2003 April 29

(entry last updated: 2003-04-29 19:45:58)

Traveling until Friday – see you then for followup.

  • Copyright Angst [via Tech Law Advisor]

  • And Donna’s got some new links to explore.

  • I’m getting ready to travel the next two days, so this entry is going to be overly brief: Ed Felten’s discussion of Terry Fisher’s CD economics information is limited because the analysis assumes a mythical “average CD.” It’s easier to understand what’s going on by looking at the profit picture for a CD as a function of sales. Here are some slides (Oct 30) from this year’s ESD.10 that I used to deconstruct this. Start with Slide #26 (“What is the business model that underlies this industry?”) and see what you find – note that the crossover to profitability at 500,000 units matches most industry claims.

    Note: Ed’s conclusion that retailing is in deep trouble with respect to Internet distribution is dead on – and they have been working to preserve a piece of whatever the new sales model will be for some time. (See this SFGate piece, something from the Boston Globe, and something from Wired News)

    I’ll have more to say (if only to explain myself!) when I get back.

  • The RIAA throws down the gauntlet: Music Industry Sends Warning to Song Swappers [pdf]

    The record industry opened a new front in its war against online piracy on Tuesday by surprising hundreds of thousands of Internet song swappers with an instant message warning that they could be “easily” identified and face “legal penalties.”

    About 200,000 users of the Grokster and Kazaa file-sharing services initially received the warning notice on Tuesday and millions more will get notices in coming weeks.

    CNet: RIAA to file swappers: Let’s chat; Wired News: RIAA IMs: We’re Watching You

  • As we now know, the Apple music store sells AAC formatted files. How do they compare – Slashdot references one and gets comments: AAC vs. OGG vs. MP3.

    A couple of comments point to an issue from The Audible Past: interpretation and perception of playback is not just a subjective experience, it is also a learned skill. In general, communities always assert that today’s sound reproduction technology is “perfect,” when in fact its “perfection” is measured against a scale that is normatively defined and artificially manipulated. Just consider the process that goes into making a CD and compare that with a public performance of a song – which is the “perfect” experience? And, more importantly, how do you know? (see this Slashdot thread for an indirect example of the problem)

    Not to say that comparisons are a bad thing; but it’s not too terribly different than arguing about religion – it is what you have chosen to make of it.

    Oh, and as far as the DRM works, see this thread on the AAC->CD->MP3 route

  • The NYTimes has an article on digital preservation of old opera recordings. [pdf] No discussion of the copyright complications, which must be interesting.

  • On the other hand, who can really complain about pictures (see below) given the Dixie Chicks’ latest ploy. Salon gives the rundown on their recent publicity push.

    The band may have gotten more attention posing nude for the cover of the current Entertainment Weekly, with phrases like “Dixie Sluts,” “Saddam’s Angels” and “Traitors” stamped on their bodies. But it was the stubborn refusal they showed Sawyer that cut deepest. Yes, Maines, as she did in her apology, said that her statement was “disrespectful” and “the wrong wording with genuine emotion and question and concern behind it.” But she didn’t apologize for those questions. “I ask questions. That’s smart, that’s intelligent, to find out facts,” she said.

    The sisters, Emily and particularly Martie, not only defended Maines but amplified her comments. Given an hour for prime-time damage control, the Dixie Chicks instead stopped the network cheerleading for the war dead in its tracks and expressed the honest confusion many people are feeling far more effectively than any of the strident rhetoric that has emanated from the left as well as the right.

  • Missed this yesterday: Scientists protest EU software patents

    Thirty-one scientists, including three from Britain, signed the petition earlier this month, criticizing the proposal and demanding that the European parliament adopt a text that would “make impossible, clearly, for today and tomorrow, any patenting of the underlying ideas of software (or algorithms), of information processing methods, of representations of information and data, and of interaction between human beings and computers.”

    …In the petition, the scientists said that the practice of the European Patent Office (EPO) over the past few years of granting patents for some “algorithms, software ideas, data structures and information processing methods” was an “abuse” that would be presented as the status quo by the current patent proposal. “In fact, this is a considerable extension of scope of patentability, in breach of the spirit of the European Patent Convention that excludes from patentability mathematical methods, computer programs and presentations of information,” the petition said.

  • Donna’s latest newsletter is out; and she’s back online with a summary.

  • Matt digs a bit more into the Aimee Madeleine Deep question. Note that the Google cache still has a couple images of Aimee; maybe it’s just the California water, but it is hard to reconcile the image to the right with the ones that you can find on her site these days. Or the pic from this CNet interview and this Australian one, wherein the reporter purportedly met her. But, she wouldn’t be the first (nor would she be the last) to construct a web persona to get attention, either. Whatever.

  • This week’s Tangled Web at Billboard describes the online activities of Wilco and Nora Jones – exploring the limits and opportunities of digital distribution at the artist level – albeit with label involvement. [pdf]

  • The Register revisits the Torvalds neutrality announcement on DRM in the Linux kernel. Noting the relative lack of continuing fallout, Alan Cox suggests that the real question is a legal one:

    “Really the question is ‘can you use GPL’d code in a signed system’. The answer is a legal not a technical one and nobody can change that. It may be that future GPL versions take a clearer line on it (as GPLv2 did with patents) but for current code the situation is simply ‘Ask your lawyer’.”

    Upon asking one, the following hypothetical emerges:

    “How they do they deal with digital signing a kernel for use in an embedded environment – violating the GPL – without imposing restrictions on the GPL?”

    “DRM is a media lock; interfaces aren’t copyrightable – so the GPL won’t help you there.”

    A host of as yet unresolved imponderables.

    Update: The accompanying piece on Steve Jobs and DRM.

  • The Register reports that Hilary Rosen is part of the team helping to draft copyright laws for the new Iraqi government. Slashdot discussion: Hilary Rosen from RIAA will write Iraq’s Copyrights?

  • More on the Apple music service:

    • The Boston Globe has two articles: Apple unveils service to sell 200,000 digital music titles online [pdf] and Who is, and isn’t, on bandwagon [pdf]. Most notably, The Globe points out that, while the copy protection limits the distribution of the original AAC file, once burned to a CD it should be convertable into an easily redistributed MP3. However, I don’t know if that’s actually been tested.

    • New York Times: Apple Offers Music Downloads With Unique Pricing [pdf]

    • News.com News analysis: Apple’s music: Evolution, not revolution:

      Apple essentially used two features to persuade the labels to give the company the benefit of the doubt. The ease of purchasing music was a draw. So was the light, almost invisible layer of digital rights management software that Apple built in-house and applied to the songs.

      Dubbed Fairplay, the rights-management software lies on top of Apple’s iTunes and QuickTime software, and performs tasks such as counting how many computers the songs can be played on. Apple executives declined to discuss whether the software could be used for other media, such as providing protection for Quicktime-based downloads for video-on-demand services. Quicktime has previously been left out of movie-download services such as Movielink because of its lack of strong copy protection.

      As Apple moves its service to the PC platform, which it said would happen later this year, the rights-management issue could set up more industry tension. Microsoft has dominated that platform with its Windows Media rights-management tools, while Quicktime has been used largely for unprotected works.

      Other music services welcomed Apple’s marketing muscle to the business and said they were eager to win the same rights that Jobs touted.

    • Farhad Manjoo at Salon loves it: I have seen the future of music and its name is iTunes

      Because Apple’s service doesn’t require a subscription, though, its catalog size might not be much of a problem. For a while, people will probably just use both the Apple service and the free services, putting up with the frustrations of something like Kazaa only when the song they’re looking for isn’t available in iTunes. You can see how this scenario could prompt many labels to release more and more of their songs to Apple: If giving your song to the Apple store will reduce the number of people who steal it, why wouldn’t you want your song on the shelf?

      Except for some well-paid congressmen, nobody likes the music industry anymore. In the public imagination, the companies that brought us the Beatles and Madonna are about as trustworthy as those that bring us tobacco and firearms. Jobs’ new service might change that. Finally, it’ll be possible to listen to music as Napster promised — without the worries, without the frustrations, as music was meant to be enjoyed. If it takes off, the system — and the clones of it that will surely follow — could significantly boost the record labels’ bottom line, and Apple would certainly benefit as well.

      And down the road, perhaps, music itself will change. If tracks are sold one by one, can the death of the full-length album be far off? (The CD, as a physical medium, surely can’t last the decade.) What will happen to top-40 radio? If innovative indie stars enjoy as much access to your desktop as sultry teenagers, will we ever have to listen to sugary pop again?

      These are the sorts of questions everyone asked when Napster came along, and we never quite got our answers. Perhaps, now, we’ll finally see what the future has in store for us.

    • BBC: Apple to offer cheap online music

    • Steve Jobs blesses DRM, and nothing happens

2003 April 28

(entry last updated: 2003-04-28 18:29:38)

Ugh! I thought I was going to get ahead of the curve today, but the gateway server for my building seems to have died around 7:10 AM today, so I’m offline (and inaccessible!) until MIT Network Services decides to come by and restart the server. 🙁

8:13 AM – The gateway’s back, but traffic is really sluggish.

  • Benny Evangelista gives a rundown on the ubiquity of the MPAA’s efforts to protect their copyright monopoly, kicking off with the super-DMCAs. [pdf]

    “These guys are everywhere,” said Fred von Lohmann, senior intellectual property attorney for the Electronic Frontier Foundation (EFF), a digital rights advocacy group in San Francisco. “They’re pushing their agenda in places we haven’t even begun to look at.”

    “Everywhere I turn over a stone, there’s been a bevy of MPAA people who have been working that area for years,” he added. “I almost never encountered that with the RIAA (Recording Industry Association of America).”

  • The Register reports on something that’s been brewing for a bouple of days: MS issues Visual FoxPro OS statement …, wherein Microsoft asserts that the EULA makes it illegal for someone with a legit license to run the application on Linux.

    Prior to the demonstration, Hentzen received a call from Ken Levy, Microsoft’s Visual FoxPro marketing manager, telling him that he would be in violation of the EULA (End User Licensing Agreement) for VFP if he demonstrated (or ran) the development tool on Linux.

    But developers had previously been led to believe from Microsoft that “as long as licenses were in order” running VFP on Linux as a developer environment was permissible, if not exactly encouraged.

    “It appears that Microsoft is trying the tie its applications (developer tools) to their operating system,” Hentzen told us.

  • The Apple iTunes Music Store is open (press release) – new iPods, too

    It’s easy, it’s fair and it’s legal

    The iTunes Music Store is fast and convenient for you, and fair to the artists and record companies. In a nutshell, you can play your music on up to three computers, enjoy unlimited synching with your iPods, burn unlimited CDs of individual songs, and burn unchanged playlists up to 10 times each.

    The CNet piece: Apple unveils music store

    “We were able to negotiate landmark deals with all of the major labels,” he [Jobs] said of the company’s newly launched iTunes Music Store. “There is no legal alternative that’s worth beans.”

    … The songs cost 99 cents each to download, with no subscription fee, and include the most liberal copying rights of any online service to date. Jobs has been an outspoken opponent of so-called digital rights management (DRM) in the past, arguing that limitations on digital music will undermine the market for legitimate content.

    Slashdot discussion: Apple Introduces iTunes Music Store, iTunes 4, new iPod;
    Denise Howell’s thoughts

    The Register: Apple launches 99c a song music service

    Slate’s Paul Boutin: The 10-10-220 of File-Sharing

  • Derek’s got some good comments on the recent rulings. On point #6, however, I would ask him to elaborate upon the basis for his conclusions <G> – although I would agree that there are definite indications (beyond the pictures) of something odd about her site. Nevertheless, it’s a worthwhile place to check in on for updates on AIMster/Madster.

  • Declan describes his upcoming Lessig-Lofgren event today at Stanford: A modest proposal to end spam. And it looks like Declan’s unconvinced by Larry’s proposal:

    It’s a great idea in theory. But I doubt it will work in practice. If Congress even gets around to enacting it, instead of some of the competing antispam bills, I think Lessig will have to kiss his current job goodbye.

  • As Larry pointed out, this group does seem to be intent on preserving the open architecture of the Internet: Slashdot cites this San Jose Mercury News article, Disney, Microsoft and others form alliance to lobby FCC on Internet access, which describes the lobbying efforts of the recently-formed (well, last November to be exact) Coalition of Broadband Users and Innovators (see this December letter and the FCC response) – Slashdot discussion: Companies Join Together to Maintain Open Internet – and a little more detail from law.com

  • A chance to learn a little more about professional music recording (and an interesting addition to what I’ve been learning by reading The Audible Past: Cultural History of Sound Recording): What, no pitch correction? [pdf] – via Instapundit

    In the past, a producer would force singers to redo subpar vocals again and again, but “now they just have them sing it five times in a row, edit that together and then use Pro Tools” to tune it, according to Nevers.

    “My own opinion is that it can be a very, very handy tool, but unfortunately now it is something that is cropping up on the records of artists who can actually sing,” says Andy Karp, vice president of A&R for Lava/Atlantic Records. “You’re hearing [computer program] Auto-Tune all over, and that’s a shame. It also maybe suggests to record companies that they need to focus on finding artists who sing well as opposed to just look good.”

    According to several producers, the practice of tuning and correcting vocals is especially prevalent in mainstream country music. Studio software can help artists hold a note for what seems like forever, and can help them sound as if they can belt out high notes as easily as Patsy Cline could.

    … Pitch correction is “more and more economical and easier to use, so artists and producers are saying to themselves, `Why not?’ especially since many singers are simply incapable of performing in perfect tune, even though they may be great communicators,” he says.

  • Wired’s brief interview with Rick Boucher [D-VA] is online

  • A datapoint in alternative distribution models from kuro5hin: The Tip Jar as Revenue Model: A Real-World Experiment

  • The NYTimes discusses the recording industry’s push for DVD singles [pdf]

    DVD singles, which sell at list prices from $7.98 to $9.99, may be an avenue for labels to make up lost sales in the traditional singles market. Shipments of CD singles, which never received the support labels gave vinyl 45’s, fell to 4.5 million last year from a high of 66.7 million in 1997, according to the Recording Industry Association of America.

    The new DVD format may also be a weapon to combat illegal file-sharing, especially among young listeners who have become accustomed to downloading audio tracks free but are willing to pay for products in the popular DVD format.

    … The task for record labels is getting young buyers into the habit of buying DVD singles now, so they continue paying for them even when video footage is quickly downloadable, said Silvio Pietroluongo, who oversees Billboard’s Hot 100 singles chart. When music companies shunned CD singles in the 1980’s and 90’s in favor of promoting full-length discs, they taught a whole generation of listeners not to look for them, he said.

    At this point, sales of DVD singles hold more promise than profit

  • To read today’s Boston Globe [pdf], you’d believe that Apple’s Steve Jobs will save the music business by showing them how to adapt to music downloads. It’ll be something to see.

    The New York Times’ article [pdf] is a little more subdued, plus it cites the fact that Hilary Rosen will attend the announcement.

    Hilary B. Rosen, the chief executive of the Recording Industry Association of America, said she believed Apple had struck an industry-friendly balance. Apple’s music service “has compatibility with a hardware product that is elegant and easy to use,” said Ms. Rosen, who said she planned to attend Apple’s news conference. “The Apple system has the potential to do for music sales what the Walkman did for the cassette,” she added.

    CNet’s coverage: Apple tunes up for music pitch

2003 April 27

(entry last updated: 2003-04-27 23:22:11)

I’m supposed to be working on something else, so it’s going to be a little terse today

  • The NYTimes has letters to the editor on the subject of the RIAA lawsuits against four college students for copyright infringement because of music file sharing: Downloading Music: A Right or a Crime? [pdf]

  • Denise Howell points out this LATimes article: Faster Than the Speed of Software [pdf]. It is a stunning spin on the notion of ubiquitous DRM – it’s good for you:

    But on one important front, the five major record companies are ahead of the technologists — Microsoft Corp. and RealNetworks Inc. in particular.

    In a little-known move, the major record firms have agreed to let consumers download an unlimited number of songs and listen to them wherever they go, for less than the price of one CD a month. As long as they keep paying subscription fees, users can have thousands of songs at their fingertips.

    That could transform what it means to “buy” music. Instead of paying for prepackaged collections on plastic discs, consumers would pay to access an enormous and growing online catalog of individual songs.

    The problem: A new generation of portable players designed for music that’s rented, not owned, needs new software to function — something programmers at Microsoft and Real haven’t been able to design.

    Sounds promising, right? Then you get to the meat of the argument, and it starts looking sinister:

    That’s because of the labels’ conflicted attitude about selling music online: They want to take advantage of the market but are so concerned about piracy that they demand electronic locks on their song files.

    To work with the unlimited-music services the labels endorse, a device has to be able to unlock files for listening, then lock them back up when a subscriber stops paying the monthly fee. A computer can do that, but today’s portable music players can’t. They are not smart enough to know which songs came from the subscription service, when their licenses expire or are renewed and how to keep their internal clocks running when their batteries die.

    Microsoft was supposed to deliver software to power such devices at the end of last year, but the company now is telling customers it won’t be ready for months. At Real, an executive says the company is making progress but is hindered by “pages and pages” of demands by some of the labels regarding “how this stuff has to behave.”

  • Harry Shearer gives the industry what-for in the NYTimes today, raising an issue that has been mentioned before – a focus on youth music is a key element of the current controversy [via Matt]: Rx for Music Industry: Seek Out the Old Geezers [pdf]

    Here’s a business model with a future: sue your customers. That’s what, as of this month, the recorded-music industry has been doing. It filed suit against four college students involved in Internet file-sharing (in which compressed “files” of music are swapped, Napster-style), asking for billions of dollars in damages. Yes, billions. Interestingly enough, the Bush administration, known to be opposed to frivolous lawsuits and in favor of tort reform, has weighed in on the side of the industry. Let’s go after those students. That’s where the money is.

    …The industry line has been that file-sharing caused these declines. Others point to the fact that boomers may have finally bought, on CD, copies of all the music they had already purchased on vinyl. And Andreas Schmidt, of the music giant Bertlesmann, said the unsayable: “We didn’t put that much good stuff out.”

    Nobody, let’s remember, twisted the arms of the record and movie industries into focusing their product and their marketing muscle almost single-mindedly (if that’s not being too generous) on people in their teens and early 20’s.

    …As events have proved, there is one crucial problem with this demographic cohort: it has much more time than money. And, if these music lovers are enrolled at a university, they probably also have access to a superfast Internet connection, which makes the usually cumbersome process of downloading music files as easy as checking your e-mail.

  • As someone currently reading All the Rave, this NYTimes review [pdf] is confusing. Matt Richtel contends that the book fails to point to the excesses of the Internet bubble, while (at least as far as I have read it) as best as I can tell, it’s about nothing but that – but maybe the latter half of the book will change focus. I will say that Richtel understates the characterization of John Fanning when he calls him a “mercurial entrepreneur” – “slezeball scumbucket” would be a much better summary, but maybe the Times style book doesn’t allow that usage.

  • Grokster decision fallout:

  • Wired on the Verizon decision: Online Anonymity Comes Under Fire

  • Leopard Can’t Change Spots Department: Microsoft’s XML support in Office is strangely limited and segmented, forcing most to rely upon the standard Microsoft-packaged XML schema because support for user-defined schemas is not included in all versions of Office – and many worry that Microsoft’s schema is so complex/out of spec/protected that the purported “openness” of the Office XML is a joke.

  • Off-topic: In case you didn’t believe CBS, try the BBC: No reality show for OJ Simpson

    While Simpson said he would not appear in the show, he said he may features [sic] as a news correspondent in the upcoming murder trial of actor Robert Blake.

    “I’d love to do it,” he said. “I think I have a lot of insight. I don’t know if he’s guilty or not but I know there’s no such thing anymore as innocent until proven guilty.”

2003 April 25

(entry last updated: 2003-04-25 18:58:12)

I have to wonder if Judge Bates ever pined during the Verizon trial for the "good old days" when copyright was a specialized little legal backwater, the consequences of infringement were civil penalties and the prosecution of the infringer didn’t raise such vital Constitutional issues. Who’d have thought the combination of digitization and connectivity would have changed things so much.

Oh, well – as all of us over the age of 40 know, the good old days never were quite what we remember them to be anyway.

Today’s schedule is out of control, so I’m only going to get to post a little this AM. With the Verizon ruling, expect that the legal weblogs, in particular, are going to have lots to say today.

  • Off-topic: Oh. My. God. And this is NOT from The Onion: O.J. Passes On Reality Show, But…

    (AP) Contrary to widely circulated reports, O.J. Simpson said Thursday he won’t be the star of a reality television show, but might consider becoming a news commentator for actor Robert Blake’s murder trial.

  • End of Free Redux: Technorati stats – www.nytimes.com: 6:55 PM; 244,409 weblogs watched; 9,760,297 links tracked; 5974 inbound blogs, 15742 inbound links

  • Interesting writeup on the recent DRM/Linux/Torvalds goings-on from the BBC tech writer Bill Thompson (what a picture! I would never be that brave)

    But if we are to push for greater respect for copyright and for digital rights management system among the network community then we need reciprocal action from the rights holders.

    …It is no wonder that the internet community is so suspicious of, and angry with, the rights holders and their defenders when we see this sort of heavy-handed action.

    Yet I still feel that the long-term answer is not be to abandon legally-backed copy protection, but to aim for a more reasonable approach to laws which can, if properly applied, act in the interests of us all.

    Apart from those who see any form of copyright as an infringement of their natural freedom, of course.

  • John Palfrey updates the status of the Massachusetts super-DMCA bill.

  • Slate reviews the interview of the Dixie Chicks by Diane Sawyer last night – well worth a read:

    Last night’s Primetime Thursday, which featured Diane Sawyer interviewing the Dixie Chicks about their recent woes, was one of those broadcast moments that make you want to put your foot through the television….

    …Well, I heard something not quite—what—honorable in Sawyer’s presentation of the affair: an attempt to take a trivial matter that had blown up into an absurd controversy, and blow it up even more under the guise of simply covering the story. Essentially, she asked the women to choose between abasing themselves on national television or stirring up more hatred against themselves. It was a depressing moment in an ugly time.

    For what it’s worth, I have profoundly mixed feelings about the war, and if I were to sit down with Natalie Maines, I’m sure we’d have much to disagree about. But, just so you know, I’m proud that the Dixie Chicks are from Texas. What’s more, I’m embarrassed that Diane Sawyer is a member of my profession.

  • Woo-hoo! Judge: File-swapping tools are legal [via Copyfight; note: Donna’s added analysis and other comments to this link]

    In an almost complete reversal of previous victories for the record labels and movie studios, federal court Judge Stephen Wilson ruled that Streamcast–parent of the Morpheus software–and Grokster were not liable for copyright infringements that took place using their software. The ruling does not directly affect Kazaa, software distributed by Sharman Networks, which has also been targeted by the entertainment industry.

    “Defendants distribute and support software, the users of which can and do choose to employ it for both lawful and unlawful ends,” Wilson wrote in his opinion, released Friday. “Grokster and Streamcast are not significantly different from companies that sell home video recorders or copy machines, both of which can be and are used to infringe copyrights.”

    The opinion. Slashdot discussion: RIAA, MPAA Lose Suit Against Streamcast and Grokster – with an pretty good comment describing how the judge elected to distinguish between Grokster and Napster.

    The Lawmeme writeup: Morpheus wins!Tech Law Advisor’s. More importantly, read Ed Felten’s “instant analysis” – and here’s John Palfrey’s. Hilary Rosen speaks (Cary Sherman only gets the easy press releases?)

    After reading the Grokster opinion, you can read the brief filed today in the Aimster/Deep case – since the tool purports to rely upon encryption to shield all participants in the file exchanges, Grokster and Aimster may share more than just a syllable.

  • I heard an interesting piece on WBUR‘s Morning Edition broadcast this morning describing the role of Clear Channel in the Boston play/musical scene and their efforts to circumvent/break the Actor’s Equity Association. Apparently, Clear Channel has a lot of control over touring productions as well as Boston’s entertainment venues, and increasingly Clear Channel is going with non-equity productions. (I’m listening to it right now at 8:55 AM) I can’t find a useful URL yet, but it’s worth listening for.

  • Today’s Slate has an article about one of the early proponents of copyright term extension; Mark Twain. Although Siva Viadhynathan‘s Copyrights and Copywrongs gives a lot more detail, this piece offers a little insight into the man’s attitudes toward money.

  • John Dean writes about the CARE Act in Findlaw. Interesting topic:

    One of the bill’s provisions has received almost no public attention, yet is very significant indeed. This provision deals with a long existing problem, and is entitled “Enhanced Deduction For Charitable Contributions Of Literary, Musical, Artistic, and Scholarly Compositions.” As its title indicates, this provision seeks to revive – in an appropriately modified form – the tax deduction for artistic works that once existed.

    …The cost of the paper, canvas, paint, clay, stone or artistic materials is usually nominal, and that means that the so-called creative works deduction, after 1969, basically amounted to no deduction at all. The valuation was low – indeed, insultingly low. As a result, many authors, musicians and artists stopped contributing their creative works, letters, research materials, interviews or uncompleted works-in-progress for charitable purposes.

    …In addition to its basic unfairness – the refusal to recognize the value of artists’ and writers’ work – current law also has an inequitable anomaly. The creator, as noted above, can only deduct his or her cost basis. But if a collector acquires such literary or artistic works, then donates it to charity, he or she may take a deduction representing not cost basis, but fair market value.

    Needless to say, fair market value is almost always higher than the actual cost basis of the work. Accordingly, many writers, artists and composers who might otherwise have donated or sold their work are letting them gather dust in their attics to be disposed of when they die. (The value of artists’ work generally rises when they die, and the total number of works they will produce, and their place is history, can be seen.)

    Meanwhile, the public loses access to culturally important materials.

  • This morning’s FoxTrot has serendipitous timing, given yesterday’s Verizon ruling. As does today’s User Friendly.

  • Verizon ruling coverage:

  • This morning’s Globe resurrects the Apple/music industry rumors with comments straight from the horse’s mouth:

    Apple confirms interest in music business

    Apple Computer chief executive Steve Jobs said some of the reports about the company’s interest in the music business are true. ”There have been a lot of rumors about a lot of things the last few weeks … and some of them are true,” he said when asked about reports that Apple wants to buy a music company. Jobs last week commented publicly for the first time on reports that Apple may spend $6 billion to buy Vivendi’s Universal Music Group. ”Apple has never made any offer to invest in or acquire a major music company,” Jobs said. According to a person familiar with the matter, Jobs has expressed interest in acquiring Universal Music, the world’s largest recording company. Such a purchase would provide Apple with a vast collection of songs for the online music service that it is expected to announce next week, analysts say. (Bloomberg)

    A teaser from Billboard: Apple Music Service Trumpets Ease Of Use

2003 April 24

(entry last updated: 2003-04-24 20:37:22)

  • Missed this: Glenn Fleishman writes [pdf] in the NYTimes about Internet giveaways and bandwidth fees. [via Matt]

  • End of Free Redux: Technorati stats (8:25 PM) – www.nytimes.com; 242,059 weblogs watched; 10,549,891 links tracked; 5980 inbound blogs (up), 15615 inbound links (down) (first noted change in numbers since day before yesterday)

  • Florida’s super-DMCA has been expedited for consideration tomorrow: Ed Felten and Kevin Heller have details

  • Even though a week’s worth of weather doesn’t usually get me to say it, this upcoming event, in addition to this week’s typical, dismal "spring" weather makes me think that maybe I am on the wrong coast <G>: Label/Bounty SPAM Legislation: Will Professor Lessig be Forced to Resign?

  • Verizon loses [pdf] – via Derek

    Bates also refused to stay his earlier ruling against Verizon until an appeals court considers the case, granting it only two weeks to seek such protection. Barring a reversal, Verizon must reveal the names of the subscribers to the RIAA, the trade group for the largest music labels.

    CNet: Verizon gets 14 days to ID file-swapper

    Here’s the opinion from the DC Circuit WWW page for recent opinions. I have a deadline to meet this evening, so I’m not going to be able to give an in-depth assessment of this opinion, but upon a one-time read through, it is probably more accurate to say that Verizon got creamed – this judge not only disagrees with Verizon (well, he agreed that Verizon had standing to argue the First Amendment rights of its subscribers), he completely buys the RIAA’s claim that (a) they are losing tons of money to copyright infringement and (b) that the RIAA will not argue mootness upon appeal if Verizon complies with the order in the next 14 days. Riiiiight.

    Moreover, the judge appears (remember, one-time-read) to believe that the fact that the requirements of the DMCA for a sworn statement from the petitioner for a subpoena is a sufficient basis to ensure that there will not be misuses of this “ministerial” clerical action to the detriment of subscriber privacy. So, that means the little guy is going to have to be prepared to somehow get a perjury complaint against the RIAA if s/he is feeling abused.

    Again, only a quick read-thru, but this looks terribly dismal.

    Update: Press release from Verizon

    Verizon today said it would immediately ask a U.S. Appeals Court for a stay of a lower court ruling forcing the company to reveal the identity of an Internet subscriber accused of music piracy. Verizon is seeking to protect a subscriber’s privacy following a decision today by U.S. District Court Judge John Bates to deny the company’s original request for a stay.

    …”Today’s ruling goes far beyond the interests of large copyright monopolists — such as RIAA — in enforcing its copyrights. This decision exposes anyone who uses the Internet to potential predators, scam artists and crooks, including identity thieves and stalkers. We will continue to use every legal means available to protect our subscribers’ privacy and will immediately seek a stay from the U.S. Court of Appeals. The Court of Appeals has already agreed to hear this important Internet privacy case on an expedited schedule.

    Go here to hear Cary Sherman crow

  • Since this seems to be a day about musician protest and Clear Channel, here’s something else from Billboard: Beasties Question U.S., Chinese Regimes

    On the American front, Yauch responded to a question about cuts in airplay for the anti-war Dixie Chicks, saying, “most of the media outlets are basically acting like cheerleaders for the whole war and for the Bush administration. Shortly after Sept. 11, some of these major corporations stopped playing things like John Lennon songs that just said anything about peace because they just wanted to be very careful not to do anything anti-American,” he said.

    Facilitating the trend, he added, “most of the radio stations are being bought up by Clear Channel and a few other corporations.”

  • The 321 Studios lawsuit (request for declaratory judgement in re their DVD copying software) has been postponed – court scheduling conflicts are cited.

  • Although the title is geeky, anyone worried about the super-DMCAs needs to understand this Slashdot discussion: More On Detecting NAT Gateways (note that NAT = "network address translation" – a standard tool for connecting a non-routable home network to a single Internet connection – and something that is arguably outlawed by the text of these laws.)

  • Linus Torvalds’ thoughts on DRM & Linux at Slashdot – he’s going to be agnostic about it and entertain incorporating the ability to manage signed materials – but he also makes an important point:

    Btw, one thing that is clearly _not_ allowed by the GPL is hiding private

    keys in the binary. You can sign the binary that is a result of the build

    process, but you can _not_ make a binary that is aware of certain keys

    without making those keys public – because those keys will obviously have

    been part of the kernel build itself.

    So don’t get these two things confused – one is an external key that is

    applied _to_ the kernel (ok, and outside the license), and the other one

    is embedding a key _into_ the kernel (still ok, but the GPL requires that

    such a key has to be made available as “source” to the kernel).

  • Mary Hodder discusses the Pam Samuelson interview in Technology Review (I’m not a reader since they changed their format, but I’m glad that someone is watching – Mary should archive the piece, as TR erects a costwall in much the same fashion that the NYTimes has done)

  • Derek Slater points to an interview of Siva Viadhynathan that exposes where he’s going with his upcoming book.

  • Howard Rheingold’s presentation (Cory Doctorow’s notes) to the Emerging Technologies Conference gets coverage in Wired

    “Our freedom to innovate is not necessarily going to be as free as it was in the pre-Internet era,” he cautioned. “We are at a pivotal point in the history of technology and a lot of assumptions should be questioned.”

    Rheingold said the explosive growth of Internet-connected PCs, handhelds and cell phones had dramatically altered the cultural landscape. Thanks to connected computers, passive consumers have been transformed into active users, who create as well as consume content.

    But vested interests — the music and movie industries, telecommunications companies and governments — are starting to clamp down politically and economically to protect their interests.

    “They would very much like to get us back to the days when there were three radio stations and one telephone company,” he said. “We’re going to have to fight to remain users and not be turned back into consumers.”

    …Rheingold, author of Smart Mobs, had planned to talk about the social implications of millions of cell phones and peer-to-peer connected PCs, but switched topics at the last minute to deliver a more urgent message to the hundreds of technologists in the conference audience.

    He told the assembled programmers and developers to lobby politically for their right to innovate, but also to figure out ways to move around political and legislative barriers.

  • Billboard describes the upcoming Dixie Chicks’ TV appearance to discuss their post-Bush-critique experiences. SFGate carries an AP Wire piece on this program, as well as the Chicks’ claims that they’ve been threatened, but remain firm that they have every right to be critical. (Salon’s got the wire piece on the subject.) With the demise of the NYTimes links, I can’t point you to Paul Krugman’s piece on the Clear Channel relationships, but you can see LawMeme’s summary as well as the excerpts that I posted in Furdlog. Otherwise, you can read this snotty editorial from Jane Ganahl from the SFGate/SFChronicle: Bush has artist’s singing a new tune. And, as you can see from the right, the Chicks are taking it to the May 2 Entertainment Weekly magazine.

  • Speaking of Clear Channel, Eric Boehlert has a new piece on them over at Salon. This time, it’s the politics of Hispanic radio consolidation – part of his ongoing series on radio consolidation in general, and Clear Channel in particular.

    Pending FCC approval, a new consolidated media, music, and radio powerhouse may soon be born. The $2.4 billion deal between the Hispanic Broadcasting Corporation, the leader in Spanish-language radio stations in the U.S., and Univision Communications — already the market leader in Spanish-language TV, cable and music — would create a new company that controls nearly 70 percent of Spanish-language advertising revenue in the United States.

    The deal is big and contentious, and involves politics, music and media — and, to make matters even more interesting, Clear Channel, the U.S. radio station conglomerate, has a starring role. Clear Channel is HBC’s largest shareholder, and the company has been accused by opponents of the deal of maneuvering illegally behind the scenes to exert control over HBC, as well as spreading rumors of drug use about the CEO of HBC’s chief competitor.

  • Looks like the investment in American Idol’s Kelly Clarkson is paying off – according to Billboard, her album has debuted at #1 on the charts. (The NYTimes piece – [pdf]) This masterstroke of packaging and selling market research as entertainment, and then selling the results of the research under a draconian contract is chilling – but nothing that you wouldn’t imagine after seeing Merchants of Cool.

  • CNet reports that the Australian authorities are getting into the student prosecution business, with the closing of MP3 WMA Land.

  • EMI has put what is claimed to be the bulk of their catalog online (BBC story), throught about 20 European online distributors. Mark Mulligan at Jupiter Research asks what this means for the European market.

    One question this initiative raises is just what do the major record labels have in mind for Europe? It seems that EMI have been a little more generous with the amount of content made available for their service than they have previously granted to third party distributors such as OD2. This is not to say EMI have been any more of less generous with OD2 than most of the other majors as all have been equally stingy. However, it does seem they saved the best for themselves – which is understandable enough but it does make you wonder how seriously they are taken the third party providers.

    To be fair to EMI, they have been among the most proactive and innovative players in the digital arena – due in no small part to their need to counter the advantage other labels gain from their parent companies. But EMI would be ill advised to go it alone online. Choosing a wide variety of distribution partners is an important move, but it should be accompanied with EMI making such depth of catalogue available to other aggregators.

    EMI are setting the standard for the amount of content which should be made available for digital distribution, but they and their fellow majors should be equally generous with third party aggregators if they are to have any hope of stimulating Europe’s fledgling online music market.

    Slashdot discussion: New Online Music Push by EMI

2003 April 23

(entry last updated: 2003-04-23 19:21:24)

  • The end of the day Technorati datapoint: www.nytimes.com; 7:20 PM; 219,819 weblogs watched; 10,477,345 links watched; 5942 inbound blogs; 15,762 inbound links

  • An oddly schizoid analysis [pdf] of Apple’s positions in re: buying a record company from BusinessWeek. On one hand, these companies are a mess; on the other hand, the prices will fall. And the implicit assumption that business-as-usual will prevail (c.f., the points on prima donnas and salaries) could make this article a roadmap for fixing what ails the industry.

  • News.com reports that Microsoft’s CD copy protection technology has been picked up by Macrovision.

    “We’re hopeful that the labels will do some test releases this summer and do some major releases this winter,” said Adam Sexton, vice president of marketing for Macrovision’s music technology division. “Copy protection is working in Europe, and airplanes are not falling out of the sky. The economy is still functioning, despite the doomsday predictions.” [Ed. note: Ah, glad to hear that the RIAA/IFPI declarations of sales declines are not as troubling as they have appeared.]

    … The Microsoft technology allows more flexibility, however. The pre-ripped, or “second session” Windows Media files added to music discs will allow record labels to specify exactly what can be done with the songs, such as burning a few extra CDs, making a few digital copies, or transferring them to an MP3 player.

    Macrovision’s license now allows the company to sell this full package of copy-protected and pre-ripped songs to record labels. SunnComm signed a similar license earlier this year.

    Despite the movement on the technology front, there remains no indication from the major music labels as to when they might start releasing protected titles in the United States.

    Given that it appears that Windows Media formats appear to be at the heart of this, can we expect that we’re going to see CD players sold with “Certified by Microsoft” stickers? What’s *that* going to cost?

  • David Weinberger has a useful corollary to Declan McCullagh’s argument that geeks should stay out of politics and just code: Role of technologists in Politics

    What should technologists be doing to keep the Net free and content open?

    Here’s my answer, as profound as it is detailed:

    First, technologists should make technology that supports openness.

    Second, technologists should explain that technology as clearly as they can.

    Here’s an example.

    Right now, we’re in a battle over how controlled content can and should be. Everyone (?) agrees that creators ought to be compensated for their efforts. The question is: Is it necessary, fair and good for creators to always be compensated, in a one-to-one way, for every encounter with their works? Should we shut down photocopiers because sometimes they are used to violate copyright? Should we shut down VCRs for the same reason? Should we prevent people from lending books to their friends? Should I have to pay the author again if I choose to reread her book? Nah. But somehow the entertainment industry has persuaded Congress that any uncompensated use constitutes piracy. Technologists ought to convince Congress that the attempt to lock down all usage is either impossible or carries with it such terrible side effects that it is undesirable.

    And then they ought to hack the control mechanisms.

  • Doc Searls points to a truly humorous article in The Onion: New Fox reality Show To Determine Ruler of Iraq

    A panel of celebrity judges will help eliminate two contestants each week, leaving one lucky winner the undisputed leader of Iraq at the end of the season. Viewers can participate by casting phone-in votes, although Darnell noted that voting is restricted to calls originating from within the continental U.S.

    U.S. General Jay Garner (Ret.) will host the show under the auspices of the Pentagon. The three celebrity judges, Darnell said, will be choreographer and former Chrysalis recording artist Toni Basil, internationally renowned hairstylist Vidal Sassoon, and television star Kevin Sorbo.

    …According to Berman, Fox received more than 3,000 applicants for the show during an open casting call. While most of the hopefuls were American or Iraqi, some 600 aspiring rulers from more than 100 nations auditioned for the coveted 20 finalist spots. Contestants included a San Diego interior decorator, a Philadelphia inner-city schoolteacher, and a peshmerga fighter from the Patriotic Union of Kurdistan.

    Contestant Kymbyrley Lake, a cashier from Garland, TX, said she has a “good feeling” about her chances.

    …At a Pentagon briefing Monday, Deputy Defense Secretary Paul Wolfowitz gave his blessing to Appointed By America.

    “It is great that Fox will play a vital role in post-war Iraq,” Wolfowitz said. “Heck, we didn’t really know what we were going to do.”

  • While I’ve been following the compulsory licensing discussion online (one set of links), I’m not ready to jump in, yet. But Derek points us to a couple of new chapters of Terry Fisher’s upcoming book to help.

  • The NYTimes has an article about artists “mis-using” computers to make art: Deliberately Distorting the Digital Mechanism [pdf]

    Since 1994 Ms. Heemskerk and Mr. Paesmans, collaborating under the name Jodi, have created a series of Internet-based artworks that deliberately cause computers to do the wrong thing. Viewers of these online works will find their screens filled with meaningless text and needlessly blinking graphics. Web-browser windows spawn smaller windows that race maddeningly around the screen. Links that appear to lead somewhere yield dead ends. Like a sci-fi thriller, this could be delightful, except that the underlying premise is of computers in complete control. A terrifying thought.

    … Like Cezanne’s late works in which the raw canvas is often part of the painting, Jodi’s sites force viewers to become conscious of the Web’s appealing surface and the digital mechanism that lurks below.

    Annette Schindler, the director of Plug.In and the co-curator of “install .exe,” said, “You think you know your computer, but really all you know is a surface on your screen.” This state of affairs is based on the foolish hope that our technology, like our cars, will always operate properly, so that we never have to look at the oily, gritty bits under the hood. But Jodi subverts this notion. Visitors to the duo’s Web sites, Ms. Schindler said, “immediately have the experience that Jodi wants to give them, which is, `What if everything goes wrong?’ ”

    A very worthwhile question in the face of changes being planned for the digital landscape.

  • Salon on The PATRIOT software bonanza:

    It’s hard to fault software companies for looking for new markets, but some observers still find the spectacle of firms rushing to deliver spy software distasteful.

    “Companies climbing all over each to be the first to sell the tools of surveillance to the government and to other companies is unseemly,” says Cindy Cohn, an attorney for the Electronic Frontier Foundation. While the software companies enjoy the new demand for their PATRIOT-inspired solutions, the EFF has another solution in mind for the act; it’s currently leading a letter-writing campaign in support of two members of the House who are calling for congressional hearings on the act.

  • This article from atnewyork.com (via internetnews.com) suggests that, while some colleges are cooperating with the RIAA, they are finding them to be poor bedfellows:

    While Penn State washed its hands of the legal mess, the Michigan Technological University (MTU) was not so lucky. One of MTU’s students, Joe Nievelt, was sued by the RIAA before the school could get a chance to act on a complaint from the music industry trade association.

    Clearly irked by the litigation move, MTU president Curtis Tompkins slammed the RIAA for turning a blind eye to the school’s efforts to curb illegal file-sharing within its network and hinted that the RIAA was more interested in lawsuits and publicity.

    “I believe that we would not be facing this situation with Joseph Nievelt today had we been able to gain your help in providing additional information to our student body. We have cooperated fully with the RIAA, but in recent months, have not seen the same from your organization,” Tompkins said in a letter to the association.

    “You have obviously known about this situation with Joe Nievelt for quite some time. Had you followed the previous methods established in notification of a violation, we would have shut off the student and not allowed the problem to grow to the size and scope that it is today,” he added.

    “I am very disappointed that the RIAA decided to take this action in this manner. As a fully cooperating site, we would have expected the courtesy of being notified early and allowing us to take action following established procedures, instead of allowing it to get to the point of lawsuits and publicity,” Tompkins added.

  • 321 Studios goes to court (CNet story) this week for a declaratory judgement about the legality of their software.

    The studios claim 321’s software violates a portion of the act that makes it illegal for anyone to sell software used to break or bypass digital encryption codes.

    But 321 argues that the DMCA allows software owners to get around encryption when copies are made for an owner’s sole use.

    “This is a very interesting, cutting-edge case,” said 321’s San Francisco-based attorney Daralyn Durie. “The first issue is what does the DMCA mean, and does it prohibit all circumvention of encryption, or does it only prohibit the circumvention when it’s being done to engage in copyright infringement.”

    Frankly, I’m a little confused, but I don’t have this software (or a DVD burner). My understanding was that copying, per se, is achievable without undoing CSS, so there’s got to be something more here. Moreover, given the relatively unhappy record of declaratory judgements in the copyright arena lately (Eldred, Edelman), there’s a question of strategy, too.

  • Wired covers the super-DMCAs – Baby DMCAs Punish Copy Crimes

  • This morning’s End of Free Redux data point: 9:44AM Technorati stats for www.nytimes.com: 238,937 weblogs watched, 10,367,284 links watched, 5942 inbound blogs, 15762 inbound links

  • From the Bruce Springsteen WWW site:

    The Dixie Chicks have taken a big hit lately for exercising their basic right to express themselves. To me, they’re terrific American artists expressing American values by using their American right to free speech. For them to be banished wholesale from radio stations, and even entire radio networks, for speaking out is un-American.

    The pressure coming from the government and big business to enforce conformity of thought concerning the war and politics goes against everything that this country is about – namely freedom. Right now, we are supposedly fighting to create freedom in Iraq, at the same time that some are trying to intimidate and punish people for using that same freedom here at home.

    I don’t know what happens next, but I do want to add my voice to those who think that the Dixie Chicks are getting a raw deal, and an un-American one to boot. I send them my support.

    Bruce Springsteen

  • If you can’t get a declaratory judgement, you have to try other means: Group questions state site-blocking law

  • The Register also cites the recent Microsoft announcement, under the antitrust settlement, to offer access to protocols. The Samba Team is cited as being unimpressed.

  • The Register also summarizes the Madonna/MP3 spoofing/site hacking situation. CNet also has some material

  • The Register picks up the suit of the Napster VCs (CNet’s article), but misses the key issue that came out of yesterday’s Slashdot discussion – the fact that a finding of ‘vicarious infringement’ under copyright law allows the piercing of the ‘corporate veil,’ meaning that liability is then no longer limited to the amount invested in the firm. This is why there’s such concern among the VC community. See yesterday’s Furdlog for pointers to some articles on the subject, and also see Fred von Lohmann’s analysis.

  • More on the RIAA file sharing lawsuits, as well as an overall look at the change in RIAA tactics with respect to students [pdf].

    College students are not the only ones copying music off the Internet. But students, who often justify their behavior by arguing that CD’s are too expensive and that artists do not get the money anyway, may be more hostile toward the music industry than most. Many say record labels should accept that the Internet has irrevocably changed their business and instead offer new services, like chat sessions with artists or early ticket sales for concerts, which they would be willing to pay for. Others say they buy as many or more CD’s as they ever did because they are able to sample music free and discover artists they like.

    … “It’s been very difficult because students have grown up viewing the Internet as a place where you go to get lots of free access to things,” said Graham Spanier, president of Pennsylvania State University. “As we have tried to educate our students, half of them understand it’s like going into a store and putting a CD in your pocket and the other half just can’t see it that way.”

    The threat of legal retribution may be improving their vision. Since the record industry filed its lawsuits, officials say they have seen over a dozen internal campus Web sites devoted to music-sharing go dark.

    … “If this becomes more about a challenge to the technology than about downloading music for recreational purposes, that is a serious concern for us,” said Peter McDonough, general counsel for Princeton. “Because we emphatically believe the technologies themselves are not illegal.”

    I would have expected a more sophisticated perception of the illegality than the one cited by the president of Penn State! At least the Princeton general counsel has a clearer perception of the issues.

2003 April 22

(entry last updated: 2003-04-22 22:18:46)

  • The End of Free Redux/Reloaded: It didn’t last! Try this NYTimes link from April 12!!! – they’ve re-erected their Abstract/Fee barrier – now I know what I should have been doing with my weekend :-(( As Dave Winer suggested, it’s time to use the BBC instead, and I’ll have to get started on PDF-ing anything that I feel I have to have from the Times – reread Doc Searl’s arguments about the value of authority before you compose your letters to the NYTimes management. Back to my Technorati links experiment – will the NYTimes tail off or not? Today’s stats (7:19 PM) for nytimes.com – 237,256 weblogs watched, 10,204,804 links tracked; 5872 inbound blogs, 15,286 inbound links.

    Update (from home): Their Links FAQ is unchanged at this point in time, even though the question that I referenced on April 7 is no longer correct – although maybe there’s some special language in the text that I need a lawyer to interpret:

    Q. How long will links to New York Times articles remain before breaking?

    A. Links to the homepage or section fronts may remain indefinitely. Links to articles, established within the first week from the publication date will also remain stable for an indefinite length of time, unless a redesign of our website occurs that causes the links to break.

  • Cory Doctorow‘s notes on Bunny Huang’s talk on hardware hacking at the O’Reilly Emerging Technology conference – freedom to tinker, anyone?

  • Denise Howell points to an LA Times article [pdf] on the street biz in mix "tapes" and how the record industry views it:

    The mix tapes are the creations of local DJs who take hits, rarities, the works of up-and-coming rappers or all of the above, and use them to turn a blank CD into a highly personal jukebox. There is intense competition among those DJs to get the freshest material, and because the formal music industry has long viewed the whole scene as a copyright nightmare, a spirit of pirate radio pervades.

    …Now, though, with the stars aligning just right, the mix tape has not only returned as potent tastemaker, it’s also enjoying such a flurry of interest and respect from the mainstream music industry that it feels like an overnight sensation. Conflicted labels regard the scene as both piracy menace and talent mother lode.

    …Music executives, always eager to follow a trend, are swooping in to sign the stars of the mix-tape scene, be they rappers, such as 50 Cent, or the DJs who assemble the tapes and imprint them with their personalities, either through their own rapping or musical trademarks.

    …”We’ve seen a real spike, and that’s directly due to the cost of CD burners and blank media ….Now that you can get those blank CD-Rs in bulk for under 5 cents a piece, the practice has become as attractive as narcotics. The profits are just as great.” He added that “thousands” of seizures and arrests are made each year.

    I’ll take "Perjorative Characterizations" for $100, Pat!

  • Ah, cripes: Record labels sue VC firm over Napster support; find more about this from Boing Boing, via Donna. Worse, the article discusses the chilling effect on innovation:

    The National Venture Capital Association, in a recent letter to Sen. John Kerry, D-Mass., wrote that the mere threat of such litigation against one limited partnership firm would shrink the flow of capital to the entire technology segment.

    “The uncertainty attendant to those pending lawsuits is deterrence aplenty to the flow of investment capital to new technology,” wrote association president Mark Heesen. “Even without the threat of direct suit, investors in innovative technologies face the very real risk of loss of their investment.”

    The Slashdot discussion: Record Labels Sue Napster’s VC includes comments from one Ryan Tate suggesting in two articles (Upside; Economist) the the doctrine of ‘vicarious infringement’ in copyright law may, in fact, allow prosecutors to ‘pierce the corporate veil’ and leave the VC exposed to liability in excess of their investment in the venture.

    But copyright law is broader and more flexible than corporate law. It allows for prosecution for vicarious copyright infringement, an idea developed by the courts in a string of decisions dating back as far as 1918.

    Vicarious infringement occurs when parties several layers removed from a case of copyright infringement may be held responsible for piracy. The vicarious infringers do not have to actually commit piracy, as in direct copyright infringement, or even assist in piracy, as in contributory infringement and the case against Napster Inc. Rather, they need only the ability to influence the infringing act and to derive a benefit from the act. The scope of influence and amount of benefit required for vicarious infringement has been under debate in the courts for some time.

  • More on the Penn State network crackdown at the bottom of this entry.

  • Heck, it’s the end of a long day – check out FotoLog, which got an interesting writeup at Salon today. Something that I wish I had the time for, but my gallery is more than enough work (still working on getting my Morocco pics finished). But, this is the kind of thing that Charlie Nesson is talking about (as are weblogs) – here’s my discussion from Charlie’s ILaw session last summer

  • A nice summary of the RIAA lawsuits against college students using SMB spiders to find files shared on their campus networks and assembling lists accessible by all. [via Current Copyright Readings]

  • The BBC has a concise summary of the Madonna MP3 spoof/publicity campaign for her new album. The new Tangled Web column for this week [pdf] explains the connection (note the spin on Madonna’s "interjections" in the MP3s):

    While it’s a given that any new Madonna album will debut at or near the top of The Billboard 200, this time the Internet will likely play a role in the immediate success of her latest Maverick/Warner Bros. effort, “American Life.” The album is due in stores today (April 22), but MTV.com has been streaming it for more than a week, and Launch.com, America Online (AOL), and MSN have each featured a different track over the same period. Madonna’s voice repeatedly cuts into each stream to introduce the album, with the hope that fans will buy the set to get uninterrupted versions of the tracks.

    The massive Web campaign was designed in part to keep the album from leaking to peer-to-peer sites, as was the case of the pop star’s 2000 album “Music.” But it also has meant huge exposure for the new songs. A spokesperson for MTV.com says “American Life” has been streamed more than 700,000 times in the past week, which is “definitely a record for MTV.” Jay-Z’s “The Blueprint 2: The Gift and the Curse” (Roc-A-Fella/Def Jam) is a distant second.

    Note that Madonna doesn’t appear on the Big Champagne charts at all for the week ending yesterday. I’m not sure whether that means Madonna’s buzz is outside the P2P nets, whether the spoofing kept down the traffic, or whether Big Champagne’s tools are flawed, but it’s worth noting. Note Mary Hodder posted a detailed summary a couple days ago.

  • RealNetworks buys Listen.com for $36 million. CNet’s report discusses the shifting alliances in the online music biz.

  • Declan McCullagh points out a Cisco technology for changing the architecture of the Internet: Inside Cisco’s eavesdropping apparatus – more from Slashdot: More on Cisco Building Surveillance into Routers; articles, RFCs, etc.

  • A little academic material from the American Enterprise Institute and Brookings: Questioning the Economic Justification for (and thus Constitutionality of) Copyright Law’s Prohibition Against Unauthorized Copying: Section 106 – an economic argument against copyright, leading to an argument that since copying prohibitions limit new creation, the First Amendment exception generally given to copyright protections under 17 USC 106 is unconstitutional. A more detailed reading is needed on my part, but…. [Thanks, Ozlem!]

  • The Toronto Star offers up some future scenarios/strategies [pdf] for the music industry. The denouement of plot 5:

    Talk to enough record people these days — you know, those former rebels who hung with Bowie — and you can hear a bit of hate in their voices. They hate that they can’t control these listeners. The industry looks and sounds more like a police force than a cultural force.

    Labels were once known for the company they kept — the audiences they developed along with the artists’ careers. The first rupture came with a blockbuster mentality about 20 years ago when entire audiences — jazz and classical listeners for starters — were deemed irrelevant or marginal.

    As it turns out, the classical and jazz crowds — older people somewhat, likely better educated — were the very ones likely to be loyal to the industry. They were the collectors. They identified certain acts with certain labels. They actually had a feel for what the industry was up to.

    By turfing them, the industry — and its artists — have been left with the great unknown mob of consumers whose patterns of listening are an utter mystery, whose loyalty is suspect and whose developing musical tastes are impossible to understand let alone shape for all of the earlier reasons.

    The industry needs to reconnect with its audience, young and old. Maybe if it knew who was out there, it would know how to sell it something.

    The Slashdot article includes a comment that picks at an earlier part of the article where P2P file sharing is compared to the Baghdad looters

    Well, if the Baghdad looters…[w]ere simply making copies of the original items and leaving them intact, I think I’d be fine with it.

  • Slashdot also discusses the Boston Globe Magazine excerpt on Napster. [pdf] Other excerpts are available at Menn’s WWW site. Salon has a review, A file-trading ship of fools, with a couple of great summary paragraphs, including this gem:

    The story of Napster has to be seen, in the end, as a tragedy of wasted potential. Here was a system that improved everything about the way we listened to music, but nobody it touched was better off for it. The recording industry suffered losses not only to piracy but also to its image; in order to defeat Napster and the dozens of clones it spawned, the industry had to make enemies of its customers. The industry certainly didn’t have to behave the way it chose to, but given its experience with Napster, one can’t blame them; in fact, one of the best things about Menn’s book is that, compared to the file-trading executives, it makes the music industry look reasonable. Music fans are not well-served by the current state of things, either. Had Napster come up with a compromise system in time, fans might today enjoy a host of subscription file-trading systems online; today, however, the industry, having seen its worst nightmare in Napster, gives us only the most bare-bones systems. And fans, after experiencing the thrill of Napster, now must use a host of ad-clogged second-rate systems, a scenario that leaves them personally liable for copyright claims.

  • Revolution is not an AOL keyword gets Slashdot ink

  • And the march of innovation continues: Synapse

    Synapse is not just an unbelievable media player, it is a way of life. It reflects certain differences from the way the music world ticks today. It represents a completely new way of thinking.

    …Synapse is a real pattern matching application. It does the intuitive — it watches you and it learns what you like. There is no wasted time looking at other people’s style and classification and making some huge database. We don’t care if other people like to mesh rap and rock; we care if you like to mesh rap and rock. Or maybe you are the one person in the world who likes to mix classical and country and brazilian pop all at the same time. The Brain will pick that up, but no other player would dare play those songs together.

    Slashdot discussion: Machine Learning and MP3s – includes links to related/competing applications

  • Apple works to build buzz around its pending music activity(ies?). ZDnet story; Wired News has the Reuter’s feed

  • The super-DMCA saga continues, with this Slashdot summary and discussion of recent developments in Tennessee, Arkansas and Massachusetts. Apparently, there’s a hearing in Tennessee today, and the Arkansas version is sitting on the governor’s desk awaiting his signature. Notwithstanding User Friendly’s take of last year, the reported Penn State actions suggest that civil disobedience is not going to get terribly far – at least, not until the rhetoric of theft is defused for these cases.

    A particularly good summary comment:

    The dangers of this are entirely in the disturbing broadness in the definitions, and the “everything not permitted is forbidden” catch. I much prefer the “everything not forbidden is permitted” way of things.

  • Surprise! The US Department of Justice has weighed in on the side of the RIAA in the case of the Verizon ISP records subpoena. Amy Harmon at the NYTimes has a somewhat less vitriolic take

  • According to the AP Wire (via the NYTimes), Penn State has cut off of Internet access to 220 students from their dormitory computers. The students retain network access, just not from their dorm machines. No indication of who filed the complaint that led to the sanctions has been given by the university.

    Penn State deprived 220 students of high-speed Internet connections in their dorms after it found they were sharing copyrighted material, the university said Monday.

    “Basically, we received a complaint,” said Penn State spokesman Tysen Kendig, who said he could not reveal who registered the complaint.

    “Upon investigation, we found that the students had publicly listed copyright-infringing materials on their systems to other members of this network,” he added.

    So far, there’s nothing in the Daily Collegian, but that may change over the course of the day.

    Update: OOPS! I missed the Monday links! University cracks down on file sharing. There’s additional information that suggests that this closely parallels the other RIAA student lawsuits:

    The students were using direct connect file sharing methods, which allowed them to create a network and download material without the downloads counting toward the students’ university bandwidth limits officials said.

    … He added direct connect is a way for people to find out what other files people have on their computers. Once students get the internet protocol (IP) address of someone with a file they want, they connect locally to that person and download the file. This method does not count against the university bandwidth limits of 1.5 gigabytes for uploading and 1.5 gigabytes for downloading each week, he said.

    Those caught had their dorm room Internet connections shut off immediately and received e-mail from the Security Operations and Services (SOS) office concerning what happened. It said their access was shut off for “processing and distributing copyrighted materials.”

    …Judicial Affairs is working with the Recording Industry Association of America and is following the Digital Millennium Copyright Act closely, Rodack said. Federal law mandates Internet service providers shut off the connection until the complaint is resolved.

2003 April 20

(entry last updated: 2003-04-20 17:43:10)

  • Today’s Boston Globe Magazine has an article on one of the sordid side stories of Napster: The Man Who Hijacked Napter [pdf] – an excerpt from a book that I have ordered from Amazon, but seems to have gone astray: All the Rave: The Rise and Fall of Shawn Fanning’s Napster

    The article is largely a slam on Shawn Fanning’s uncle John, the money man in the background. An important tale for anyone who thinks that venture money is easy – firm valuation is a terribly ugly negotiation when the money gets serious, and of course the ones with the cash are going to negotiate hard – irrespective of the family relationships – hire a real negotiator if you’re going to be in this sort of situation!

  • Donna posted some great stuff late Friday – check it out – Especially Pirates and Posses: The Battle over Digital Copyright. As a Heritage Foundation product, it should be clear where the lecture is going to come down, but it’s important to read this to see what the tenor of the discussion is becoming. Alec French is there with the next thrust on P2P.

2003 April 18

(entry last updated: 2003-04-18 14:35:45)

  • Offtopic: A little humor before I leave for the holiday weekend: What Economists Do With Their Time [Flash – don’t click on the leader of the free world link!] – Apologies to the Sloan School and Happy Patriot’s Day!

  • Offtopic: Jack Balkin’s April 17 posting is a great read. (I’ll get a permalink once his blog tool updates…)

  • This week’s Electronic Business discusses the coming battle between consumer electronics companies and the cable companies for control of the digital living room – and identifies a gap in the current cable compatibility specification. Given the cable industry’s behavior in the past, I know who I would like to have run things this time around – the question is how to get it to happen.

    The cable industry’s fear of losing its lock on STBs [ed: set top boxes] when PODs [ed: point of deployment boxes – the new format] are rolled out is leading to a new strategy: controlling the next-generation digital portal to your living room, the home media center. Charter Communications has an alliance with Digeo Inc., Kirkland, WA, a cable media center provider. (Investor Paul Allen controls both Charter and Digeo, at least at the time of this writing.) Comcast and Time Warner Cable, which collectively control the cable service to more than 40% of U.S. homes with cable television, also have teamed with residential gateway companies.

    …Chip suppliers such as Broadcom Corp., Irvine, CA; TeraLogic Inc. (now owned by Oak Technology Inc., Sunnyvale, CA); Cirrus Logic Inc., Austin, TX; and the chip division of Motorola clearly want a bigger stake in the emerging digital living room. But so far such companies have been keeping mum, because they don’t want to offend the powerful cable gatekeepers.

    These chip makers should stand squarely with their traditional TV set and computer allies when the POD deal heads toward the FCC for approval. This may be their last real chance to create a standardized platform and head off further cable industry control over access to the television-based portal into the home.

  • Donna’s put together some thoughts on Ed Felten’s Slashdot interview.

    A small story to relate to Donna’s suggestion that it’s time to talk about “real-world” effects. I spent last week in Augusta, Georgia visiting my mother and attending the Master’s golf tournament. The Thursday round was rained out and my Mom took a couple of my sister’s friends from the Atlanta appellate court to lunch. During lunch, we got into the standard discussions of who does what, and my MIT position led to a question about my opinion of the US’s competitive posture in re technological innovation.

    Well! With an opening like that, I raised the topic of the perverse effects of elements of the current IP legislative regime upon certain kinds of inquiry, as well as the effects of recent patent policy upon openess in the academic community (e.g., this controversy) – and they got very excited about the issues. Granted, these were lawyers, but I was surprised by how much of an effect this discussion had upon them.

  • Andrew Orlowski, who generally spews The Register’s weltanschauung with the best of them, has a thoughtful piece today, stemming from the Pew Internet report that’s been getting all the buzz lately. Well worth a read, especially leading into a long Easter/Patriot’s Day weekend.

    In case you missed the Pew Study, here’s the paragraph from the summary that has gotten a lot of ink:

    Pew Internet Project tracking data show a flattening of the overall growth of the Internet population since late 2001. Internet penetration rates have hovered between 57% and 61% since October 2001, rather than pursuing the steady climb that they had showed in prior years. One possible explanation for this leveling trend is that the number of people dropping offline roughly equals the number of newcomers who come online each month. The lack of growth might also be tied to a struggling economy that leaves some families worried about household finances. Or it may be that we have reached a point where the adoption curve has peaked and the market is no longer working to bring online new groups of Internet users. Whatever the reason, it merits continued surveillance.

  • Seems like it’s a law day all around. Over at ZDNet, we have Law and sausages, wherein we find:

    But instead of moves to limit this wave of control and criminalization, the industry seems keen to encourage it. You may remember Palladium, Microsoft’s fuzzily described initiative to lock up the PC architecture. You may remember the Trusted Computing Platform Alliance, TCPA, which was a 200-member group to create a somewhat more open approach to the same thing. Well, the TCPA board of directors (guess who) decided unilaterally to abandon that and set up the Trusted Computing Group, TCG. The old TCPA members weren’t consulted about this, but they’re welcome to join the new group–under the new group’s rules. Microsoft has said previously that Palladium would become the next version of the TCPA standards–looks like they found a way to do this without having to OK it with the members.

    Or with you. There is no independent consumer or academic input to the TCG. And while eminent cryptographers such as Whitfield Diffie have said that the Microsoft approach “lends itself to market domination, lock-out and not really owning your own computer,” and Ronald Rivest–founder of RSA Security–has called for full and open public debate, it’s hard to see how this can take place when cryptographic research is rapidly becoming criminal, and big companies like Microsoft, Intel, IBM, HP et al are free to impose security –which will be automatically backed up by laws such as the DCMA–at will.

    …While computer security remains in the hands of commercial interests intent on criminalizing and locking their customers into terrified, powerless compliance, the real risks are going unchecked and unnoticed.

  • eWeek has caught wind of the super-DMCA and has a couple of articles today:

    Note that Peter’s piece calls for more involvement by IT professionals.

    It seems to me, however, that engineers hear the word “law” and think “the way the world behaves.” Legislators hear the word “law” and think “how we’re going to make the voters and campaign contributors happy.” When legislators’ declared laws conflict with engineers’ discovered laws, one can’t expect the politicians to apologize and change. They’re more likely to compound their original errors.

    Enterprises already strive to guide the creation of laws that affect the taxes they’ll pay or the competition they’ll face. Enterprise professionals should likewise seek involvement in processes that redraw the IT playing field.

  • In case you missed this, here’s the Billboard rundown:

    Madonna Has Choice Words For Music Pirates:

    The Madonna camp is looking to clamp down on online peer-to-peer piracy of her new Maverick album, “American Life,” by flooding file-sharing networks with decoy files. Those who download tracks from such services as KaZaA are greeted by the voice of Madonna asking, “What the f*** do you think you’re doing?” The new album is due April 22; the title track is No. 37 this week on the Billboard Hot 100.

    And if you need more on Madonna, see this New York Times article: Madonna’s Real Art: Getting Attention

  • Provocative piece on privacy in the digital age: The paradox of privacy:

    “Dragging all human behavior into the public is literally totalitarian,” said Bob Blakely, chief security and privacy scientist for IBM’s Tivoli Systems. “If you erode privacy, you erode liberty, because people don’t tolerate things going on in front of them that they don’t approve of.”

    … Ultimately, though, business, government and individuals are going to have to agree to a compromise. Companies will likely have to take consumers’ objections more into consideration when it comes to collecting or selling personal data. The legal fees and fines that come with misusing data will also help whip businesses into line, said John Tomaszewski, chief privacy officer at CheckFree, which specializes in payment systems.

    Conversely, individuals will likely have to submit to the fact that data about them is floating about, other experts at both the Almaden and RSA conferences said. One person’s invasion is another’s convenience. The differences of opinion often boil down to indefinable, but significant, personal biases. The fact that security experts often disagree shows that there is a long way to go.

    “It is going to take some time to play out because we don’t fully understand the requirements,” said Robert Morris, director of IBM’s Almaden lab. “The scientists haven’t engaged enough the with the policy makers.”

2003 April 17

(entry last updated: 2003-04-17 13:31:14)

  • Ed Felton’s posted his thoughts on the Blackboard lawsuit to block a conference presentation last week.

  • And Ed’s Slashdot interview has been posted: Princeton CS Prof Edward W. Felten (Almost) Live

  • D&M Holdings (makers of Denon and Marantz hardware) get ReplayTV and Rio for $36.2 million. Now what? D&M’s press release says:

    D&M Holdings is purchasing inventory, receivables, intellectual property and capital equipment. The company will also take over selected contractual relationships and liabilities. D&M Holdings intends to keep all ReplayTV customers and will design, manufacture and distribute a line of ReplayTV and Rio products.

    …D&M Holdings also announced plans to establish a new digital development group under D&M Holdings U.S., Inc. The business assets purchased from SONICblue will be merged into this new digital development group. The new subsidiary, Digital Networks North America, Inc. (DNNA), will drive the strategy and develop the core technologies that will enable the brands within D&M Holdings to become the leaders in the emerging entertainment-based home networking market.

  • Donna’s moved to Diane Cabell’s copyfight.org (Dotster’s Whois Lookup)

  • Wired covers a complex issue for National Geographic: is a CDROM archive the same as a microfiche/microfilm archive? And, if not, how to compensate copyright holders? The fact that many news organs have specifically revised their freelance contracts to include digital rights ownership puts the Society in a difficult position.

  • LATimes, April 8: Disney Plans to Be on Digital Frontier

  • Mark Mulligan’s comments on the IFPI press release describing the decline in music sales is well-thought-out.

    So what does it all mean?

    Well, it really just tells us what we already know. The CD replacement has clearly come to an end and the music industry is entering a period of readjustment during which it is going to have find it’s true scale in the face of increasing competition for leisure expenditure from computer games and DVDs etc etc. Piracy has also played a significant role. It is no coincidence that Germany suffered such a steep decline and is also flooded with counterfeit CDs from the old Eastern bloc countries. Physical CD piracy is a truly global problem and will not be brought under control whilst there is such over capacity of CD production in so many countries.

    Online piracy also played a role, though a far lesser one: don’t forget only 37% of Europeans are Internet Users, of which just 18% use file sharing networks regularly. But, as I’ve said many times before, the real impact of file sharing is not yet being felt. It will only really hit when the young music fans who are file sharing now reach the age when they would be expect to be spending significant money on CDs. That is when the music industry may find that its core constituency has disappeared and when an 8% decline may sound like good news.

  • I think I missed this one: Free content: why not? – a provocative argument around distribution economics.

  • A followup to the Apple/Vivendi speculations: Will Apple’s Rip-Mix-Burn Tune Change?

  • Slashdot picks up this article from the Sydney Morning Herald about a DRM system from IPR Systems that has been adopted by some of the big 3G mobile phone producers.

  • The Register picks up a piece from the Baltimore Sun about the penalties levied against the Naval cadets whose computers were confiscated last year because of potential copyright infringement. The punishments were relatively mild, and certainly not consistent with the notions of "theft" that are frequently bandied about in such cases. However,

    In an effort to curb the midshipmen’s music consumption, the Naval Academy has decided to cut back on the dormitory bandwidth and install software to restrict file sharing.