel. Forever.
According to the NPR story broadcast (the only coverage I could find on this) some artists are taking the deal with the devil, figuring that the loss of one song is nothing compared with the promised land of big riches that will come from exposure on the conglomerate's mass of broadcast stations. Others aren't so happy with the prospect.
Personally I don't understand how a performer could accept this. Imagine getting popular for a Clear Channel-played tune then having to explain at every performance that you can't play that song people know you for because you no longer own the rights to it. And it won't be on your forthcoming CD either...
So far a number of big participants have signed up, including Live365, AccuRadio, and RadioParadise.
Most interesting to me is the broad spectrum of participants, ranging from the Christian-rock conservative Born Again Radio to the aggressively liberal Head-On Radio Network. This really is a case of the big corporate purse-holders crushing the small and independent, across the political spectrum.
Back in 2001, the US Supreme Court issued a decision in a case called New York Times v. Tasini. In this decision the Court ruled on rights of freelance photographers such as Tasini to control or be compensated for works (photos) that were sold for one purpose, such as print, and ended up in an archive later to be used for another purpose such as CD ROM publication.
Now of course the Times wasn't the only entity doing that. Prominently the National Geographic published a CD ROM archive and promptly got itself sued by several people who felt their works had been used in unauthorized and/or uncompensated ways. Because of the locations of these suits a couple ended up being settled in different US Circuits. For this discussion consider the Second and Sixth Circuits
In a 2001 decision known colloquially as Greenberg I (formally as Greenberg v. National Geographic Society I, 244F.3d1267) a panel of the Sixth ruled in favor of photographer Greenberg, holding that the Geographic's archive violated his rights. However, the Second had ruled the opposite way in other cases against the Geographic, basically saying that what the magazine had done was legal and no further compensation was due.
In the normal course of things rulings at the Circuit level stand, even when they're in conflict, until SCOTUS issues an opinion that resolves the differences. In fact, conflicting Circuit opinions are a major factor in the decision to grant review of cases that are appealed to SCOTUS. It's also possible for a full Circuit court to reverse one of its own panels, potentially resolving the difference. The Sixth has not done so, possibly because the judge who wrote the Greenberg I opinion is regarded as something of an expert on copyright law. So far so good.
Now comes the curious case: earlier this month in an opinion informally called Greenberg II (formally Greenberg v. National Geographic Society II, 97-03924-CV) a different panel of the Sixth reversed the earlier panel, pretty much to everyone's surprise. "Curious" is polite lawyerspeak for what you and I might dub "WTF"? WTFF?
First off, the new panel of the Sixth includes a visiting judge from the Second, who wrote the new decision. That's a bit odd.
Second, the rules of the game as it's generally played are that one panel of a Circuit is bound to abide by (and certainly not overtly reverse) previous panels' opinions unless the full Circuit or SCOTUS has something to say on the matter.
Which brings us back around to Tasini. According to McDonald's column (I haven't read the original opinions) the new panel claims to be relying on SCOTUS's reasoning in the Tasini case. If they're right, that case gives them grounds to overturn Greenberg I. But here's where it gets more curious. McDonald quotes several intellectual property lawyers as saying that Tasini really isn't on point here. It's dealing with a separate set of facts. And to make matters even more curious the judge in Greenberg II appears to be relying not on the formal decision of Tasini itself but on explanatory comments (called 'dicta') that the Greenberg II judge feels give "tacit approval" to deciding the case in favor of Geographic.
So what happens now? Well, Greenberg could throw in the towel. It's six years on and he hasn't seen a dime - a 2004 judgement of $400,000 led to the appeal that was decided in Greenberg II. I hate to think how big his legal bills are by now. If he soldiers on there's an obvious appeal to an en banc Sixth and who knows how that will turn out. If it goes against Geographic it seems likely they'd ask SCOTUS for a ruling that would presumably clarify the disparate Circuit views. However, the Court denied certiorari on Greenberg I so they might not take this one, either.
Fisher's posting dissects recent pronouncements by NBC general counsel Rick Cotton, who apparently feels that it's misguided for law enforcement and the FCC to focus on actual real crimes. Instead these public servants should be serving the interest of the corporate profit margin by focusing on (drumroll please) piracy!
Oh, and that silly net neutrality thing? That's not needed either. Just shut down all those pesky individual users and small sites - they're nothing but pirates anyway. Once they're shut down, net congestion will magically disappear and NBC will be free to shove its content down big empty pipes at all of us.
And of course, ISPs should all be joining ATT in its war on customers... err, pirates. Maybe if we say "piracy" often enough it'll drown out the hollow booming of empty heads making noise.
Also, lax copyright laws, laissez-faire law enforcement and LOTS of bandwidth. Anyone? "What is Stockholm?" Correct!
Once upon a time, the Cartel made a big noise and destroyed Napster (1.0). I pointed out then that people shared music before Napster and would do so long after it shut down. Points to me for stating the obvious. Now Andy Greenberg is trying to state the same obvious truth in respect to the sharing of movies and other digital media.
His story for Forbes highlights the boasts of BitTorrent repository ThePirateBay.org, which trumpets the many benefits of being hosted in a non-US location. Here in the US the Cartel may have its armies of lawyers and Congressional sock puppets. Over there, they get mocked.
Greenberg's point is what I've called "smashing mercury with a hammer" - the Cartel can swing a big hammer and make a dramatic flash when it lands a blow but the end result isn't an end to sharing. It's just a scattering of the same material around to new locations. The Cartel can sue YouTube/Google until its lawyers retire fat and happy but that won't matter one iota to all the YouTube clones that are popping up faster than any one case can progress through a court system.
This arms race was lost nearly ten years ago, but the Cartel soldiers on pouring money into lawsuits and technology that three high school kids can defeat as a summer project. Imagine if they'd put those resources into building new business models and winning customer loyalty instead. Anyone? "What is drwex's fantasy outcome of the Copyright Wars?" Correct.
The implications of this are potentially staggering and the order has been stayed pending appeal. Part of the complaint here is that this ruling would force defendants to create documents they would otherwise never have. That alone is unprecendented, to my knowledge. Additionally the implications for the use of all kinds of digital services are huge. Imagine applying this kind of logic to VoIP RAM traffic - who needs to bother with all that complicated paperwork for getting a wiretap?
Much of the concern is over the privacy implications. Many services, from FedEx and AmEx to Internet registrars offer the ability to do business transactions without revealing personal information. Entire businesses exist purely to act as trusted third parties so that people can be confident and confidential at the same time. If this ruling is upheld all that goes into the dumpster.
And while there are some standards to prevent discovery proceedings from turning into open-ended fishing expeditions, those standards are much looser and less subject to review than requests for subpoenas and other current legal methods of obtaining information in an adversarial proceeding. Creating this weapon of mass discovery would have the side effect of weakening all of those protections.
(In an interesting aside, the CNET story notes that the USD 2 billion figure of losses from online activity is merely an MPAA estimate, not the 'fact' that the LA Times story made it out to be. Shame on the Times for shoddiness - maybe they can take lessons from CNET.)
The article is teeth-grindingly sycophantic towards the Cartel, using phrases like "Few doubt that piracy is a significant problem." Actually, most people doubt it, if they even think about it. I venture to guess that if you asked the average person they don't think that sharing is a major problem. The story also quotes nice big numbers for "losses" to "online piracy" without ever sourcing the numbers nor bothering to tell us what "losses" mean when you're not describing the sale of faked DVDs.
Bah, I'll expect Ars Technica or someone similar to do a better job with the story, hopefully soon.
Long-time readers of this blog may remember more than a year ago when I started listening to Howard Stern because he seemed to be the FCC's favorite whipping target, including being subject to hidden standards, retroactive censorship, and other such idiocy. Regardless of what you think of the man or his show, I expect you'd agree no one should be subject to that. Part of Stern's frustration and what drove him to satellite radio was that his then-employers wouldn't stand up to the FCC for him.
Well, according to Mark Stern's blog on PC World, Fox Broadcasting has done what Viacom wouldn't and gone to bat for bad words. Specifically, the use of "fleeting" expletives. The judge agreed that the FCC's policy made no sense and was probably unconstitutional. Yay! Now to wait for the appeal.
The blog "The Consumerist" apparently has its readership vote for the worst company in America. The blog writers then suggest ways to improve the customer service at the nominated company. Why do I know about this? Because this year, the readers picked as worst the pointy end of the Cartel's jihadist sword: the RIAA.
Of course, the RIAA isn't really a company, it's a trade organization. And customer service really isn't on their agenda. What is on their agenda is passing favorable legislation, like laws creating the crime of attempted piracy. In order to pass laws, you need sock puppets... excuse me, members of Congress. Who, in turn, need money. Lots of money, something the RIAA has and gives out.
The amounts listed are really surprisingly low - Orrin Hatch got a mere USD 6000, a pittance for this once-powerful sock puppet's dutiful service. There are also some disturbing names on the list, such as Ed Markey, whom I'd expect to have better sense than to accept money from extortionists.