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.
Continuing its long-running (nine years! how slow are these people?) tradition of smashing blobs of mercury with hammers, the Cartel have forced the popular torrent-tracking site Oink to shut down. Dramatic police raids and exaggerated quotes make for good show, if nothing else.
You really should visit that page, if only for amusement value. Mmm, tasty waffles.
Not everyone is pleased that the site was taken down, least of all the reputed 180,000 members. DJ Rupture posted a thought piece mourning the demise of the site, which he found contained everything he had ever released. He thinks about BitTorrent and sites like Oink in terms of their relationship to music fans and music as a money-making business. It's a good read from someone who's in the business and gets that you can't win this war by smashing more and more blobs of mercury with bigger and bigger hammers.
First, Tom Krazit has a juicy blog entry in which he claims that "NBC wanted a cut of iPod revenue." He's reading mostly from a tip in Variety, the industry trade rag. Apparently, NBC really wanted "variable pricing" - a code phrase for 'charging more for popular items'. When they couldn't get that they reasoned that if Apple was going to use cheap downloads as an enticement to sell more iPods then they ought to get a slice of that pie instead. Yeah, right. I'm sure you can get Jobs to talk about that... oh, maybe right after you get the television set manufacturers to give you a cut of their revenue.
The second piece, by Greg Sandoval, takes a kinder look at NBC's hulu.com download site. He does note that it has a silly name, too few shows, and not much else. But Sandoval seems to be willing to grant that there's potential in the site. The big points seem to be "easy navigation" and "high quality" streams. Like, y'know, you'd get on iTunes. It also lacks a back catalog for people wanting to get into ongoing series. Like, y'know, you'd get on iTunes.
hulu is also free. Not even an ad to spoil the viewing experience. So NBC is spending a lot of money, or maybe it's getting money from MSN, AOL et al who are carrying hulu content. And they're not getting any revenue from downloads. Like, y'know, they'd get from iTunes.
The gist isn't terribly surprising - recipes get copied around a lot. Anyone who has ever been in the restaurant business knows that innovations are often quickly scooped up and duplicated. I've known chefs to dine at competitor's places while in disguise, to plant employees into rival chefs' kitchens, and other dirty tricks. So copying a recipe that someone posts on the Web is not a big shock.
There is real money involved here, in that some sites charge fees to access online recipes and many sites depend on traffic. If a copy of a site's recipe gets higher rankings on a Google search then it may divert traffic from the originator. All of which brings us back around to the question of what constitutes fair use. As I noted in the original discussion of Attributor, one of their major claims is to provide a platform on which such conversations may be constructed..
Recipes are particularly tricky to think about, as they're combinations of a fairly limited set of ingredients in fairly standardized ways. If I'm going to whip egg whites for my cake I'm likely to do it in one of about four ways, all of which are well-known. There are good physical chemistry reasons why I have to whip the whites and then fold in other ingredients - I can't simply reorder the steps. It's pretty clear that a simple list of ingredients isn't protected by copyright. Even if I find a new combination of spices to make my cake amazing, just listing that combination isn't enough to qualify.
Beyond that, cooking is very much a derivative art. Recipes and techniques get copied all OVER the place. Chefs learn their trades through long apprenticeships and often start by making close copies of things they learned from their mentor chefs, but with their own variations added. Attributor may be doing a good job of showing off its technology here but they're not adding anything to the discussion about what is or is not fair use of a recipe.
There's no magic here - he just did a lot of drudge work, digging up prior art, and some fundraising work, getting his blog readers to donate the USD 2,520 fee required to file the challenge. Yesterday the patent office issued a 17-page "reexamination document." This document does not comment on the original patent - it simply judges the validity of the patent's claims against the submitted prior art. That judgment found that two of the patent's main claims were not invalidated by the prior art, and that allowed three dependent claims to escape as well. The rest of the claims are disallowed.
Interestingly it appears that the invalidating evidence was not just public-domain literature, but actual issued US patents. Which means that both Amazon and the PTO did shoddy jobs searching through the patent database. Greg Aharonian of PATNEWS and others have been claiming for years that PTO searching is a joke when it comes to software patents - compare the prior art listings on your average biotech patent with that on a software patent. Stories like this can only add credibility to those accusations.
Aharonian adds a bit of detail
The PTO relied on two patents provided as prior art (which the PTO had been unable to find on its own): 5819034 (a one button ordering process for interactive TV) and 5729594 (online financial transactions with BUY button). Also used was a Newsweek article, and a prior Amazon patent.
It seems likely Amazon will appeal, as this can affect not only their settlement with B&N but also any ongoing licensing arrangements.
The RIAA has been handed a huge victory in its first-ever jury trial. Jammie Thomas is now on the hook for USD 220,000 at the going rate of 9,250 for each of 24 songs. The jury, according to Sandoval's CNET piece, didn't seem to care that she hadn't actually been proven to have shared the files.
This money and other monies extorted from customers is "reinvested" in the jihad. As Eric Bangeman reported for Ars earlier this week, that campaign is a big money pit. I'm totally unsurprised by this, having guessed as much many months ago. Bangeman thinks it's a 'bombshell" that the Cartel isn't making any money off of this and really has no idea how much money it's losing (if any) to file sharing. I think it's totally unshocking and the fact that they'd admit it in open court is just a measure of how confident they are.
So what we're left with is a potential appeal or possibly the Cartel offering to settle for a few pennies on the dollar. They're not getting a quarter-million from a single mom and they know it. But they never really expected to - what they want to do is punish, inspire fear, and intimidate. I'd say they won on all those counts.
Meanwhile, file sharing continues unabated. You don't change peoples' attitudes and behavior through punishment, fear, and intimidation on anything less than a governmental level, and maybe not even then.
For years now the Cartel have played it coy on the issue of whether they think it's legal for people to make personal copies of music you bought. Certainly the naive reading of the laws on personal backups and the like would encourage people to think they can make private backup copies of their own CDs. The alternative is that you ought to buy a copy of the CD for each car, computer room player, and boombox. And don't forget to buy another copy for every digital music player you want to download for, though most of the online stores explicitly let you use a tune on multiple players.
The Cartel has tried to have it both ways for years. You may remember that in MGM v Grokster, the RIAA agreed that it was OK to copy your own CDs, then promptly backtracked on that position in the Feb 2006 DMCA rule-making process.
This week we have Jennifer Pariser, the head of litigation for Sony BMG, testifying in Capitol Records, et al v. Jammie Thomas uttering this bit of... um, let's just agree to call it 'self-serving bullshit':
When an individual makes a copy of a song for himself, I suppose we can say he stole a song.
Eric Bangeman's piece for ars on the case, linked above, highlights what may be an interesting point, if the trial judge lets the defense pursue it: the RIAA is... oh, I need another phrase here, let's use "lying through its rotten teeth" about ownership of copyrights in the music it's suing people for sharing.
Ars has been publishing stories for much of the last few months pointing out that the Cartel has gotten sloppy and overreaching in these suits. Mostly they get by because nobody can afford to fight them in court and risk a big loss. But if there''s a dirty underside here, maybe we'll see a single mother from Brainerd, Minnesota, expose it.
