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.
Jennifer Urban of USC's Intellectual Property Legal Clinic and Laura Quilter of UC Berkeley's Boalt Hall have released a summary report examining over 900 DMCA take-down notices collected from the Chilling Effects project. The report finds that nearly 1/3rd of all notices are improper and potentially illegal. The full report will be out in March 2006.
Want to time-shift your satellite radio? Forget about it, according to the RIAA -- they want to make such practices illegal. As I previously suggested, the real agenda of the RIAA is not just P2P, but Me2Me technologies that allow you to move music from one format to another. Check out the Reuters article (Record labels, satellite radio seen in showdown):
The record industry may next aim its legal guns at satellite radio due to a dispute involving new portable players which let listeners record and store songs, an analyst and industry sources said on Wednesday.
The record industry, led by major labels, such as Vivendi Universal' (EAUG.PA),> Warner Music Group Corp (NYSE:WMG - news), EMI Group Plc (EMI.L) and Sony BMG, believe the recording capability is a clear copyright violation and could take revenue away from paid download music services.
JP Morgan analyst Barton Crockett in a report suggested there might be more conflict in store.
"Based on recent talks with execs at record labels and the
Recording Industry Association of America (RIAA), we see potential spats ahead. RIAA may file a lawsuit this fall to stop a new feature for upcoming wearable satellite radios," he wrote.
Yet one more freedom we currently enjoy that the RIAA wants to take away as technology evolves.
Want to kick legal butt for the open source/free software community? Check out this new position at the Software Freedom Law Center, run by FSF's Eben Moglan and PubPat's Dan Ravicher:
STAFF ATTORNEY - SOFTWARE AND CORPORATE LAW
The Software Freedom Law Center, a newly formed not-for-profit legal
services organization that provides legal representation and other law
related services to protect and advance Free and Open Source Software,
seeks an experienced and entrepreneurial Staff Attorney with a strong
background in software for its New York headquarters. For more
information about SFLC visit www.softwarefreedom.org.
Hurray! Justice delayed ends up being justice rendered. Over a year ago, StorageTek managed to convince a district court in Boston to misuse standard copyright law and the DMCA anticompetitively and shut down an independent service vendor who offered repair and maintenance on StorageTek machines. (By doing so, StorageTek was able to leverage the vast majority of service contracts on its library units for itself.)
Today, the Federal Circuit Court of Appeals reversed [PDF] the trial court's order, holding that third parties can lawfully repair and maintain another company's software under Section 117 of the Copyright Act and, more importantly, that the DMCA cannot be used to sue such vendors when the repair and maintanence itself doesn't violate any rights under copyright law. The decision follows up on the Court's previous vindication of Skylink in its DMCA case against Chamberlain over garage door openers.
Here are some of the choice quotes from the opinion:
Brookings Institute Scholar Ben Klemens has a nice little OpEd over on BI's site about patent reform and why there is an important difference between software patents and other kinds of patents:
However, the key distinction between a drug and a method for using a computer is that few of us own the equipment or have the desire to manufacture drugs. Meanwhile, computers are ubiquitous--and as a result, so is software authorship. If you are reading this at work, there is probably someone in your building writing software right now: perhaps in the form of a company web page, or a script to make the accounting database work better. Thus, a patent on a drug creates potential liability for those companies in the pharmaceutical business, while a software patent creates potential liability for any company with its own website or software customizations, regardless of its business.
Big news. As reported by the BBC, the European Parliament has voted down the Computer-Implemented Inventions Directive, a law that would have given broad authority to the European Patent Office to start issuing US-style software patents in the EU. Rejection of this law is a huge, huge victory for innovation.
In particular, it's great to see the European Parliament realize that while software patents can spur some incremental innovation amongst coders, they often also inhibit wide adoption of new technologies, entry of start-ups into new markets, and the essential lifeblood of any network -- interoperability of programs and data. Kudos to the MEPs for standing strong on this issue in the wake of intense pressure to maximize patent protection at the expense of competition and universal access to knowledge. Kudos also to FFII, FSF, and all the other organizations that worked so hard to shed light on the true effects this misguided law could have.
A caveat: This vote doesn't outlaw software patents in the EU; it just doesn't officially sanction them. The European Patent Office will now have to decide on its own how to handle these issues, which should be interesting. Over the years, the EPO has granted some but not all software patents applied for, and has tended to do so on a haphazard basis. Hopefully, with such a resounding vote, it will curtail most if not all such grants. We'll see.
Richard Stallman has a great piece in the Guardian this week talking about the effects that software patents will have on the EU software industry, and in particular, Free/Open Source Software.
Especially effective are some examples he gives comparing software to other copyrighted works, such as a novel:
A novel and a modern complex programme have certain points in common: each is large and implements many ideas. Suppose patent law had been applied to novels in the 1800s; suppose states such as France had permitted the patenting of literary ideas. How would this have affected Hugo's writing? How would the effects of literary patents compare with the effects of literary copyright?
Consider the novel Les Misérables, written by Hugo. Because he wrote it, the copyright belonged only to him. He did not have to fear that some stranger could sue him for copyright infringement and win. That was impossible, because copyright covers only the details of a work of authorship, and only restricts copying. Hugo had not copied Les Misérables, so he was not in danger.
Patents work differently. They cover ideas - each patent is a monopoly on practising some idea, which is described in the patent itself.
Here's one example of a hypothetical literary patent:
Claim 1: a communication process that represents, in the mind of a reader, the concept of a character who has been in jail for a long time and becomes bitter towards society and humankind.
Claim 2: a communication process according to claim 1, wherein said character subsequently finds moral redemption through the kindness of another.
Claim 3: a communication process according to claims 1 and 2, wherein said character changes his name during the story.
If such a patent had existed in 1862 when Les Misérables was published, the novel would have infringed all three claims - all these things happened to Jean Valjean in the novel. Hugo could have been sued, and would have lost. The novel could have been prohibited - in effect, censored - by the patent holder.
Looks like Rush Limbaugh is a copyfighter at heart. Check out his rant yesterday about the restrictions on podcasting and CD copying:
RUSH: There are some things that we can't influence yet [in podcasting] like music because of copyright problems. I continue to hear from people. I guess this is just a testament you have to explain things a number of times. I continue to hear from people, "Well, other shows..."
I read that and I say, "Pfft. What other shows?"
"Other shows have music."
Uh, I don't know what to tell you, folks. We have a battery of attorneys here, and the battery of attorneys has dug deep, and they've given us their opinion on this and it's pretty deadlocked solid. There's nothing we can do about it because of the fact that if we included music, even snippets, that we would be effectively be distributing other people's property, copyrighted property without compensation. It's just that simple. Now some of you have said, "Well, now, if we download stream every day if we listen to the program live on the Internet we get the music there."
So here's what I did because I continue to get so much e-mail about music and the podcasts. I went to some of my partners and I said, "I want you to shoot me straight. Is this really a legal opinion or are you just telling me this because it's cheaper?" You know, I don't care. If it offends them it offends them. "I want to know the truth. Is this really the truth or are you just doing this because it's cheaper to do it this way?"
They were righteously indignant and offended and they said, "No, it has nothing to do with that. The cost is prohibitive." I mean there's no system set up for this kind of thing yet. We're away ahead of the curve to do this legally. I can't explain the people that are doing it in a way that we have been told is illegal, and I can't explain why they're doing it, and the fact that they are doing it does not give us the confidence that we could do it ourselves. We have a big legal team that's looked into this.
But I just want to tell you we're continually working on it, which at this point simply means monitoring developments in this whole copyright and piracy law. I know the Millennium Copyright Act is what this is all about, and until that's changed, none of this is going to change. In fact I just saw a story in my RSS reader today that Sony is coming out with a new system to copy-protect their CDs. There's software on their CDs that will allow a maximum of three dubs, three copies, and then it shuts down. So if somebody goes and buy a CD, they can copy it three times, but that's it and it's not on all their CDs. It's a new technology that they are embedding in the CDs, and of course the DVD industry has gotten even much tougher than the music industry has, but it's a huge deal and we have looked at it in every which way and that's what we have been told by the legal eagles. Whatever anybody else is doing out there is of no consequence to us. Based on what we have learned anybody else doing this is doing so at risk, and that's as much as I will say about it.
Michael Schreiber, head tech over at the United Way of America, has published a scathing editorial about the nasty impact that business method patents could have on the future of non-profit/community service organizations:
Consider what the future looks like for nonprofits operating in a landscape where activities as important and efficient as online fundraising are patented by one company or even a few companies. Nonprofits face a few scenarios, and none of them are good:
Divert a greater percentage of every dollar raised to cover license fees just to operate money that previously was earmarked for and still needs to go to programs and services making a positive difference in the lives of constituents.
Settle for other, less effective and efficient technology solutions to avoid the higher cost of patented solutions as well as the threat of being sued.
This certainly is not how donors envision their contributions being used. Donors do care how their money is leveraged to achieve sustainable societal change.
Nonprofit organizations exist to address complex social, environmental, and educational challenges. The last thing we need is another structural impediment like business method patents that could seriously distract us from the creation of tangible and sustainable change in our communities.
ROLL CALL: Yes, I'm taking about the ability of people to steal movies,
music, all that stuff. Do you think you've done as much as you can do?
BARTON: Pure copyright infringement is Judiciary and some Energy and
Commerce. I want to protect our creators, the creative talent in this
country, the movie producers and the television producers, and the
musicians. I have great respect. ... I wish I had that talent. I don't, so I
respect those that do. And anything we can do to go against piracy I'm for.
Where I'm a little bit different, I believe that [Rep.] Rick Boucher
[D-Va.]; you buy a video, you buy a CD, you do have the right to make one or
two copies for your own personal use. That's called fair use. And we've
always allowed people, under the older technologies, to make one or two
copies. The problem when you get to the digital technology is that you can
make a thousand perfect copies. So, the Judiciary Committee ... their
solution has been to outlaw the act of copying. So you just can't make any
copies. That's the Motion Picture Association ... that's their position. No
copies. And so Boucher and I's position is, let's find a way to make a few
copies and then that's it - not for commercial purposes, not for resale -
just for your own personal use. And the technology is debatable. Some people
think the technology is there to do that. The CD people are putting that
technology in their CDs. The video people have not yet agreed that they can
do it, although I think they can. So that's an in flux issue.
While supposedly backed by "[t]he research and development arm of a major automaker," it will be interesting to see how such innovations are received. Our current copyright system has nothing to accommodate such personal retransmission capabilities. Are these reproductions, distributions, or public performances? Are they fair use? Is this essentially the same as turning up your car stereo super-loud with the windows down, or is it like running your own radio station?
Interestingly, the system is currently limited to streaming, which makes it almost identical to Apple iTunes' "sharing" feature. It will be interesting to see the RIAA's reaction. Monitoring P2P networks is one thing; spying on us in our cars and on our daily commutes would be something quite different.
IT SOUNDS too bad to be true; but, then, it might not be true. Up to 35% of all PC software installed in 2004 was pirated, resulting in a staggering $33 billion loss to the industry, according to an annual study released this week by the Business Software Alliance (BSA), a trade association and lobby group.
Such jaw-dropping figures are regularly cited in government documents and used to justify new laws and tough penalties for pirates-this month in Britain, for example, two people convicted of piracy got lengthy prison sentences, even though they had not sought to earn money. The BSA provided its data. The judge chose to describe the effects of piracy as nothing less than "catastrophic".
But while the losses due to software copyright violations are large and serious, the crime is certainly not as costly as the BSA portrays. The association's figures rely on sample data that may not be representative, assumptions about the average amount of software on PCs and, for some countries, guesses rather than hard data. Moreover, the figures are presented in an exaggerated way by the BSA and International Data Corporation (IDC), a research firm that conducts the study. They dubiously presume that each piece of software pirated equals a direct loss of revenue to software firms.
To derive its piracy rate, IDC estimates the average amount of software that is installed on a PC per country, using data from surveys, interviews and other studies. That figure is then reduced by the known quantity of software sold per country-a calculation in which IDC specialises. The result: a (supposed) amount of piracy per country. Multiplying that figure by the revenue from legitimate sales thus yields the retail value of the unpaid-for software. This, IDC and BSA claim, equals the amount of lost revenue.
Selling music is like selling drugs. If you want your clientele to keep coming back, you need to consistently supply a quality product. People know what they want. People talk about how the music industry is struggling, but there's no strain on Eminem records. There's no strain on the Game. There's no strain on 50 Cent records. My first album was downloaded 300,000 times before it went on sale, but we still sold 872,000 copies the first week and 822,000 copies the second week. I don't believe in the oversaturation of a quality product.
According to Canadian cyberlaw prof Michael Geist, the Canadian Federal Court of Appeals has affirmed a lower decision denying the Canadian Recording Industry Association the right to subpoena the identities of 29 alleged filesharers:
The court focused much of its discussion on the privacy concerns associated with disclosing the identities of the file sharers. Although it noted the importance of intellectual property protection, it emphasized that in the Internet age "the potential for unwarranted intrusion into personal lives is now unparalleled." The court was clearly sympathetic to the privacy issues raised by the case and sought to map out some significant privacy protections. For example, it concluded that data associating users with an IP addresses goes stale very quickly and therefore evidence that is not current may be sufficient reason to dismiss a motion to disclose user identities. The court also noted that there must be care taken to ensure that personal information beyond the copyright allegations are not disclosed and that the identities of the individuals may be protected through confidentiality orders or by using initials.
While these protections are important, the court has certainly opened the door to new file sharing lawsuits. The court says that a "bona fide" standard is sufficient for disclosure, a different standard from the higher prima facie standard used by the trial judge. The court also left open many of the copyright issues, concluding that the trial judge should not have delved into the copyright analysis. While it raised some potential concerns with that analysis, the appellate court did not reach any definitive conclusions on the copyright issues.
As Ernie has noted, copyright scholar Bill Patry has started a blog. So far, it's a hit for copyright geeks like myself, presenting interesting issues, depth, knowledge, and fine writing. Patry has a particularly interesting discussion going on right now about the constitutionality of the federal anti-bootlegging statutes vis-a-vis the dormant Copyright Clause, with comments from two Boalt Hall law students and EFF's own Fred von Lohmann in the mix.
It's a lengthy administrative opinion, but it basically says the FCC can't regulate home use of digital content without explicit authority from Congress and that educators, librarians, and consumers have a legitimate interest in fair use of those materials.
According to the website of Bob Goodlatte (sounds like a James Bond villain, doesn't it?), the Republican High Tech Working Group will focus on the following issues:
Ensuring Employee Stock Ownership Remains Viable We will vigilantly promote and protect the stock ownership and retirement security of high-techs rank and file employees.
Research & Development (R&D) Tax Credit We will seek to extend the R&D tax credit and ensure that basic federal R&D spending is sufficient to maintain U.S. technological edge.
Skilled Workforce We will continue to prepare and develop workers for an information economy by supporting education reforms and funding that improve Americans math and science programs in order to fill high-tech jobs.
Reduce Trade Barriers We will continue to promote free and fair trade by lowering barriers and supporting trade agreements like CAFTA (Central American Free Trade Agreement).
Ensuring Fairness in Government IT Acquisitions We will continue to promote the commercialization of the Federal marketplace to ensure an open and competitive landscape for all technology companies.
Patent Reform We will work to modernize the patent system so that companies have incentives to produce new and high-quality patents, and that the United States Patent and Trademark Office (USPTO) provides effective turnaround especially for an industry that has rapidly changing technology and innovations.
Protect Intellectual Property from Digital Piracy - We will promote and enforce strong copyright and patent protection laws to prevent and combat the growing trend of digital piracy.
Spectrum Enhancement We will continue to work to update the Telecommunications Act to reflect the changes in technology and competition that may have been driven by the Internet.
Spyware and Phishing We will work to ensure that innovation is not stifled and consumer confidence is not threatened by bad actors, but that the Internet remains a safe and secure place for electronic commerce to take place.
Promote Health IT We will work with the Administration to enact the federal electronic health initiative to move more medical records on-line to save costs, reduce errors, and provide higher-quality care.
Promote Broadband We will work to fulfill the Presidents goal of access to broadband by working to create economic incentives, to remove regulatory barriers, and to promote new technologies to help make broadband affordable for all Americans.
In his first trip to California as the nation's attorney general, Alberto R. Gonzales told a group of high school students to just say no to online piracy.
But, for many of the students, the response was to just say "why not?"
During a daylong UCLA seminar featuring Gonzales, students peppered speakers with tough questions about the real effect of piracy. Some even suggested that government should focus more on tackling poverty and improving education than on jailing kids who download movies, music and software.
And the kicker:
Unfazed by the students' skepticism, Gonzales said this was only the beginning of an intensive educational outreach effort. He wanted to let the students know that intellectual property theft was illegal, carried consequences and could permanently stain their records.
"Sitting through a one-hour, two-hour session may not be enough . It takes awhile to educate people," he told reporters later.
Yes, I'm sure a few weeks of "reorientation" in GTMO will do the trick quite nicely...
David Dixon, the Webmaster of Puppets for the parody band Beatallica at the Signal or Noise II: Creative Revolution? symposium gives a fabulous presentation (9MB MP3) on the band's legal run-in with Sony over the composition rights to the Beatles songs they parodied and how Lars Ulrich redeemed himself from the dark days of fighting Napster by defending the band's fair use. Check it out.
p.s. Includes a great shout-out to BitTorrent and an afterward by my co-worker Wendy Seltzer.
The Herald Tribune has an interesting bit about President Bush's new iPod and where its music comes from:
The president also has an eclectic mix of songs downloaded into his iPod from Mark McKinnon, a biking buddy and his chief media strategist in the 2004 campaign. Among them are "Circle Back" by John Hiatt, "(You're So Square) Baby, I Don't Care" by Joni Mitchell and "My Sharona," the 1970s song by The Knack that Joe Levy, a deputy managing editor in charge of music coverage at Rolling Stone, cheerfully branded "suggestive if not outright filthy" in an interview last week.
As Joe Hall points out, the RIAA has conceded that ripping your own CDs to your iPod isn't illegal, but what about the music of others? Is President Bush "stealing" from artists like The Knack? Maybe the White House Press Corps should ask. Inquiring Minds want to know!
Hal Varian, kick-ass economist from UC Berkeley, lays out the case in the New York Times for why keeping Grokster legal could be a win-win for both tech and content companies:
So what should the policy be for new technologies like Grokster? I advocate the Pizza Principle: If you want everybody to get as big a slice as possible, you first have to figure out how to bake as big a pie as possible. Once you have a nice big pie, you can let people fight over how they slice it up.
With respect to technology, the Sony decision got it right: encourage technologies that create more total value. Then, let companies fight to find business models that deliver that value to consumers. They can be awfully creative when they are forced to be.
Mark Cuban is fast approaching alpha-geek status. Check out his recent post on why he can't and won't buy CDs anymore:
MP3 players are changing peoples listening habits. We dont carry folders filled with CDs anymore. We carry our library in our MP3 players. We dont listen to CDs. We listen to playlists that we adjust all the time. We dont burn CDs anymore, its too time consuming. We copy all our music to our MP3 players so its all available at our fingertips.
To help gear up for the MGM v. Grokster oral argument happening on March 29 in D.C., EFF is throwing a "send off" party for the legal team involved in the case, along with many of our friends who filed in support of our arguments or helped out in other ways. It's a public party and a time to celebrate, so if you'll be in the SF area on March 24th, please come and celebrate with us.
Charlie Angus, a Canadian Member of Parliament and musician, has broken ranks from a parliamentary committee that recommended reforms to Canada's copyright legislation. Angus expressed concern over proposals that could be detrimental to the Internet, noting that "placing handcuffs on students will not resolve the inability of Canadian artists to earn a decent living."
Here's your chance. EFF has an opening for an intellectual property attorney on our legal team. You'd get to work on cutting-edge cases dealing with public-interest technology issues and help shape national and international IP policy. We're looking for someone mid-level or higher, who can take a good idea and turn it into a lawsuit or an educational campaign and then run with it. The person will need to either live in the San Francisco Bay Area or be willing to relocate. For more details, check out the formal announcement below:
Staff Intellectual Property Attorney
EFF is seeking an intellectual property staff attorney for its legal team. Responsibilities will include litigation, public speaking, media outreach, plus legislative and regulatory advocacy, all in connection with a variety of intellectual property and high technology matters.
Qualified candidates should have roughly three years of experience with litigation in at least one substantive area of IP law (patent, copyright, trademark, or trade secret) and a solid knowledge of the litigation process. Candidates should also have significant experience managing cases, both in terms of overall case strategy as well as day-to-day projects and deadlines. Candidates should have good communication skills and interest in working with a team of highly motivated lawyers and activists in a hard-working nonprofit environment. Strong writing and analytical skills as well as the ability to be self-motivated and focused are essential. Tech savviness and familiarity with Internet civil liberties and high tech public interest issues preferred.
Interested applicants should submit a resume, writing sample, and references to ipjob--at--eff(dot)org.
At 8pm on February 8th we will celebrate the struggle and triumph of the civil rights movement with screenings of Eyes on the Prize Part 1: Awakenings. Eyes on the Prize is the most renowned civil rights documentary of all time; for many people, it is how they first learned about the Civil Rights Movement (more about the film). But this film has not been available on video or television for the past 10 years simply because of expired copyright licenses. We cannot allow copyright red tape to keep this film from the public any longer. So today we are making digital versions of the film available for download. Join us in building a new mass audience for this film: organize or attend a screening in your city, town, school or home on February 8th.
When he bought his 10-year-old a computer, Antonio Morrell was just trying to help the boy get ahead in school. Now the Miami construction worker is being sued by the music industry, which has brought its battle against Internet piracy to South Florida for the first time.
More than a dozen record companies have sued 30 South Florida residents, accusing them of illegally downloading music and making it available for others to copy.
Some of those named in the lawsuits told The Herald the record companies have offered to settle for about $4,000 each.
Morrell said he never downloaded any songs. Yet he's named in a lawsuit, he said, because his son, Alessandro -- who was 10 when his father bought him a computer two years ago -- downloaded about 1,000 songs and opened the door for others to copy them.
''I don't see how I could be paying somebody $4,000 for something I didn't do,'' Morrell said. ``I bought the computer for schoolwork. I'm sure he didn't know he was doing anything illegal.''
Morrell said he separated from his wife over a year ago and wasn't around to monitor his son's computer activity.
Ice cream cone? Yes. That's what Krispy Kream Drive In on Route 422 in Cambria County sells. The current owners have been in Belsano since 1968.
Christina Hoover owns the Ice Cream shop with her husband. She tells Channel 6 News, "We're an ice cream fast food stand. It's a drive in."
And business is good. Then in the past month two letters from Krispy Kreme donuts. The corporation is not happy with them. But it's not about donuts and ice cream. The problem has to do with the name. Krispy Kreme donuts wants Krispy Kream Drive In to change theirs.
Amy Hughes is the Communications Director for Krispy Kreme. She tells Channel 6 News, "Unfortunately this business is violating a federal regulation trademark that we've had since 1951. And we've respectfully requested that they cease doing so within a reasonable amount of time."
Krispy Kreme couldn't be more wrong. Sure, it may have been using the name in connection with donuts since 1951, but ice cream and donuts are two different kinds of products. No one thinks the KK donut chain sells ice cream cones.
What Krispy Kreme is really arguing is dilution of their "famous" brand. Since going IPO a few years ago, Krispy Kremes have popped up everywhere across the county, from SBC Park in SF to the Excaliber in Las Vegas. So yes, within the last few years, one could argue that they are a "famous" tradermark like McDonalds or Kodak and should be protected from dilution (e.g. someone selling McDonalds backpacks or Kodak bicycles). The problem with this argument is that you can only sue someone for diluting a famous mark after its become famous. Since the Hoovers' ice cream stand has had the name "Krispy Kream" since 1968, they are quite safe from a dilution attack.
In Washington to accept a First Amendment award from the Media Institute, Wright, the dean of network chiefs, sent a message to legislators, regulators and whoever else was listening that his company is ready to lead the fight for copyright protection, saying the Copyright Clause is under "enormous pressure and requires our vigilant attention."
Wright said that technology, not legislation, is the best solution to intellectual property theft, but he also said that government needed to create "new rules of the road for the digital world...that encourage technological progress yet at the same time uphold the values that make commerce possible."
1. Support a house Judiciary Committee package of antipiracy bills "currently in limbo".
2. Find some compromise in the Senate Judiciary Committee on the so-called induce legislation targeted at peer-to-peer file sharing.
3. Support Attorney General John Ashcroft's proposed intellectual property protection recommendations.
Wow.. a First Amendment advocate supporting Ashcroft? Where can I get some of that Kool-aid?
"Nowhere in its deliberations over the DMCA did Congress express an interest in creating liability for the circumvention of technological measures designed to prevent consumers from using consumer goods while leaving the copyrightable content of a work unprotected."
"We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case[.]"
"Congress gives authors and programmers exclusive rights to their expressive works (for a limited time) so that they will have an incentive to create works that promote progress. Lexmarks reading of the extent of these rights, however, would clearly stifle rather than promote progress. It would allow authors exclusive control over not only their own expression, but also over whatever functional use they can make of that expression in manufactured goods. Giving authors monopolies over manufactured goods as well as over their creative expressions will clearly not promote the Progress of Science and the useful Arts, but rather would stifle progress by stamping out competition from manufacturers who may be able to design better or less expensive replacement parts like toner cartridges."
Wow.. Talk about a mother lode. I've just finished reading through the Lexmark Opinion from the Sixth Circuit. There's a whole lot of good stuff in it about copyright, fair use, and limitations on the DMCA. Here's my current favorite from one of the concurrences (note the shout out to Larry L's new book!):
I write separately to emphasize that our holding should not be limited to the narrow facts surrounding either the Toner Loading Program or the Printer Engine Program. We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case: by, for example, creating a Toner Loading Program that is more complex and creative than the one here, or by cutting off other access to the Printer Engine Program.
The crucial point is that the DMCA forbids anyone from trafficking in any technology that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a [protected] work. 17 U.S.C. § 1201(2)(A) (emphasis added). The key question is the purpose of the circumvention technology. The microchip in SCCs toner cartridges is intended not to reap any benefit from the Toner Loading Program SCCs microchip is not designed to measure toner levels but only for the purpose of making SCCs competing toner cartridges work with printers manufactured by Lexmark.
By contrast, Lexmark would have us read this statute in such a way that any time a manufacturer intentionally circumvents any technological measure and accesses a protected work it necessarily violates the statute regardless of its purpose. Such a reading would ignore the precise language for the purpose of as well as the main point of the DMCA to prohibit the pirating of copyright-protected works such as movies, music, and computer programs. If we were to adopt Lexmarks reading of the statute, manufacturers could potentially create monopolies for replacement parts simply by using similar, but more creative, lock-out codes. Automobile manufacturers, for example, could control the entire market of replacement parts for their vehicles by including lock-out chips. Congress did not intend to allow the DMCA to be used offensively in this manner, but rather only sought to reach those who circumvented protective measures for the purpose of pirating works protected by the copyright statute. Unless a plaintiff can show that a defendant circumvented protective measures for such a purpose, its claim should not be allowed to go forward. If Lexmark wishes to utilize DMCA protections for (allegedly) copyrightable works, it should not use such works to prevent competing cartridges from working with its printer. Reading the DMCA in pari materia with the rest of the copyright code supports this interpretation.
The DMCA should be used as part of the copyright code as it applies to computer software codes and other digital media. To this extent, the specific purpose language of the DMCA modifies the more abstract language of the previous copyright law. As the Court explains, the fair use exception in copyright law explicitly looks to the purpose of the one making the copy in determining whether or not such copying violates the statute, and the DMCA itself contains a reverse engineering exception that also demonstrates Congresss aim merely to prevent piracy. I agree with the Court that both exceptions apply to SCCs actions in this case. 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 Intl 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). A monopolist could enforce its will against a smaller rival simply because the potential cost of extended litigation and discovery where the burden of proof shifts to the defendant is itself a deterrent to innovation and competition. Misreading the statute to shift the burden in this way could allow powerful manufacturers in practice to create monopolies where they are not in principle supported by law. Instead, a better reading of the statute is that it requires plaintiffs as part of their burden of pleading and persuasion to show a purpose to pirate on the part of defendants.
During the CATO Institute panel on INDUCE last week Markham Erickson of NetCoalition made an interesting point. While discussing the various flaws in the INDUCE drafts, he noted that several versions attempted to outlaw P2P appliations based on language prohibitng specific technological architectures. For example, some of the drafts from the Copyright Office specifically targeted technologies that were "capable of widespread distribution of copyrighted materials."
Markham noted that when he talked to engineers in tech companies about this particular aspect of INDUCE, their main concern was that the direction that P2P architecture is headed (decentralized services vs. central server intermediaries) is the same direction that all network technologies are headed. Today's cutting edge markets -- Wifi, WiMax, Camera Phones, MP3 players, etc. -- are all trending toward flexible decentralized distribution mechanisms, just as P2P does. Therefore, any approach to INDUCE that targets a specific or general architecture threatens not only legitimate innovation in principle but also legitimate innovation in practice, at least according to the engineers on the ground.
This got me to thinking. Why were the RIAA and MPAA so insistent during the negotiations on a broad technological definition? Why not just write a bill that narrowly targets P2P companies by name and be done with it? (For example, one could simply make it illegal to write a software program that utilizes the GiFT, FastTrack, Gnutella, Bittorrent, or OpenFt protocols and that would effectively ban most current P2P apps).
The reason, of course, is that INDUCE is not really just about P2P apps. It's about the future of all distribution technologies and in particular, about what I like to call "Me2Me" apps. As network and distribution technologies evolve, they offer consumers and computer users more and more control over their own media. P2P technology broke into the mainstream as a mechanism for distributing files amongst different people, but the same architecture is becoming popular among technologies designed to distribute one person's content amongst his or her various platforms.
For example, consider iTunes and the iPod. iTunes allows one to stream music to any computer on your local area network. It also allows you to transfer files to any number of iPods. It also allows you to rip, mix, and burn CDs. In essence, it allows massive distribution of content, albeit primarily to one's self, family, and friends.
Or consider the Media Package on Tivo via Wifi. I use my Tivo Media package to listen to music streamed from my computer over my home wireless network. I also use it to view photos. Both of these mechanisms are "Me2Me" distribution technologies which allow me to shuffle my content from one platform to another. Technologies like the Airport Express and SlingBox further extend this capability by allowing you to shift content from your computer to stereo or from your Tivo to your laptop or PDA. And finally, don't forget cell phones. More and more, they are becoming dissemination technologies for audio, video, photos, and music.
The next generation will go even further. Imagine a wireless iPod that can synch with any iTunes application within 75 feet. Or a MP3 player for your car that automatically syncs with your home computer when you pull into the driveway. Or a media player on your laptop that automatically syncs with your TiVo to download the latest episode of your favorite Prime Time addiction.
This is, of course, the RIAA and MPAA's worst nightmare. Both industries have based their business models on controlling each and every permutation of playback for their content. The RIAA wants to make you pay when you buy the CD, when you download the iTune, when you listen to an Internet webcast, etc. The MPAA wants to charge you at the theater, for every copy of a DVD you buy, and (via advertising) for every show you watch on TV. Yet the more and more we as users and consumers are allowed to control and choose our own form of playback, the less Hollywood can justify charging us for each one. The more utility we get out of Me2Me apps, the less we're willing to pay someone for an extra copy or delivery mechanism. In the end, Me2Me technology may pose a larger threat to Big Cotent's bottom line than P2P ever did.
So how does this play into the politics of INDUCE? Well, P2P has been an easy political target for the RIAA and MPAA. Its an easy case of massive unauthorized distribution. In the Grokster case, they were able to show that over 90% of P2P is used for infringement of copyright. Its transfers take place outside the privacy of one's home and often include socially-stigmatized content like pornography, spam, spyware, and viruses.
Me2Me technology, however, would be much much harder to outlaw. Many Me2Me uses would arguably be fair or non-infringing uses. For instance, they tend to be private uses involving only family or friends. Many would involve use of media legitimately purchased by both the sender and recipient of the content (i.e. oneself). Thus, under current copyright law, it would very difficult to outlaw any of them. It would also be difficult to chastize them politically in front of Congress.
This is why the battle over DRM, the Broadcast flag, and now INDUCE has become so important for them. If the RIAA/MPAA wait too long, more and more platform distribution technologies with primarily legal uses will come to market and undermine their case for outlawing specific architectures. As these technologies take hold, public and political sentiment will continue to grow against harsher restrictions and enforcement and more toward allowing and embracing such technologies. Thus, the window of opportunity for the content industry to pass a restrictive law like INDUCE is very short. They must act now (dare I say pre-emptively strike?) while they can to frame the targets as a bunch of "bad" actors (i.e. the P2P companies) before too many "good" actors (i.e. Me2Me products and services) infiltrate the market and obfuscate the ability to outlaw one architecture without threatening the others.
Terrence Maxwell has a new article in First Monday (Is Copyright Necessary?) attempting to model the effects of different copyright policies historically and into the future (e.g. authors wanting high-protection copyright vs. the public wanting low-protection copyright). His models are fairly abstract and complex (see image below), but his results are interesting:
As indicated in the table, the desired policies of authors, publishers and public domain advocates produce very different outcomes in a 100year simulation, some of which run counter to the protagonists stated goals. For instance, while the authors position led to the largest number of authors, it also generated the lowest sales figures, and the fewest number of volumes published. This indicates that the demand for new volumes from authors was the lowest among the three options, and points to a greater level of competition among authors seeking publication. Similarly, while the reader position generated the highest level of sales, the greatest number of different volumes, and the lowest cost for books, it also severely constrained the number of authors. This means that while a greater number of volumes would be available, diversity in authorship would be curtailed. This, in turn, would tend to diminish the likelihood of variety in information products.
Dutch civil rights organization Bits of Freedom has run an interesting experiment: They put up a text by a famous Dutch author, written in 1871 to accounts with 10 different ISPs. Then they made up an imaginary society that is supposed to be the copyright holder of the author in question, and sent copyright infringement takedown notices to those 10 ISP via email (using a Hotmail account). 7 out of 10 ISPs took down the material, sometimes within hours and without even informing the account holder. One ISP doubted the legitimacy of the claim and asked for some proof that the alleged plaintiff was in fact the copyright holder. Yet another ISP actually realized that copyright had long since run out on the work. That's real scary, don't you think? Made up society, Hotmail addresses and a website is gone.
Going on a trip and want to take the latest episode of The Sopranos with you? Forgetaboutit. Coming this June to a cable or satellite set top box near you, HBO will be locking downall fair use rights on their content -- whether analog or digital. You can make one copy of regular HBO content and no copies of On-Demand content:
Commencing in June, HBO will include a technology in its program services that provides copyright protection information to consumer electronic equipment connected to analog outputs of cable and satellite set-top boxes. The technology (CGMS-A -- Content Generation Management System for Analog) enables compliant digital recording devices to abide by federal digital encoding rules.
In accordance with the federal encoding rules, HBO and Cinemax subscribers will still be able to make a single copy of HBO and Cinemax linear programming, but will not be able to make any copies of HBO-On-Demand or Cinemax-On-Demand programming.
When will Disney stop stealing from the public domain? I mean really, it's just like taking a CD from a record store without paying for it... except that the record store owner is dead... and well, the store is really the compendium of human knowledge.. and the CD is part of our collective cultural history. Whatever. Theft is Theft, right?
LONDON, England (CNN) -- An unlikely feud is seeing the film empire that built its name on cartoons for children -- the giant Disney corporation -- at odds with Britain's most famous hospital for sick children.
And it is all over another legendary children's favorite -- Peter Pan, the boy who never grew up.
In what the New York Post billed this week as "Sick kids vs. Disney in Peter Pan dust up," Great Ormond Street hospital for children in London is consulting lawyers over a book published by a Disney subsidiary in the United States.
"Peter and the Starcatchers" by Dave Barry and Ridley Pearson and published by Disney's Hyperion Books is billed as a prequel to the children's classic, "Peter Pan."
Great Ormond Street was left the royalties to Peter Pan in 1929 by the author, J.M. Barrie -- and million of pounds earned from copyright fees have gone towards treating sick children in Britain ever since.
This weekend sees the UK premiere of a film about Barrie's life, "Finding Neverland" -- starring Johnny Depp, Kate Winslet and Dustin Hoffman. The hospital will receive royalties from book excerpts portrayed in the film.
But the hospital charity says is getting nothing from "Peter and the Starcatchers" -- which has been on the New York Times best seller lists, has had an extensive author tour and has its own Web site. They say the book has been published without its permission.
A spokesman for the hospital told CNN that Great Ormond Street held the copyright to Peter Pan in the United States until 2023 -- although it runs out in EU countries in 2007 -- and said: "We are considering our options."
Disney, meanwhile, has insisted that Peter Pan is out of copyright in the United States.
"The copyright to the J.M. Barrie stories expired in the U.S. prior to 1998, the effective date of the U.S. Copyright Extension Act, and thus were ineligible for any extension of their term," Disney said in a statement to the Daily Telegraph.
Washingtonpost.com has the transcript of an interesting online chat with Sarah Deutsch, a lawyer for Verizon, about online privacy, including the Supreme Court's recent denial of cert. in the RIAA v. Verizon case about DMCA subpoenas and file-sharers:
U Boulder, CO: I have heard that the RIAA has technologies that can find illegal downloaders online and track them. Is this stuff legal? Isn't that hacking? Do ISPs allow this kind of software on their networks?
Sarah Deutsch: The RIAA, MPAA and even the pornography industry (acting as a "copyright owners") are increasingly hiring Internet "bounty hunters" who use search tools, including search bots to scour the Internet for infringing files. Just like those mechanical spiders in the movie "Minority Report," the spiders go into users' shared folders on their hard drives and match file names to the names of copyrighted songs and movies. Unfortunately, the bots make mistakes,which is why one ISP received a notice demanding that they terminate a subscriber who had allegedly downloaded the Harry Potter movie when the attachment was actually the Harry Potter book report.
CHAIRMAN, SENATE COMMITTEE ON
COMMERCE, SCIENCE, AND TRANSPORTATION
OCTOBER 11, 2004
THE INTELLECTUAL PROPERTY PROTECTION ACT
Mr. President, I wish to briefly remark on H.R. 2391 and H.R. 4077, a package of bills referred to as the Intellectual Property Protection Act of 2004. I have objected to the further consideration or passage of these bills by unanimous consent.
From the text of the bills that have been available to date for Senators to review, I believe that one part of this broad legislation, the Family Movie Act, may actually harm consumers while appearing to help them. To be clear, I support the stated goal of the Acts authors: immunizing from legal challenges a technology that enables parents to skip offensive material from prerecorded copies of films and television. While I applaud the merits of their stated intent, I fear that the very exemption designed to achieve this laudable goal simultaneously creates an implication that certain basic practices that consumers have enjoyed for years -- like fast-forwarding through advertisements -- would constitute criminal copyright infringement. I note that Consumers Union and Public Knowledge, as well as a host of others parties interested in protecting consumers, share my concerns.
Americans have been recording TV shows and fast-forwarding through commercials for more than thirty years. Do we really expect to throw people in jail in 2004 for behavior they've been engaged in for more than a quarter century?
I look forward to working with my colleagues in this chamber to address not only these concerns, but also the uncertain liability created for manufacturers that bring other innovative and pro-family products to market in the face of continual threats of extinction from powerful interests who seek to thwart their entry.
Mr. President, for these reasons, I do not intend to remove my hold on these bills until I am satisfied that consumer interests have been protected in this legislation.
The Olsen twins are threatening legal action against a California design company unless it ceases the production and sale of a popular t-shirt featuring a drawing of Mary-Kate and the words underneath "save mary-kate." The t-shirt is pictured on the link and was produced after Mary-Kate Olsen, 18, entered a facility in June 2004 for treatment of an alleged eating disorder. The letter sent was sent from the Olsen twins' attorneys to the company, contending that the t-shirt violates the Olsens' publicity, privacy, and trademark rights.
Interesting Commentary in BusinessWeek on the follies of the RIAA's war on innovation:
Today's turmoil over copyrights contains a disturbing new twist, however. Digital technology -- from MP3 players to software that makes it easy to build Web pages -- shatters almost all of the technical barriers to duplicating and sharing copyrighted works. That has caused unparalleled anxiety among copyright holders. As a result, music and movie companies have adopted a strategy of targeting digital technology itself as well as those who design it and those who use it.
In time this could threaten the delicate balance between copy protection and technical innovation. The intent of copyright law in the U.S. is to promote learning and innovation while giving artists, musicians, and writers a limited monopoly on their work. The goal isn't to assure that artists or intellectuals make oodles of cash.
News.com reports the comments of a founder of the MP3 standard, saying what we've all known all along: the number one roadblock to growth in the online music biz is not piracy, but DRM.
"It has slowed the download business for sure, and it's doing the same for the gadget makers," said Karlheinz Brandenburg, director of electronic media technologies at the Fraunhofer Institute in Ilemenau, Germany.
Consumers nowadays can store thousands of songs in a pocket-size device, play music and videos on their mobile phones, and buy albums at the click of a button.
But to their chagrin, a bewildering number of competing playback compression technologies and antipiracy software options determine which songs play on which devices.
Apple Computer, RealNetworks and Sony each have developed proprietary playback and DRM (digital rights management) antipiracy technologies. Songs bought on Apple's iTunes music store can play only on Apple iPods. Ditto for Sony.
The alphabet soup of technologies is meant to prevent fans from rampantly duplicating and transferring songs to others.
On the heels of Fritz Attaway's antagonistic comments about P2P the other week, there was an interesting Q&A in CNET last week with Mitch Glazier, head DC lobbyist for the RIAA. I found this exchange particularly illuminating:
There has been speculation that the original Induce Act could make Apple Computer liable for selling like the iPod. Could it?
The original Induce Act focused on the totality of the circumstances. There's no way that a company that produces great digital rights management for a licensed product is ever going to be shown to want to profit from piracy.
In other words, the RIAA intends to use INDUCE as leverage to pressure companies into incorporating DRM. If you incorporate "great digital rights management for a licensed product", they won't sue. Leave out the DRM, however, and well.. you enter the marketplace at your own risk.
Also, it appears that Mitch is confusing his Apple products. Apple's iTunes Music Store does put DRM on each of its songs, but the iPod can handle an unlimited number of DRM-free MP3 files without any restrictions. Apple could have designed the iPod to only handle DRM-protected content, but it didn't. Does the fact that it enforces DRM rules for some songs but not for others still mean it can't INDUCE?
One of the things people love most about the Internet is that it runs almost entirely on open standards. For example, you can send email to anyone in the world with any email client. You don't need to use a Hotmail account to send to a Hotmail user. You don't need to use Outlook to send email to an Outlook user. Every email program works with every other email program.
In the digital music world, however, we're seeing an increasing trend toward technological balkanization. Apple's iTunes won't work on anything but the iPod. Real's music won't work on open MP3 players. And now, as Frank and Donna have noted, Microsoft has launched its new MSN Music Store into the marketplace for digital downloads complete with Janus-encrypted DRM that only play on MSFT-approved devices. Thus, much like Apple and Real, Microsoft's music launch is just the latest effort to "bring music to the masses" by, ironically, setting up a new, separate, incompatible DRM fiefdom.
The problem with this world is that users can no longer count on the same freedom and compatibility they enjoy for Internet apps like email when it comes to online music. In fact, they will have significantly less freedom than they would buying a CD. Rip a CD and you can take the unencumbered MP3 files anywhere you go and listen to them on any computer or MP3 player you happen to be using. However, if a friend of mine wants to come over and play me a new song he just bought from an online store, I now have to ask him which store, what DRM restrictions are on it, is it compatible with my system, etc., or when he comes over, his song may not play on my system. This seems to me like a step backwards in technology, not forwards.
DRM also poses a serious threat to the notion of a "music collection" as we know it. Microsoft's new Music Store restrictions may seem innocuous and reasonable today if you own a Windows machine or use MSN as your OSP. But what if you switch at some point to a Mac? Or Linux? Or what if you cancel your MSN account? Will you be able to take your music with you? What if Microsoft decided in five years to drop support for its Music Store? Or what if most MP3 player manufacturers decide to drop Microsoft? All of the sudden you could end up with your music locked up and no key to unlock it. And the worst part is you have no control over the situation. You don't own the keys to your own music; Microsoft does.
These are the kinds of limited, crippled choices DRM gives us. And as DRM standards proliferate, incompatibilities and restriction will likely only increase. Unlike most markets where new options mean more choice and better deals for consumers, competition in the DRM music space fractures the functionality and choices that consumer want the most -- freedom, compatibility, and mobility.
So where will these DRM Wars lead us? Ironically, as my colleague Fred notes from a recent entry on Microsoft's own Music Store FAQ, they may lead us right back to where the digital music revolution started -- ripping MP3s from CDs onto our hard drives.
Skylink has won its DMCA case on appeal. It's a lengthy and interesting unanimous opinion by Judge Gajarsa, with some real gems reining in some of the overbroad and much-abused language of Section 1201:
The DMCA does not create a new property right for copyright owners. Nor, for that matter, does it divest the public of the property rights that the Copyright Act has long granted to the public. The anticircumvention and anti-trafficking provisions of the DMCA create new grounds of liability. A copyright owner seeking to impose liability on an accused circumventor must demonstrate a reasonable relationship between the circumvention at issue and a use relating to a property right for which the Copyright Act permits the copyright owner to withhold authorization-as well as notice that authorization was withheld. A copyright owner seeking to impose liability on an accused trafficker must demonstrate that the trafficker's device enables either copyright infringement or a prohibited circumvention. Here, the District Court correctly ruled that Chamberlain pled no connection between unauthorized use of its copyrighted software and Skylink's accused transmitter. This connection is critical to sustaining a cause of action under the DMCA. We therefore affirm the District Court's summary judgment in favor of Skylink.
Worried that the upgrade could conflict with other applications running on university networks, and a related concern that thousands of students attempting to download the software could bring campus computer networks to a standstill, technology administrators at some universities have taken steps to block an automatic service that downloads the software.
"Our primary concern is the impact this will have on our network and the length of time it would take to get from Microsoft directly," said Damon Palyka, a computer security technician at the school.
For those of us who despise the file-swappers as larcenous hypocrites, it's not a happy verdict. But it's well nigh impossible to dispute it. The judges simply pointed to a crucial 1984 Supreme Court decision that protected the rights of Americans to own videotape recorders. The movie industry scowled that these devices would enable people to practice a lively trade in pirated movies. The court responded that VCRs could also enable a fellow working the night shift to watch "The Waltons" when he got home. And because the technology had "substantial noninfringing uses," VCRs could not be banned, even if they could also be used for illegal purposes.
The so-called "Betamax case" liberated technologists to create CD and DVD burners, portable MP3 music players, and music-ripping software, secure in the knowledge that they couldn't be sued for it.
Alas, it also provided running room for the Groksters and Kazaas of the world. The managers of these companies know full well that their products encourage music theft, but insist upon pretending, like Sergeant Schultz, that they know nothing.
Well, now it doesn't matter what they know. As long as their software has legitimate uses, as well as corrupt ones, it's legal.
Republican Senator Orrin Hatch of Utah must have seen this coming. Hatch went out on a limb a few months back, proposing a federal law that would ban products that sought to "induce" copyright violations. In this space, I defended Hatch against the scorn of outraged technologists, who insisted the new law would have stifled the invention of the Apple iPod and other tech goodies.
But I changed my mind when Marybeth Peters, the chief of the US Copyright Office, praised the Hatch bill because it would undermine the Betamax case. If that happened, the next generation of digital marvels would be buried in an avalanche of injunctions, depositions, and discovery motions. No thanks, Marybeth. We'd rather learn to live with digital thievery.
The Electronic Frontier Foundation, an Internet civil liberties group, plotted the file-swappers' victorious legal strategy. The foundation also has a plan for the future of recorded music, a plan that gives artists and producers a hope of collecting at least some money for their work.
It's simple, really. Everybody who uses peer-to-peer software would pay a nominal monthly fee into a fund owned by the music industry. The foundation figures $5 a month. After all, those who pay are now allowed to download all the music they want. And there'd be no restrictions on what they could do with the files. They could make as many copies as they wanted, and play them on any device. Meanwhile, a computer would keep track of which tunes were downloaded, and the money in the fund would be doled out in the right proportions to artists and publishers around the world.
It's not a particularly radical concept; it's how radio and TV stations pay royalties to the music companies. The foundation estimates that about 60 million Americans currently swap music files, and that most of them would gladly pay a measly $5 a month to become law-abiding citizens. That works out to around $3.6 billion a year, without the cost of producing physical CDs.
The music makers have sneered at this idea for years, but that was before the federal courts had their say. Right about now, the EFF plan might look pretty good.
Digital Media Europe carries a story today wherein the Pixies denounce traditional record labels in favor of live CD sales from concerts, product licensing, and Internet distribution:
"Record companies, schmecord companies who needs em? Thats not where the money is. The business is with the real customers the fans. Thats who were trying to connect with," band member Frank Black, AKA Black Francis, told the Associated Press this week.
"I never really was much of a believer in the album anyway," Black said. "Singles are what people relate to."
Apparently, the band doesn''t feel it needs a record label any more and, while their plans are still unformed at the moment, the idea generally is to combine selling live CDs made and then sold at concerts, producing music for movies and commercials and distributing singles via the internet.
I've just finished reading the Ninth Circuit's decision (PDF). It's a beauty. Not only do they get the technology and the law right, but also the policy. Check out these choice comments at the end of the opinion:
The Copyright Owners urge a re-examination of the law in the light of what they believe to be proper public policy, expanding exponentially the reach of the doctrines of contributory and vicarious copyright infringement. Not only would such a renovation conflict with binding precedent, it would be unwise. Doubtless, taking that step would satisfy the Copyright Owners immediate economic aims. However, it would also alter general copyright law in profound ways with unknown ultimate consequences outside the present context.
Further, as we have observed, we live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation. AT&T Corp. v. City of Portland, 216 F.3d 871, 876 (9th Cir. 1999). The introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through well established distribution mechanisms. Yet, history has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player.Thus, it is prudent for courts to exercise caution before restructuring liability theories for the purpose of addressing specific market abuses, despite their apparent present magnitude.
Indeed, the Supreme Court has admonished us to leave such matters to Congress. In Sony-Betamax, the Court spoke quite clearly about the role of Congress in applying copyright law to new technologies. As the Supreme Court stated in that case, The direction of Art. I is that Congress shall have the power to promote the progress of science and the useful arts. When, as here, the Constitution is permissive, the sign of how far Congress has chosen to go can come only from Congress. 464 U.S. at 456 (quoting Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 530 (1972)).
Last week the Congressional Budget Office released a new report called "Copyright Issues in Digital Media." It should be essential reading on the Hill. The report upholds exactly the kind of evenhandedness that has been missing in much copyright legislation so far.
"Revisions to copyright law," the report argues, "should be made without regard to the vested interests of particular business and consumer groups."
The real test should be the economic efficiency of the marketplace - finding a way to balance the social benefits of a technology, like videocassettes, against the fears of copyright-owning movie studios.
The best way to accomplish that is to remember that copyright is an instrument "for allocating creative resources," not "an absolute, inviolable set of rights to which either creators or consumers are entitled."
That is not how Congress usually thinks about it. A good example is the so-called Induce Act, now under consideration, which would make it a crime to aid or induce copyright violations like illegal file-sharing.
But the bill is so loosely worded that it could threaten a host of legal information-sharing practices and technologies. That includes everything from the iPod to automatic online translation. Critics claim, with reason, that this overreaching bill would have deeply chilling effects on technological innovation.
Ok/Cancel is a great blog/webtoon about HCI and UI issues. This week, they hit the nail on the head about how web companies overreact to actual competition in their space -- with threats of litigation vs. inspiration to innovate and actually beat out others in the marketplace.
The Competitive Enterprise has released an OpEd critiquing the INDUCE Act, set for hearing tomorrow in the Senate Judiciary Committee:
The INDUCE Act is the latest in a string of fast-tracked Senate proposals designed to give major media players more power tools to attack downloading, duplicating, and exchanging music and video files over the Web. However, this legislation is not confined to person-to-person (P2P) file exchanges: It would affect cable, PC, PDA, satellite TV and radio, photocopying, and other technologies that allow transmission of dataand threaten the emergence of future technologies. Had such a law been in place during the 1970s, we may not have PCs, CDs, and other technologies we now take for granted.
My alma materDuke University has announced a new program where all incoming first-year students will receive iPods for "educational" purposes.
I think this is a great thing and I'm proud that Duke continues to be a leader in instructional technology but consider what the INDUCE Act might have to say about it. After all, Duke knows that students infringe more copyrights before breakfast than most people do all day. Would a reasonable person have known that giving them an iPod would allow more infringement to take place? Now there's a good question for Duke Law School's IP final...
The New York Times had an article the other day about the quality of digital music and whether most people will ever notice the difference (From a High-Tech System, Low-Fi Music). Not directly IP related, but buried below the fold was an interesting discussion of the shift from owning music to renting music and the trade-off between that and committing to a medium:
Reception and Awards & Installation Banquet (Thursday, July 1 5:30 p.m.)
The Recording Industry Association of America (RIAA) is hosting the banquet reception. Banquet attendees will receive two complimentary drinks and be entered into the drawings for free CDs!
The 2004-05 CDAA Officers and Board of Directors will be installed at the banquet following the presentation of the annual awards.
Now why would the RIAA be wooing California District Attorneys? Could it be in anticipation of them using AB2735 to criminally convict file-sharers for failing to identify themselves when they swap on P2P networks? I mean after all, they did buy two complimentary drinks for each of them and the possibility of wining a free CD!
But let us not worry. I'm sure that these fine public representatives will not let such blatant pandering influence their unfettered prosecutorial discretion and priorities when deciding which crimes to spend our tax dollars fighting in California. No, really.
The Complaint, alleged inducement against Apple, Toshina (who supplied the iPod's hard drive), and CNET (who provided a review of the iPod including instructions on how to move musc files between it and multiple computers), lays out exactly how easy it would be to sue a company for inducement on any of their flagship computer products. We tried to make the complaint as simple as possible but at the same time, substantive enough that it would be difficiult for Apple or any other company to dismiss the case before trial. [For all you lawyers out there, try to think of how you could succeed on a 12(b)(6) or Rule 56 motion].
It's often hard to conceive the potential damage Congress can inflict upon us until too long after the fact (e.g. DMCA), so we hope this will help focus the issue.
Favorite first-breakfast jeweler Tiffany & Co. has filed a trademark lawsuit against eBay, claiming that it allows too many counterfeit Tiffany items for auction.
The lawsuit asks that eBay be stopped from listing any "Tiffany" merchandise that is not genuine and for eBay to account for profits it made on the sale of counterfeit Tiffany merchandise or else pay up to $1 million for each type of fake Tiffany merchandise sold on the Web site.
While I can understand Tiffany's outrage that as much as 73 percent of all listed items under their name are fake, the rationale for the suit seems to me increadible overbearing and expansive as a trademark theory, especially since everyone knows that eBay explicitly disclaims any knowledge of whether a particular item is authentic or not when you bid on it.
No one expects newspapers to police their classifieds like this; why should eBay be singled out?
This just in -- The Fourth Circuit Court of Appeals has affirmed in the Costar v. Loopnet case that ISPs and other providers are not liable for direct infringement when their servers passively copy works that have been uploaded, downloaded, or hosted by users if they didn't have knowledge that the works were infringing. Their rationale: copyright infringement requires as active "volitional" act; setting up automatic servers to upload/download/host content is purely passive and does not include any active participation by the hosting company.
This essentially reaffirms the ruling in RTC v. Netcom from 1995 but was a lingering question after the DMCA safe harbors were passed in 1998, especially given copyright law's purported "strict liability" standard. Moreover, the Court found that even the act of Loopnet employees viewing the photogaphs was not violitional enough to be direct infringement. A very good ruling given the realities of computers and networks.
Full Disclosure: My good friend Kurt Opsahl argued the winning side for Loopnet. Way to go Kurt!
The main spin of the study appears to be that, for those consumers who buy CDs, 3 out of 4 dentists... no wait, make that 1 out of 20 purchasers also pay to download music. In other words, if you buy music in stores, you may buy music online. (duh?)
More noteworthy, I think, is another set of results buried at the bottom of the press release:
According to NPD there were other notable differences in CD purchase behavior, depending on how consumers used specific online music services. CD buyers who also used an online music subscription service, such as Rhapsody, in the past twelve months purchased an average of 11 CDs last year; those who had paid for a music download from legal download site, like iTunes, purchased 10 CDs; those who used a P2P file-sharing site purchased eight CDs; and those who did not download or stream music from the Web bought six CDs.
If one assumes an average CD price of $12, then the average P2P user in their survey is paying the RIAA labels $96 per year for music they already can get for free. Who says you can't compete?
One of the major changes, he notes, is stricter DRM on the songs you buy from the iTunes Music Store:
In iTunes 4.5, you can authorize up to five Macs or Windows computers to play your purchased music -- up from three. But Apple giveth and Apple taketh away: you can now burn a playlist containing purchased music up to seven times (down from ten). And the old workaround of simply changing the playlist slightly does not work.
So after one year and 70 million songs, $0.99 now buys you less rather than more -- seven hard burns instead of ten soft ones. What will Apple "allow" us to do with the music we "buy" next year? three burns? one? zero?
And what about the songs you've already bought? Don't we get to keep the rights we had before the change?
Well, Apple has conveniently reserved its rights to make changes -- unilaterially -- to its DRM and your ability to make fair use via its Terms of Service and Terms of Sale pretty much anytime it pleases, without even having to give you notice:
Ernie breaks a great story about Jones Day suing the Oakland Tribune to take back the memos they wrote about Diebold's risky ventures in California over uncertified e-voting machines.
While Jones Day chose to use legal tools to restrain news reporting and Free Speech in this case, keep in mind that if we had Trusted Computing, Jones Day could have written the documents in a word processing application that required an attestation that the reader was authorized to access the documents before decrypting them.
If this was the case, the reporters at the Tribune would never have been able to read the documents even after they had acquired them because the application would not "trust" them to decrypt the contents. Unless, of course, they attempted to circumvent the attestation requirement and "hack" into the document, thereby invoking dangers under the DMCA.
When the Diebold email archive and memos were posted on the net by the Swarthmore students and others, Diebold sent DMCA take-down notices to shut down their speech. But there, the students were able to respond and repost the documents. They were able to claim fair use as a defense to the allegations that they infringed Diebold's copyrights in its internal memoranda and emails. With Trusted Computing and the DMCA, fair use is no defense. Under current law, circumvention of Trusted Computing and/or DRM is arguably a criminal and civil violation -- whether your purpose is to publish the Pentagon Papers or the Diebold Papers.
An interesting issue has come up in the Gmail and privacy session @ CFP. If you send an email to someone at a corporation, e.g. email@example.com, there is an implicit understanding amongst most people that Microsoft could scan the email and read its contents. After all, Microsoft has a number of trade secrets to protect (as well as other interests) and since you are sending the email to one of its employees, it presumptively has the right to check it to make sure it isn't causing the corporation any harm. At the very least, it could argue that since the mail has been sent to its comptuer servers, it has a right to look at it if it wants.
So what about Gmail? Shouldn't people have the same low expectations of privacy if they send email to someone using a gmail.com email address? After all, the email is residing on Gmail's servers and there's no illusion that the email is residing on a private server.
The difference, I think, is one of perceived control and ownership. When I send email to microsoft.com, I understand that Microsoft has a right to police its email and servers because the person you are sending the mail to is an employee there -- someone who Microsoft has control and supervision over while they are at work.
With Gmail, however, Google doesn't have any control or supervision over its users. At least, that's our current perception. In return for seeing ads, users get a Gig of storage. That's the relationship. Google doesn't try to tell the user what to use to account for or try to control their behavior or supervise it. Therefore, when I send email to someone at a Gmail account, I assume the user is in control of the privacy of that email, not Google.
While the FBI has had trouble tracking down Osama Bin Laden and other terrorists, they appear to have had no problem locating and raiding another group of alleged lawbreakers: public school childrencopyright infringers.
Federal agents in Phoenix and elsewhere in the country raided schools and other targets in a national crackdown on pirated music CDs and movies.
Agents poured through data and records at a computer command center for the Deer Valley School District in the northwest Valley and blocked the office from the public. It was among other places in Arizona and "quite a few other states" where sealed search warrants were served, the FBI said.
Update: Alright, alright. I suppose my post was implying a bit too much. We don't know whether the target of the FBI raid was children or employees. But we do know that the FBI is expending significant tax dollars and public resources in these raids. While this isn't unusual in the context of commercial bootlegging, pre-release distribution and/or organized crime-related copyright infringement, it is unusual if the infringement is standard non-commercial community copying. It signifies quite a step up in scope of the FBIs efforts.
The real question is, what are the tradeoffs? Are there terrorist or other threats they could be investigating instead of busting warez pirates? What are the real costs of such a campaign?
The Second Circuit Court of appeals today issued a ruling that republication on the Internet of quotes from an illegally acquired seminar manual can still be fair use, despite the fact that they were acquired in bad faith. The Court held that while good/bad faith does factor into the equation, the overall issue of transformation is what is most important to deciding what is fair and what isn't.
While the majority opinion will only hold interest for the true lawgeeks in the audience, I recommend reading Judge Dennis Jacob's concurring opinion which contains many spirited exhibitions on fair use, including this gem:
"Fair use is not a doctrine that exists by sufferance, or that is earned by good works and clean morals; it is a right--codified in § 107 and recognized since shortly after the Statute of Anne--that is necessary to fulfill copyrights very purpose, [t]o promote the Progress of science and the useful arts . . . .
"My mother was a children's librarian, and she imbued me with a world view that culture is a conversation, that you don't own stories, you share them," he tells me. "What has happened over the past few decades is that culture has become privatized to the point where we're now facing a crisis. We need to remember we can still quote and sample, we still have fair use. As a free culture, we're still allowed to do things without permission."
As Ernie noted recently, the FCC has issued as Notice of Inquiry on the feasibility of mandating DRM for digital radio, starting a process to take us all kicking-and-screaming down the same road it did when it forced the Broadcast Flag on the future of digital televison.
Beyond skepticism regarding the necessity for such invasive regulation, the action has also raised suspicions about the origin of the action, since (unlike with the Broadcast Flag) there has been to date no mandate from Congress for such action, no record on the subject in the FCC docket, and no attempt by the RIAA to work out an industry solution.
Well, yesterday Public Knowledge, one of the key groups opposing the BFlag, raised a red flag of its own regarding the FCC's actions by filing a FOIA request to disclose all communications between the RIAA and the FCC on the issue of digital radio:
There has to be a reason why the Commission was so drastically prepared to change course, and it didnt show up in the required public filings, said Gigi B. Sohn, president of Public Knowledge. Sohn also said she did not find credible the RIAA assertions that the group didnt know it had to disclose its contact with FCC commissioners and staff.
If the request turns up any previously undocumented communications, the RIAA will have vioalted the Ex Parte disclosure laws. The FCC has 20 days to respond to the request.
Engagdet notes: This has been around for awhile now in Britain, but AT&T Wireless is the first carrier in the US to offer Shazams song identification service. If you hear a song you like (or dont like, as the case may be) but dont know who its by, you can just dial #ID (or #43) on your cellphone, hold the phone near the speaker for at least 15 seconds, and then moments later youll get a text message with the name of the song and recording artist. They say theyve got a million songs in the database, and that for right now you can try it out for free, though later itll cost 99 cents a pop.
I'd be curious to know if/how AT&T is handling the copyright issues for this service. Are they are instructing their customers to make digital retransmissions of copyrighted sound recordings? What about the "million songs" they have copied into their database? Is this infringement? Will the RIAA sue? Inquiring minds want to know...
Salon.com has an article this morning about the controversial SCO v. Linux battles (Making The World Safe For Free Software). It's mostly an overview piece of the history behind the conflict, but it also includes a nice little analysis of how Groklaw, the legal blog dedicated to chronicling the fight, has provided a sort of "open source" approach to researching many of the legal and factual issues in the case, relying on its thousands of readers to examine the allegedly infringing code and perhaps saving defendants like IBM hundreds of thousands of dollars they would have otherwise spent on legal or consulting fees...
At the Kirkush Military Training Base in the eastern Iraqi desert less than 15 miles from the frontier with Iran, an hour's wait for a helicopter was spent listening to Marilyn Manson, Eminem and Shania Twain before the Black Hawk fired up its turbines and somebody back in the barracks, as if on cue and with a dark sense of irony, cranked up Led Zeppelin's "Stairway to Heaven." The songs came from a European satellite music channel and a communal computer where 12.8 gigabites of tunes had been downloaded for sharing on MP3's. The rule was simple: Take some music, add some music. "Any time anybody on the team gets a new CD, they load it in, so we stay pretty current," said Sgt. Thomas R. Mena.
As the new CD from Tool blasted in the barracks, Sergeant Mena scrolled through the computerized music library, which ranged from Abba and AC/DC, through Limp Biskit and Metallica and on to Van Halen and ZZ Top. Emigres from West Africa who joined the Army for citizenship and career training arrived with the latest Nigerian pop CD's. Chinese-Americans hauled along hot Hong Kong video imports.
Forty years ago, there was a scary TV show called "The Outer Limits."
The show started with the narrator's words: "We can reduce the focus to a soft blur, or sharpen it to crystal clarity. We will control the horizontal. We will control the vertical. For the next hour, sit quietly and we will control all that you see and hear."
Who knew that today the Federal Communications Commission would be trying to turn that sci-fi introduction into a regulatory reality? Not only is the commission considering rules that would result in the digital television picture from reaching its full, sparkling potential, but the FCC also is considering defining where, when and with what rights consumers can use digital media.
Ed Felten has posted his attempt at synthesizing the supposedly contradictory studies on how file-sharing affects CD sales:
The Grand Unified Theory explains the study results by breaking down the users of filesharing into two subpopulations, which I will call Free-riders and Samplers.
Free-riders are generally young. They have few if any moral qualms about filesharing, and they tend to assume that others feel the same way. They use filesharing to accumulate libraries of music, as an alternative to buying CDs.
Samplers are generally older and more risk-averse. They are highly engaged with cultural products of all sorts. They are morally conflicted about filesharing, and use it mostly to download songs that either aren't for sale, or that they don't value enough to pay for. They buy music that they really like, and filesharing causes them to find more music they like, so it tends to increase their CD purchases.
via BoingBoing, Jack Layton, leader of the NDP, Canadian's left-wing New Democratic Party and Prime Ministerial Candidate:
"I'm a holder of a copyright myself. But it's a book on homelessness and I don't mind if anyone wants to copy it," he says with a grin. "I'm still not so sure how (file sharing) impacts sales -- some studies even say it enhances them. I don't think the dust has settled on this yet. When I was at university there was a great fear that photocopying was going to destroy the publishing industry and that hasn't happened. It's sometimes best to muddle along, take things one step at a time and see what happens. Society can have a way of sorting things out."
John Schwartz at the NYTimes has an interesting article this morning on the recent UNC/Harvard Study claiming P2P has almost null effect on CD sales. In particular, I thought the critique of the RIAA's "illegal activities" survey method was particularly good:
The industry has reacted with the kind of flustered consternation that the White House might display if Richard A. Clarke showed up at a Rose Garden tea party. Last week, the Recording Industry Association of America sent out three versions of a six-page response to the study.
The problem with the industry view, Professors Oberholzer-Gee and Strumpf say, is that it is not supported by solid evidence. Previous studies have failed because they tend to depend on surveys, and the authors contend that surveys of illegal activity are not trustworthy. "Those who agree to have their Internet behavior discussed or monitored are unlikely to be representative of all Internet users," the authors wrote.
"The single-bullet theory employed by the R.I.A.A. has always been considered by anyone with even a modicum of economic knowledge to be pretty ambitious as spin," said Joe Fleischer, the head of sales and marketing for BigChampagne, a company that tracks music downloads and is used by some record companies to measure the popularity of songs for marketing purposes.
Also check out Ed Felten's write up on the article here.
Rolling Stone covers the P2P leakage of Wilco's new album and the subsequent campaign amongst fans to show their appreciation through donations:
"How do I feel about the record leaking on the Internet?" he says. "Well, that's a little bit like asking me how I felt about the sun coming up today. It's an inevitable thing and not something we ever perceive as a problem. We were -- to be honest -- surprised it took as long as it did [about ten days]. Basically, once the first batch of promotional CDs began circulating at record companies and in the media, we knew it was just a matter of days. It's just something you plan for and assume at this point."
"The band and I think this idea is great because it just underscores something we believe very strongly: that real music fans are prepared, even anxious, to prove their loyalty and support their favorite artists," Margherita says. "They want to participate. These people are not the enemy . . . They're the backbone of what we all do. Plus, we get to support a charity that we think is very important, and I'm certain that a vast majority of the people who are downloading the record are going to want the real thing when it comes out in June."
Understandably, this has angered a number of software/net activitists, including Richard Stallman, who is now threatening to call for a boycott of Amazon.com if they attempt to assert this patent as they did their infamous 1-Click patent:
"If Amazon begins attacking anyone over this, we will relaunch the boycott of Amazon," Stallman wrote in an email to ZDNet.
To read my quick-and-dirty analysis of its first Claim, click here.
The Merc has a great article on how the RIAA bashes P2P out of one side of their mouth while secretly using data from the networks to boost sales of their CDs. Check out this tasty bit:
Record-label executives discreetly use Garland's research firm, BigChampagne, and other services to track which songs are traded online and help pick which new singles to release. They increasingly use such file-sharing data to persuade radio stations and MTV to give new songs a spin or boost airplay for those that are popular with downloaders.
Some labels even monitor what people do with their music after they download it to better structure deals with licensed downloading services. The ultimate goal is what it always has been in the record business: Sell more music.
``I know of a case where an artist had obviously gone with the wrong single, and everyone loved this other song they had on their record,'' said Guy Oseary, Madonna's business partner and head of her label, Maverick Records. ``In the world of what we do, it's always good to have real information from real fans.''
Maverick used BigChampagne's 100-city breakdown of popularly downloaded songs to persuade radio stations to start playing a new band, Story of the Year, during prime daytime listening hours instead of at night.
The online data revealed that despite Story of the Year's lunar rotation, its single ``Until the Day I Die'' ranked among the top 20 most popular downloads, alongside tracks from Blink-182, Audioslave and Hoobastank that received significantly more airplay. And when the band performed in a city, ``we didn't necessarily see the phones blowing up at radio, but we saw download requests for the song skyrocket as they went through,'' said Jeremy Welt, Maverick's head of new media.
Armed with this data, Maverick fought for more airtime at radio, which translated into more CD sales. Story of the Year's album, ``Page Avenue,'' just went gold, selling more than half a million copies....
Folks keep asking why more artists aren't breaking into the mainstream through P2P. I think this may provide some answers -- they are; the record labels are just taking all the credit.
[ed-Sorry for the lack of links/source. This was sent via email. I think it's from Variety.]
Update:here is the link to the Variety story, although a subscription is required to see the whole thing.
By MEREDITH AMDUR
Is Hollywood to blame for the music industry's woes?
According to market research group NPD, it's not just illegal downloads of electronic MP3 files that are eating into traditional music sales but the ever-increasing popularity of DVD movies.
In a survey of consumers who admitted to spending less money on CDs in the last year, some 21% blamed an increased spending on DVDs for their reduced appetite for CDs. Only 15% of respondents blamed their DVD habit in the same survey a year and a half earlier. NPD noted that the increase was the largest single jump in its survey. At the same time, the number of consumers who cited downloading as their excuse for lower CD spending fell from 30% in 2002 to only 21% this month.
NPD, which just finished up a study into understanding why people are buying less music, said the chief reasons remain the high price of CDs (48% cited) and the general quality of content available recently (42%).
One household entertainment budget
While music and movies are vastly different pastimes, NPD analyst Russ Crupnick argues that the decline in CD sales is increasingly attributable to the rapid rise in DVD sales. (Similarly, many publishers believe the lure of inexpensive DVDs, available in big chains like Borders, has eaten into book sales.) Researchers note that purchases and rentals of movies and music, along with videogames, typically come out of the same household budget for entertainment, so an increase in one can have a direct impact on the other.
"As DVD prices fall, especially for catalog titles, the price-to-value proposition only gets higher," noted Crupnick.
NPD reported that the average full length CD sold for a still-hefty $13.47 in the fourth quarter of last year. This price represents a fairly modest 2% reduction from the same period in 2002 and 4% down from 2001. Many DVD movies can be purchased for $15 or less.
As many readers might know, there are three ongoing concurrent challenges to the recently passed Partial Birth Abortion Ban in court these days. In fact, trial in the San Francisco Case was scheduled to begin today.
Part of the issues before the courts is whether or not so-called "partial birth" abortions are ever medically necessary to preserve the health of the pregnant woman. (The Ban does not include any exception for such circumstances). Congress found that such procedures were never medically necessary. Planned Parenthood and other abortion providers disagree. As part of its preparation for trial on this issue, the U.S. Gov't sought to subpoena the medical records of women who have had the procedure. PP and the other providers sought to quash the subpoena. The district court in Chicago quashed the subpoena and the Government appealed the the 7th Circuit for reversal. Just the other day, the 7th Circuit handed down their opinion (penned by the well-known hand of Judge Posner) affirming rejection of the subpoena.
While the opinion is interesting for any number of other reasons, I found Posner's reference to Internet privacy (or the lack thereof) as a reason particularly interesting:
This is hardly a typical case in which medical records get drawn into a lawsuit. Reflecting the fierce emotions that the long-running controversy over the morality and legality of abortion has made combustible, the Partial-Birth Abortion Ban Act and the litigation challenging its constitutionalityand even more so the rash of suits around the country in which the Department of Justice has been seeking the hospital records of abortion patientshave generated enormous publicity. These women must know that, and doubtless they are also aware that hostility to abortion has at times erupted into violence, including criminal obstruction of entry into abortion clinics, the firebombing of clinics, and the assassination of physicians who perform abortions. Some of these women will be afraid that when their redacted records are made a part of the trial record in New York, persons of their acquaintance, or skillful Googlers, sifting the information contained in the medical records concerning each patients medical and sex history, will put two and two together, out the 45 women, and thereby expose them to threats, humiliation, and obloquy. As the court pointed out in Parkson v. Central DuPage Hospital, supra, 435 N.E.2d at 144, whether the patients identities would remain confidential by the exclusion of their names and identifying numbers is questionable at best. The patients admit and discharge summaries arguably contain histories of the patients prior and present medical conditions, information that in the cumulative can make the possibility of recognition very high.
And check out this rather empathetic section:
Even if there were no possibility that a patients identity might be learned from a redacted medical record, there would be an invasion of privacy. Imagine if nude pictures of a woman, uploaded to the Internet without her consent though without identifying her by name, were downloaded in a foreign country by people who will never meet her. She would still feel that her privacy had been invaded. The revelation of the intimate details contained in the record of a late-term abortion may inflict a similar wound.
An interesting new study from Harvard and UNC economists finds that file-sharing may not, after all, significantly affect CD sales:
A longstanding economic question is the appropriate level of protection for intellectual property. The Internet has drastically lowered the cost of copying information goods and provides a natural crucible to assess the implications of reduced protection. We consider the specific case of file sharing and its effect on the legal sales of music. A dataset containing 0.01% of the world's downloads is matched to U.S. sales data for a large number of albums. To establish causality, downloads are instrumented using technical features related to file sharing, such as network congestion or song length, as well as international school holidays. Downloads have an effect on sales which is statistically indistinguishable from zero, despite rather precise estimates. Moreover, these estimates are of moderate economic significance and are inconsistent with claims that file sharing is the primary reason for the recent decline in music sales.
AP had an interesting article the other day on the declining number of professional country songwriters in Nashville. The article is mostly a lament about the loss of a culturally significant and important profession, but it also speculates on reasons for the decline, including corporate mergers, media consolidation, and music piracy:
Herbison puts much of the blame on radio consolidation, which he says has made it tough to get airplay and the royalties that come with it. Nine years ago, he said, there were 5,400 country music stations, compared with 1,700 today. The stations' music playlists have also been shrinking to make room for more commercials and talk shows, he said.
"Three people program 85 percent of all country stations in America," Herbison said. "They sit in office towers and don't know George Jones from George Clooney."
Songwriter royalties from CD sales are about 8.5 cents per song; that's usually split between the writer and the publisher. Often, the songwriters' cut is even less because he has to share it with a co-writer.
The big money for most successful songwriters is from performance royalties, which are paid when a song is played on the radio.
"The biggest lick a writer can make is having a single that does good on radio," said Fred Knobloch, who has written songs for Faith Hill, George Strait, Ray Charles and Trisha Yearwood. "You want singles, and you want them bad."
But there are fewer big record labels to release and promote those singles. A series of mergers has left only five major music companies: Universal, Warner Bros. and EMI, plus Sony and BMG, which are planning to merge.
Many in the industry - writers, producers, musicians, publicists - have lost their jobs in the shuffle.
"I get at least a call a week, sometimes two, from people who had jobs in this business a year ago that are looking for work," Knobloch said.
As for music piracy, or downloading music for free from the Internet, everyone believes it's a problem, but not the worst one. Ultimately, many predict, the technology will help songwriters and performers more than hurt them. The challenge now, they say, is for the record companies to catch up to changing technology and consumer demand.
A commenter over at Slashdot has calculated, given the current odds of being sued by the RIAA for file-sharing, how much you would need to save every month to pay off your eventual settlement.
The magic number? $0.01483 per month. Even assuming the RIAA stops settling and gets $1,000,000.00 judgments against every defendant, the number only goes up to about $5.00 per month.*
* Gee, haven't we heard that amount mentioned somewhere else recently?
Here's the text:
Given your numbers an illegal file sharer can calculate their monthly financial risk from RIAA lawsuits.
Your numbers are:
Time (T)=8 months
With monthly financial risk = (P*C)/T, if each month you put away 1.483 cents, you would on average have enough money to pay your settlement fees by the time you were sued.
Now assume that the RIAA gets more aggressive and settles less, and through the courts gets a $1 million verdict in 100% of the people it sues (1977 people / 8 months). The monthly financial risk then is $4.94 a month.
In an era where copyrights seem to come back from the dead to inhibit the creativity of the living, it's not without some sense of irony that one of the first "modern" cult films to enter the PD is about zombies who come back from the dead and eat the brains of the living.
Bway.net is hoping to lure RIAA wary customers with a new anonymous DSL service dubbed AnonDSL. The company says the service is "the ultimate tool for protecting your identity from tracking by the RIAA, MPAA or anyone else" because it makes your "online activities untraceable." According to the product's FAQ, Bway claims users "are entitled to privacy on your Internet connection" and Bway has "created this service to meet that need".
Unlike these other services [like AnonX], Bway.net says their new service doesn't make use of proxy servers. While the company won't go into specifics, Bway's Joe Plotkin informs us it's "a combination of dynamic addressing and our decision not to retain logs on this service." Bway likely assigns a special pool of rotating IP addresses to users who subscribe to the service, but doesn't keep logs of the leases.
When the RIAA or Lars Ulrich comes knocking, Bway can only confirm that the user was one of their customers, but not which customer; with no amount of legal pressure able to change that. Plotkin notes the company simply "cannot supply information we do not possess."
An interesting approach, to say the least. The RIAA's current war against file sharers depends on the ISPs maintaining the data necessary to unmask the end user based upon correlating IP addresses with his or her historical usage. Growth of services like this would certainly push the RIAA either to improve its evidence gathering methods or advocate for some kind of mandate that ISPs log their users' IPs and maintain those logs. The first may present both fiscal and technological challenges to the RIAA; the second would create a scary precedent for undermining online anonymity.
Mike Godwin @ PK has released his "Everything You've Always Wanted to Know About DRM But Were Afraid To Ask" 40-page primer. A free PDF is available here.
I haven't read it yet, but Mike's a smart lawyer and knows his tech stuff, so I expect this will be a good read. A quick skim of the contents shows that it covers both encryption and watermarking systems as well as DRM's application to P2P nets. Mike concludes with his own vision of a "humane" DRM world with minimal government regulation and negligible effects on public domain materials. I'll post more after I finish my first detailed pass. If you've already plugged through it, feel free to post your thoughts.
KoreaTimes runs a story today about the inevitably brewing conflict between mobile device makers and the music industry over use of MP3s:
LG Electronics, the world's fifth-largest cell phone maker, last week started selling its LP3000 model, an MP3 phone that can save 16 music files at a time.
The Korea Association of Phonogram Producers (KAPP) claimed the rollout is against copyright law and said it will seek to block sales of the LP3000.
The organization of the music producers also stopped providing any phonograms to the LG-made MP3 phones starting March 12.
LG Electronics countered that it has incorporated digital rights management (DRM), solutions devised to prevent illegal play of music files, into the LP3000 phones.
However, the KAPP claimed that already back-door programs enabling free play of music files via the LP3000 are available on the Internet.
Following LG, the world's third-biggest cell phone maker Samsung Electronics also plans to release a similar phone within this month.
As the article suggests, this issue is only going to intensify. The RIAA has had enough trouble tracking down infringers based on home ISP accounts. Wait until they try to go after mobile devices, which can be shared, sold, or stolen with incredible ease. DRM can't keep ever song under lock and key. So what's the solution, Trusted Phoning? I hope not...
The Barenaked Ladies and Red vs. Blue have teamed up: at their live concerts, the Ladies are showing two exclusive machinima videos from the Red vs. Blue folks.
It's a neat triple play. Bungie encourages people to make videos using their Halo game engine and gets back great promotional exposure for the game. Red vs. Blue enlists the services of a major band in getting new fans and selling their compilation DVDs. And the Barenaked Ladies get an additional draw to their live shows: something not available anywhere else. File this one under "new horizons in clever business models."
Several months back, AT&T Research released a report finding the 77% of all pirates movies came from sources inside the movie industry. Such findings were further confirmed recently with the investigation of Carmine Caridi, an Oscar screener accused of distributing films on the net.
Today, the Smoking gun released documents from an FBI investigation implicating yet another Hollywood Insider -- this time at Fox:
MARCH 17--The piracy wave vexing Hollywood has hit particularly close to home for one studio, The Smoking Gun has learned. Secret Service agents last month raided the Los Angeles home of a Fox Entertainment employee suspected of involvement in an online conspiracy to distribute pirated films like Old School, X-Men 2, and The Matrix Reloaded. According to the below Secret Service affidavit, more than a dozen illegally duplicated movies were actually housed on a Fox computer server (along with pirated computer software and games), where they were accessed by members of a "warez" group trafficking in such bootlegged material. Lisa Yamamoto, the 45-year-old Fox employee whose home was raided, is allegedly a key member of that "warez" group. Last November, in the course of an investigation into an unrelated computer intrusion, Fox gumshoes stumbled upon the cache of pirated films, and immediately called in the feds. Along with unwittingly storing the titles, Fox was also paying for the bandwidth used when ring members downloaded the films. Yamamoto, who has yet to be charged in the probe, did not respond to phone or e-mail messages left for her by TSG.
The Seattle Post-Intelligencer ran an article today about automobile manufacturers who are frustrating independent auto mechanics by locking down their technologies with secret access codes:
Gary Putman is an accomplished mechanic with bills to pay and a business to grow.
Yet more and more these days, he's forced to wave customers away from his popular shop in West Seattle. He literally can't crack the computer code he needs to diagnose and fix an assortment of maladies ranging from climate systems to brakes to electrical glitches that commonly strike late-model cars.
"If you don't have the code, you lose the job. They have to go to the dealers. It's an illegal monopoly, in my opinion. It happens enough that it's a real problem," said Putman, who owns Westside Import Repair.
Putman isn't alone. Across the nation, professional mechanics and weekend tinkerers alike are confronting a new reality in today's highly computerized cars -- to fix the car, you first have to be able talk to the computer. And that's where the trouble starts. More often than not, the code is in a language understood only by auto manufacturers.
Even locksmiths are annoyed because these days the keys to some cars contain computer chips, and to replace them, a locksmith needs the correct code.
The article goes on to talk about a recent effort in Congress to pay a bill that forces auto manufacturers to release this information publicly. What the article doesn't discuss, however, is the underlying principle being threatened here: interoperability. Numerous professionals perform services on the devices we purchase. For the cars here, they are mechanics and locksmiths, but it could be service/repair folks for items like copy machines, phone lines, computers, dishwashers, etc. The legacy of independent service providers, both big and small, is quite long and historic in this country.
The article supports this, pointing to what the automakers appear to fear the most -- competition for interoperable parts:
Automakers are fighting the legislation; they believe the real goal is to obtain proprietary "calibration codes" that are the blueprints for how parts are made. With that information, Territo said, independent mechanics and parts manufacturers could duplicate major components such as fuel injectors that automakers have spent millions of dollars developing.
While the "security through obscurity" approach described in the article seems anti-competitive on its own, I'm much more concerned with what may be the next step -- DMCA anti-circumvention lawsuits. Automakers could well declare that their "secret codes" are access controls on their systems software and that mechanics who figure out the codes are "circumventing" them. Sounds a bit silly, but not to far off from the theories in Skylink and Lexmark.