2003 May 19

(entry last updated: 2003-05-19 17:05:01)

  • Doc Searls ties together the Google/blog story and the loss of perpetual access to online news articles in this discussion: Printwash and More on Printwash

    Blogs are one big fat op-ed section for the news organizations out there. Thanks to the ethics of linkage (crediting sources — a polite grace learned from orthodox journalism and years of compiling footnotes and bibliographies for term papers in high school and college) and of Google’s PageRank algorithms, the blogosphere is a vast watershed of credit-giving: an authority-granting system of a high order.

    It is vastly dumb, given this situation, for the newspapers to continue hiding their stories and archives from search engines. The cost in lost authority far outweighs the benefits in selling those archives for $2.95 (or whatever) per story.

    They almost get it, but not quite.

    Dave Winer points to a Guardian piece that continues the discussion: The blog clog myth

  • Ed Felton discusses Orin Kerr’s Cybercrime’s Scope: Interpreting ‘Access’ and ‘Authorization’ in Computer Misuse Statutes

  • This one’s going to be interesting, given that the airwaves are in the public domain. What sort of encryption will they use? Disney in Plan to Beam Films to TV Viewers [pdf]

  • A few more pieces from CNet on the 321 Studio case:

    • Judge mulls DVD-copying case

      The judge in a closely watched lawsuit challenging the legality of DVD-copying software said she was “substantially persuaded” by past court rulings that favored copyright holders, but closed a hearing Thursday without issuing a ruling in the case.

    • DVD-copying case heads to court

    • Napster killer takes on DVD copying – a story on Russ Frackman:

      …the same lawyer who has represented the recording industry against Napster and a host of other file-swapping services. Over the course of four years, he and his legal team have made a deep mark on Net culture and history, stopping in their tracks some of the all-time fastest-growing and most-popular online services.

  • Findlaw has a guest editorial today: Enforcing the Digital Millennium Copyright Act Internationally:

    Why Congress Shouldn’t Lock in the Current DMCA By Approving the Current Version of the U.S.-Singapore Free Trade Agreement

    The FTA’s language regarding copyright circumvention technology goes no further than the DMCA’s. However, its status as an international treaty adds a new facet to the debate, especially as the FTA does not contain any of the DMCA’s exceptions to the scope of digital protections for copyrighted works.

    Unfortunately, in Congress, at least, the debate on the FTA is likely to be limited. The FTA was negotiated by the President under the Trade Promotion Authority (TPA) – formerly called “Fast Track” authority – delegated to him by Congress. Accordingly, Congress may only consider the FTA as an entire package – voting up or down on it as is, rather than considering amendments.

    …Unless and until the FTA is enacted, courts will be able to narrow the DMCA’s scope to respect free speech and the public domain. After the FTA, however, that will be impossible: it is not the judiciary’s role to decide whether the United States should honor its treaties.

    I’m with Derek in that I think the author overstates the degree of judicial deference afforded treaties. In fact, the Constitution says:

    Art III; Sect. 2; Cl. 1

    The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;….

    See also Missouri v. Holland (1920) where we find this tidbit:

    It is said that a treaty cannot be valid if it infringes the Constitution, that there are limits, therefore, to the treaty-making power, and that one such limit is that what an act of Congress could not do unaided, in derogation of the powers reserved to the States, a treaty cannot do.

    Justice Holmes for the majority

    However, it is true that there has been a certain amount of end-running undertaken in the copyright area when it comes to duration – the arguments about reconciliation of WIPO and US copyright, for example.

  • Roxio, the owner of Napster, is getting ready to get into the business with the acquisition of Pressplay, according to CNet. Is it really the case that the problem with the record industry online sites is brand recognition? Or is Roxio going to change the pricing model?

    Update: Amy Harmon has a piece on the NYTimes – Deal May Raise Napster From Online Ashes [pdf]

    Update: The Register report: Napster reborn! Roxio buys PressPlay; and Slashdot: PressPlay + Roxio?

  • Even *I* got one of these this morning, so check it out: Why is support@microsoft sending me computer virii this morning?

2003 May 16

(entry last updated: 2003-05-16 18:40:53)

  • Cory Doctorow points to Aaron Swartz’s first hand report from the Copyright Office hearings on DMCA exemptions. This paragraph puts the Hilary Rosen comments from Business 2.0 into their correct perspective (IMHO):

    Responding to IP Justice’s comment that consumers should be able to play a CD in any device of their choosing by virtue of the fact that they own the CD, the RIAA argued that consumers do not have this right and that it is instead a luxury that consumers to date have incidentally enjoyed. Mark Belinsky then stated that as multiple formats of CD and DVD (blue laser, etc.) develop, the 5 1/2 inch disc will embody ubiquitous formats, and this will prevent playback of any given disc across various platforms even though each platform may read content from some form of 5 1/2″ media. Overall, Steven Marks did a bang up job for the RIAA, making well-crafted arguments and maintaining a steady, calm and collected tone despite a few heated questions from one Copyright Office attorney who almost seemed to have it out for the RIAA. Overall, the RIAA took the position that present and future technological devices are not intended to deny consumers of their expectations, and Mark Belinsky chimed in by saying that future CDs (to be released as soon as November I think he said) would contain “two sessions” of data — one for playback in traditional audio devices (stereos), and one for playback in computers running Windows XP, which should meet consumer’s expectations while addressing the RIAA’s concerns about piracy.

  • Matt mentioned this article from the Chronicla of Higher Education, but his URL is defective. Here’s one that works: A President Tries to Settle the Controversy Over File Sharing

    Right now Mr. Spanier is pursuing two very different tacks. One is a policy of tough enforcement: Penn State has already started monitoring its network for file-sharing activity and shuts down any it finds.

    The other tack — little more than a suggestion at this point — is more radical and may reshape the debate on file sharing. Why not pay a record-industry-approved music service a yearly, blanket fee, Mr. Spanier wonders, and let students download songs as they please? Record-industry officials are skeptical, but say the idea is worth talking about.

    The article goes on to discuss the differences in universities’ approaches to the problem, ranging from hands-off to something like Penn State’s monitoring of as much network traffic as they can manage.

    More distressingly, it also claims that the universities and the recording industry should be making common cause, since they both rely upon the value of their intellectual property to maintain their existence.

    This argument is troubling on two levels. First, the value of traditional academic creations stems from the fact that it is widely cited and copied, not in spite of that copying. This is a nasty little rhetorical trick that ought to be snipped easily.

    On the second level, however, we are confronted with the trend wherein universities are entering into lucrative shared research and intellectual property relationships with companies, with the drug companies being the most notable form (there’s also the Harvard/DuPont cancer mouse). These are situations where the boundary between academic and industrial research blur, with the associated confusion about the role of traditional academic openess.

    Although this has been largely restricted to the patent area, it is the case that such efforts also have meant delays in publication.

    Thus, the confusion that we see in the Chronicle article is a reflection of the fact that the academy is increasingly slipping into a proprietary mode of thinking about intellectual advancement. This is not a good trend, IMHO, but it’s definitely one that can be seen in every institution, and it may well be that this little contretemps with the music industry will force academia to decide what its role is supposed to be.

  • Derek and Matt are having an ongoing discussion about filesharing and copyright:

    1. Matt: Crisis!

    2. Matt: I have developed what I believe is a novel line of reasoning on copyright law and the Internet.

    3. Derek: Oh The Tangled Web We Weave

  • From CNet and Digital Media NewsWire: Studios broaden DVD-copying fight

    In the latest development, lawyers for Paramount Pictures and Twentieth Century Fox Film filed for an injunction in U.S. District Court in New York to bar five companies from selling DVD copying software.

    The suit names Internet Enterprises, RDestiny, HowtocopyDVDs.com, DVDBackupbuddy.com and DVDSqueeze.com as defendants. None could immediately be reached for comment.

  • Is this really possible: F.C.C. Studies Market Power of Radio Giant [pdf]

    The Federal Communications Commission is trying to devise rules aimed at breaking the hold Clear Channel Communications has on radio markets in some rural areas, a commissioner, Kathleen Abernathy, said today.

    The five commissioners, led by the chairman, Michael K. Powell, are trying to redefine radio markets as part of their June 2 vote on new media-ownership rules, Ms. Abernathy said at a news conference. Clear Channel, which is based in San Antonio, is the largest owner of radio stations in the nation. It is the focus of bipartisan concern on the commission, said Ms. Abernathy, a Republican.

    “Because of the way our markets are defined, in certain markets they’ve clearly acquired more power than we would have wanted,” she said. “Everyone agrees this is something we have to fix.”

  • Yesterday’s article [pdf] has a followup today: Microsoft Official Tells of Use of Special Fund [pdf]

  • Here’s something to think about from Business 2.0 by Hilary Rosen: Why the Recording Industry Loves Tech

    In fact, record companies and tech firms have long had a symbiotic relationship. Every new music format of the last half-century has come as the result of collaboration between our industries. And in January we announced a set of joint policy principles with two leading tech-industry groups, the Business Software Alliance and the Computer Systems Policy Project, which collectively represent virtually all the big players: Apple (AAPL), Cisco (CSCO), Dell (DELL), IBM (IBM), Intel (INTC), and Microsoft (MSFT).

    One of the key planks of these joint principles calls for “private and governmental enforcement against infringers.” This is critical to fostering innovation — after all, recording artists and software developers alike do what they do at least in part for financial gain. And it bears repeating that this is the view not just of the RIAA but of the technology companies as well. They support appropriate enforcement against copyright pirates every bit as much as we do.

    Here’s something else that may surprise you though: Another important plank in this agreement is a firm commitment to opposing government-imposed technological mandates. The RIAA believes in innovation. And we believe that consumers in the marketplace, not the government, should decide which technological innovations will thrive.

    Is she serious (and this represents a continuation of the split from the MPAA on copy controls), or is this a cynical ploy to keep the customer off balance while music moves to DVD and other protected formats?

    See Mary Hodder’s comments: Hilary Rosen Embraces Technology

  • Slashdot points out that NewsHour Online is sponsoring an online discussion of copyright in the digital age

  • Catching up on the 321 Studios lawsuit:

  • I’ve been staying on the outside of the media concentration discussion that been rising over at Larry Lessig’s and others, but there’s a nice summary of the discussion over at The Register that’s worth a read: Internet is dying – Prof. Lessig.

2003 May 15

(entry last updated: 2003-05-15 12:34:12)

Going to be a light day for me; I’m in Washington today for an NSF review panel. Maybe I’ll get some time later but, as this is my first time to do this, I think I’m going to be pretty busy today.

  • A chilling tale: How Microsoft Warded Off Rival – discounting to keep Linux out of government and companies, and the legal complexities in the EU.

    Last summer, Orlando Ayala, then in charge of worldwide sales at Microsoft, sent an e-mail message titled Microsoft Confidential to senior managers laying out a company strategy to dissuade governments across the globe from choosing cheaper alternatives to the ubiquitous Windows computer software systems.

    Mr. Ayala’s message told executives that if a deal involving governments or large institutions looked doomed, they were authorized to draw from a special fund to offer the software at a steep discount or even free if necessary. Steven A. Ballmer, Microsoft’s chief executive, was sent a copy of the e-mail message.

    The memo on protecting sales of Windows and other desktop software mentioned Linux, a still small but emerging software competitor that is not owned by any specific company. “Under NO circumstances lose against Linux,” Mr. Ayala wrote.

2003 May 14

(entry last updated: 2003-05-14 14:00:24)

  • Ed Felten points out that the Texas version of the super-DMCA has been voted favorably out of committee.

  • Another Australian article: First criminal charges of internet piracy [via Aimee Deep]

    Michael Speck, of the industry lobby group Music Industry Privacy Investigations, said the move to criminal action, rather than the civil action used in all previous international music piracy cases, was a reflection of a toughening in attitudes to internet-related offences.

    “Internet infringers have relied on the soft option of civil action being taken, but the tide has turned,” he said.

    And trying to find out more about this company led me to this March 25 discussion of legal hardball: Music industry fears Uni stalling will derail case

    The music industry has expressed concern that alleged “delaying tactics” by the University of Melbourne over access to information revealing possible copyright breaches may make Federal Court action over the issue immaterial.

    Despite agreeing last month to preserve copies of files on the university network which may contain evidence of breach of copyright, the University of Melbourne has failed to do so, according to Michael Speck, the managing director of Music Industry Piracy Investigations (MIPI), the company retained by the Australian music industry to conduct surveillance of possible illegal activity.

  • The Microsoft pro-NGSCB/Palladium spinmeisters are out: Is Palladium Getting a Bad Rap?

    Privacy advocates warn that NGSCB can, and probably will, be abused by content providers to enforce draconian copyright protections. But Microsoft representatives insist these worries are rooted in an incomplete and incorrect understanding of what NGSCB is and can do.

    “There’s this mythology surrounding NGSCB that Microsoft is in league with the media industry to override consumers’ rights,” said Mario Juarez, an NGSCB product manager. “That makes no sense. Who would buy a product that doesn’t allow them to do what they want to do? No one. So why would Microsoft choose to commit professional suicide in that fashion?”

    Ummm, how about because most users don’t/won’t use anything but the dominant monopoly operating system?

  • CNet has an opinion piece by a Stanford senior: The mood among campus file-swappers. Fuzzy around the edges, but one look at the current mood.

    Why is a compromise in everyone’s best interest? Take the case of Sony, which operates a strong electronics wing along with several music labels under its Sony Music brand. It is not uncommon to see students parading through campus with a Discman, playing the latest MP3s that they just downloaded. Sony’s overall strategy has been to accommodate new music technologies by generating new revenue streams and changing its business strategies.

    … But fighting a war against educational institutions and P2P companies is bound to be expensive. The opportunities lost in such a battle are also quite large, especially as Internet radio and streaming audio become increasingly popular. If the recording industry cannot create a compromise for its Internet strategy, the future is clear: P2P alternatives will continue to develop, and organizations like the RIAA will wind up in one court battle after another and end up with one heck of an image problem.

    If the music labels want to play a defining role in the future of new media, they’ll need to work with Silicon Valley to establish mutually beneficial terms. Otherwise, the occasional blasting of copyrighted music from the speakers of students in college dorms will be the least of the their worries.

  • Slashdot also has a story asserting that the Music Publishers’ Association is going after fan sites that publish song lyrics.

    Update: Although the Slashdot piece has no substantiation, there is this BBC piece: The joy of lyrics

    The bad news for anyone with a troublesome lyric on the brain is that most sites are illegal: Sarah Faulder, chief executive of the Music Publishers Association, says that unless the websites have the permission of the copyright owners to display the lyrics (which most do not), they are breaking the law.

    LyricFind’s Ballantyne says that getting permission is impractical as there is no central body to approach to license lyrics en masse, but Faulder says this is no excuse for breaching copyright.

    “Just because there is no central licensing body it doesn’t make it right to take lyrics and publish them without permission. It is as frowned upon as the downloading of music illegally, and when publishers know about these sites they follow them up”, she says.

  • The above piece on lyrics reminds me of something that is discussed in The Audible Past. While, on one hand, every generation insists that their sound reproduction technology offers “perfect fidelity,” it remains the case that much of our ability to interpret sound recordings depends upon our already knowing what to expect.

    The need for song lyrics is a great example of this need (and the examples given in the BBC article above are excellent – don’t miss the comments at the bottom of the article!) Isn’t it surprising that, once you know the lyrics, then you can hear the artist saying those words, when beforehand all you heard was gibberish? The classic is Jimi Hendix’s Purple Haze lyric “‘scuse me while I kiss the sky,” but my own personal lyric issue has been Nirvana’s “Smells Like Teen Spirit.” When that song came out, I asked all sorts of people what they thought the lyrics were, up to actually paying a kid in a pizza place in Detroit one night to go through the whole thing.

  • Pursuant to David Weinberger’s piece in Wired: When copy protection backfires (Slashdot discussion: When Copy Protection Fails)

    His response was to send an email dripping with sarcasm to EMI.

    “Just a courtesy email to inform you, that as a result of problems experienced playing the Norah Jones CD containing your Copy Control measures on Apple OS10.2 Titanium Laptop, Windows 2000 workstation and Windows XP workstation, I have now been forced to copy your CD just to listen to it,” he wrote.

    “In all circumstances the CD drives could not recognise, load or play the disc. Maybe you should consider displaying a warning on the covers of all of your CDs i.e. Warning: This CD may not work!”

    “Please congratulate the genius that concocted this anti-pirating strategy.”

    Doc Searls points to AKMA’s comments on DRM and re-purchasing music as media evolve.

2003 May 13

(entry last updated: 2003-05-13 19:51:57)

  • Matt Morse writes about rhetoric and the RIAA apologies in today’s weblog entry – reacting to some things listed below.

  • David Weinberger has a column in Wired this month: Copy Protection Is a Crime

    Yet we’re on the verge of instituting digital rights management. What do computers do best? Obey rules. What do they do worst? Allow latitude. Why? Because computers don’t know when to look the other way.

    We’re screwed. Not because we MP3 cowboys and cowgirls will not have to pay for content we’ve been “stealing.” No, we’re screwed because we’re undercutting the basis of our shared intellectual and creative lives. For us to talk, argue, try out ideas, tear down and build up thoughts, assimilate and appropriate concepts – heck, just to be together in public – we have to grant all sorts of leeway. That’s how ideas breed, how cultures get built. If any public space needs plenty of light, air, and room to play, it’s the marketplace of ideas.

    …But in the digital world – the global marketplace of ideas made real – we’re on the verge of handing amorphous, context-dependent decisions to hard-coded software incapable of applying the snicker test. This is a problem, and not one that more and better programming can fix. That would just add more rules. What we really need is to recognize that the world – online and off – is necessarily imperfect, and that it’s important it stay that way.

  • CNet has updated their RIAA apologizes article (see the end of this entry): RIAA apologizes for erroneous letters

    The fact that no one seems to be ready to make the RIAA suffer for these “errors” is worrisome – and worse, the ink they’re getting helps to establish the notion that apologies are all that’s necessary.

    Speakeasy, a national broadband provider, said on Tuesday that the RIAA had apologized for sending a cease-and-desist letter alleging illegal activity on an FTP site devoted to the Commodore Amiga computer. The RIAA’s form letter sent to Speakeasy last Thursday alleged the Amigascne.org site illegally “offers approximately 0 sound files for download. Many of these files contain recordings owned by our member companies, including songs by such artists as Creed.”

  • OK – Donna repeatedly urges us to consider the rhetoric of copyright when getting into discussions. In the interest of improving all our skills, I offer up this distressing screed [via Not-So-Private Ryan] from NRO Online written by someone from Smith College: James D. Miller‘s Digital Communism. If we can’t knock this one down, we don’t have a chance with a real argument. Here’s his opening paragraph:

    By legalizing Internet file-trading tools, a California court handed a major victory to communism. The Internet allows the well-wired to take copyrighted material freely. Left unchecked, rampant copyright theft may soon destroy the for-profit production of movies, music and books and may usher in an age of digital communism.

    We can start with the conflation of property rights and copyright (shocking for a Stanford Law Review grad), but I would argue that this attack gets its potency from its lowest-common-denominator framing of the problem – know-nothingism as a rhetorical basis. Granted, we all know what to expect from NRO, but this is a particularly shameless argument.

  • More dead horse-beating of a particularly dangerous sort, threatening to “pierce the corporate veil” via vicarious infringement: Universal Sues Bertelsmann Over Ties to Napster [pdf]

    Universal Music Group, part of Vivendi Universal, joined EMI this month to sue Hummer Winblad, the venture capital firm that was one of Napster’s chief backers. Music publishers are also suing Bertelsmann for prolonging the life of Napster.

    Universal’s lawsuit cites an internal Bertelsmann memo that became public during Napster’s bankruptcy proceedings as evidence that the company deliberately planned to keep Napster’s illegal service running to aid a legitimate music subscription service Bertelsmann planned to have take its place.

    … But some intellectual property lawyers said the lawsuit was advancing a theory that stretches the traditional bounds of the law and that could have a chilling effect on investment in new technology companies.

    “What does this mean for other people who loan money to companies?” said Mark F. Radcliffe, a partner at the Gray, Cary, Ware & Freidenrich law firm in Palo Alto, Calif. “If you’re a bank and loan money to somebody who pollutes, are you responsible for cleaning up the pollution?”

    …”By the time the Napster system was shut down, Bertelsmann had materially contributed to, aided and facilitated millions upon millions of separate acts of infringement by millions of Napster users,” the lawsuit says.

    Of course, Amy Harmon’s example of loaning to polluters is a red herring, unless pollution is protected under copyright law. See Fred’s article above, this article from Upside and this Furdlog entry for more details.

  • Speaking of Verizon, Derek points out that a stay has been granted. Can’t find the order online, though. The motion for the stay, yes. (wrong motion)

  • More on the streaming of iTunes content via Spymac: Hackers: iTunes can be shared over Net. Like I said a couple of days ago, this looks like a webcasting game and it’ll be interesting to see what the reponses will be, both technically by Apple and legally by the RIAA/ASCAP/BMI/SESAC and/or the Federal Government.

  • Ed Felten continues the discussion of Steve Lohr’s article [pdf] in the NYTimes Week In Review.

  • A very distressing story from CNet: RIAA apologizes for threatening letter

    The Recording Industry Association of America apologized Monday to Penn State University for sending an incorrect legal notice of alleged Internet copyright violations.

    The notice and subsequent apology appears to mark the first time that a faulty notification has been made public. The incident also shows just how easily automated programs that search for copyrighted material can be fooled, as well as how disruptive such notices can be on college campuses.

    …A representative of Penn State said Monday afternoon that the university accepts “that this was an honest mistake by the recording industry.” Spokesman Tysen Kendig said Penn State “remains committed to working closely with the RIAA and other law enforcement entities” to take actions against the trading of copyrighted material. Penn State President Graham Spanier, who testified before Congress in February about online piracy, is the co-chairman of a working group that includes the entertainment industry.

    …The RIAA’s notice went to the university’s central computing office, which told the department to delete the material or “we will need to disable access to the machine hosting the infringing song.” The central office then notified the department. Soccio said: “The swiftness of the activity the university wanted to take just around finals time scared the living daylights out of me. I’m just glad the university took my word for it that we weren’t violating copyright law.”

    Now, Soccio said, he’s writing a letter to his members of Congress opposing the DMCA and will post it in the department for signatures. “I’m loath to think that our educational resources and years of valuable resources can be jeopardized just because some kid in a dorm room is downloading copyrighted material,” he said. “That’s not a price that society should have to pay.”

    Hmmm – I thought that there were supposed to be real teeth in these laws when false allegations are made; wasn’t that the argument that the judge made in the Verizon lawsuit? Instead, we get a lot of stumbling all over each other to get along – an abdication of responsibility by the university?

    Update: Slashdot discussion: RIAA Apologizes for Incorrect Infringement Notice – two particularly relevant comments: (1) RIAA == Penn State Board Member and (2) Perjury?

2003 May 12

(entry last updated: 2003-05-12 18:04:59)

  • BusinessWeek Online has picked up the SecutiryFocus coverage of Bunny Huang’s Hacking the XBox sales: ‘Banned’ Xbox Hacking Book Selling Fast

  • Cory Doctorow points to Magnatunewhy from the founder, John Buckman

    We are an Internet record label which sells and licenses music by encouraging MP3 file trading and Internet Radio.

    When you find an artist you like, pay what you can afford to show your support, starting at $5 for an entire online album. Companies can sublicense our music for commercial use using our no haggling, easy online forms.

    All money from your purchases is split 50/50 with our artists.

    No major label connections.

    We are not evil.

  • Music biz news from Billboard:

    • Appeals Court Revives Parks/Outkast Suit

      A federal appeals court in Detroit today (May 12) revived a lawsuit by civil rights icon Rosa Parks against the rap group Outkast over a song that uses her name for its title. A federal judge in Detroit had dismissed Parks’ lawsuit in 1999 over the song “Rosa Parks,” saying Outkast’s use of her name was protected by free speech, and the group did not need to compensate her.

    • Jackson Sues Universal Over Motown Royalties

      The 10-count suit, filed Thursday in Los Angeles Superior Court, claims that under a 1980 agreement, Motown agreed to pay royalties to Jackson on the distribution of select pre-1976 material, including solo and Jackson 5 recordings, as well as any “best-ofs” or compilations of unreleased tracks.

      Jackson says UMG has since released such albums and licensed songs commercially without his consent. He claims the label failed to provide him “with a single accounting” and has not paid him “a single dollar in royalties.”

  • Mary Hodder’s surfaced from her end of term exertions to add commentary to Lohr’s ridiculous article in the NYTimes yesterday [pdf].

  • Larry Lessig’s editorial [pdf] in the FT gets Slashdot coverage: Lessig on Streamcast/Grokster Decision (Derek’s thoughts)

    No doubt, the court observed, these companies benefited from the sharing. And no doubt, it went on, peer-to-peer networks were designed in part to avoid the ability to block infringing sharing. But because the law requires that there be both a benefit from the infringement and an opportunity to do something to stop it, District Court Judge Stephen Wilson was not willing to find either company responsible.

    The reason the court hesitated is a good one. As the district court reminded us, the practice in copyright cases has not been for courts to expand liability in response to new technologies. It is instead that any such expansion be done by Congress. This principle was the basis upon which the Supreme Court decided that Sony was not responsible for the copyright infringement that the VCR enabled. As the Court reasoned, no doubt Sony could have designed the VCR to disable the ability of users to record shows from the air. But whether Sony should have been so required was a decision for Congress. The only question that a court should ask is whether the technology has the “potential for a substantial non-infringing use”. If it does, whether its use should on balance be considered infringing is a question for policymakers, not courts.

    …The wisdom of this rule is something innovators in Silicon Valley are increasingly coming to see. When courts intervene to maintain copyright’s balance, the inevitable consequence is that innovation is harmed. If every innovator with technologies affecting content must bear the burden of a lawsuit before his innovation can be allowed, there will be many fewer innovations in the distribution and creation of content. That in turn will harm artists and technologists alike. Better to let the innovation happen, and then consider whether the change caused by the innovation is so significant as to require new legislation by the legislature.

    Judge Wilson’s decision is the first sign of a thaw in the winter that has stopped the technology revolution cold. Everyone would benefit if the wisdom of this lower court could percolate up through the federal judiciary. Within the limits of the constitution, the balance that is copyright protection is not meet for judicial review. The costs of the inappropriate review that has defined the past half-decade should remind the courts of a lesson they should have learned long ago.

  • A KaZaA worm: Fizzer stealth worm spreads via KaZaA (CNet coverage)

    To spread via email, Fizzer scans the addresses in a victim’s Outlook and Windows address books or it randomly attacks email addresses in public email systems such as hotmail.com and yahoo.com. Next, the worm, in the name of the computer owner, clandestinely sends out infected messages using different subjects, message texts and file attachment names.

    To spread via KaZaA, Fizzer creates multiple copies of itself under random names, and places these files in the victim computer’s dedicated KaZaA file-sharing folder. By doing so, Fizzer becomes “available” to all other network participants.

    Fizzer carries a dangerous payload that can cause confidential data to be leaked from infected computers. The worm installs a keyboard-logging program that intercepts and records all keyboard strokes in a separate log file. To transmit this information, Fizzer loads a backdoor utility that allows crackers/VXers to control a computer via IRC channels.

  • Merger rumors betwen BMG and AOL-TimeWarner: Merger Talks Surface in Music Industry [NYTimes pdf]

  • David Coursey chimes in on the apparent differences between Microsoft’s and Apple’s policies when it comes to DRM: Digital rights: What MS could learn from Apple. The article is more about what’s not there on the Microsoft side, along with the typical pro-Microsoft spin that underlies most (but not all!) of Coursey’s pieces. For example:

    Beyond that concession, Microsoft has been silent on the issue of content rights for consumers. What they’re doing in the business arena (building rights management into the enterprise versions of Office 2003) makes a lot of sense. But those efforts just make the company’s silence on fair-use rights even more apparent.

    Looking at Media Player 9 and the Ballmer e-mail, I would claim that Microsoft has a quite strong position on DRM, they just aren’t brave enough to own up to it, hoping that we’ll all just stay ignorant until it’s too late to fight back. But, then again, I have my own spin, too.

  • Siva Viadhynathan gets into a justifiable snit over Bruce Lehman’s remarks published in Technology Review: Invention International [pdf] .

    Larry Lessig points out that, rather than adopting Lehman’s theory that copyright is everything, he’d "suggest a Creative Commons license, or at least some way to keep Mr. Lehman at home."

  • My French isn’t good enough to read the source material, but Advogato has an article on France’s pending implementation of the EU Copyright Directive, and the implications aren’t pretty.

  • Dave Winer points to a BBC article: File swappers fight back – more on firewall technology

  • Speaking of cool technology (not to mention preservation through digitization): The Evelyn Wood of Digitized Book Scanners [pdf], a story about the automated book scanners produced by 4DigitalBooks

    Mr. Keller admits that his dream to have the entire Stanford library in a digital database is unlikely in the foreseeable future because such an undertaking — involving eight million volumes — could cost upward of $250 million.

    In the meantime, the Stanford librarians have begun digitizing books and documents where there are no thorny copyright barriers and have important historical and political significance.

    … For Mr. Keller the most vexing challenges are neither labor costs nor technology. Librarians, he said, must find a way to address the copyright restrictions that appear to be tightening as a result of new federal laws like the Digital Millennium Copyright Act of 1998.

    Stanford is struggling to comply with copyright restrictions while making works that have recently lost their copyright protection available digitally. Mr. Keller said the library increased the circulation of its collection by 50 percent when it computerized its card catalog. Digitizing out-of-print books could likewise make them available to a much wider audience, he said. The payoff for building such a digital collection, he added, is vastly improved availability of a huge store of knowledge and information for teaching, learning and research.

  • This was covered in the Times a while ago, but the link is lost now since it predates my realization that the NYTimes was going to kill off access, so I’m going to repeat it here: To Err Is Creative in Net Art

    While other Web programmers seek to iron out the glitches in their code, Paesmans and Heemskerk intentionally replicate them. It’s how they make their art.

    With graphics.

  • Wired News reports that devices that are essentially TiVos for radio are coming; A TiVo Player for the Radio

    These digital radio recorders, which can be preset to record a program at a certain time, enable customers to record any radio program they want and have it converted into a digital format. They then can listen to the program or upload it onto a PC in a transferable file.

    Like TiVo, the audio recorders will let customers fast-forward over commercials — although this isn’t a feature the industry is actively promoting.

    …As companies prepare to release more of these digital radio recorders, the potential conflicts the devices raise over copyright issues remain unresolved. While it is legal to record material off the radio, swapping certain digital files as was the case with copyright music on Napster is not, said Fred von Lohmann, an attorney for the Electronic Frontier Foundation in San Francisco.

    …”We are not convinced these products will sell particularly well … until the signal coming in has to be digital,” said Rob Enderle, an analyst with Forrester Research.

  • Mark Mulligan of Jupiter Research suggests that KaZaA is seeing a falloff in advertising because of a fear of an upcoming effort to associate P2P with child pornography. I can’t find anything to support this, but it’s still early in the week.

    He closes his weblog entry with a stupid question, though:

    However, even if child pornography allegations do prove to be valid and action is taken, the question that remains is why on earth are big established brands advertising on illegal file sharing networks in the first place?

  • David Card of Jupiter Research comments on yesterday’s NYTimes article on new media [pdf]

  • Some cool technology described in this month’s First Monday: The Syracuse University Library Radius Project: Development of a non-destructive playback system for cylinder recordings

  • Declan McCullagh discusses one of the key ideas floating around in the background of the copyright debate: Hold technology creators liable?

    “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.” Wilson wrote. Even if the companies vanished overnight, the P2P networks would continue to operate, he noted.

    That’s exactly right, and it’s heartening to see that at least one federal judge is tech-savvy enough to get it. Wilson rejected the arguments from the RIAA and its Hollywood co-plaintiffs who wanted to establish the legal principle that creators of general-purpose technology can be sued if it can also be used for illicit purposes.

    … Pay attention to the endgame. In the 1994 U.S. v. LaMacchia prosecution, a judge dismissed charges against a 21-year-old MIT student who ran a pirate Internet site, saying that it was not a criminal offense to do so under current federal law. Criminal penalties “should probably attach to willful, multiple infringements of copyrighted software, even absent a commercial motive on the part of the infringer,” Judge Richard Stearns wrote. Stearns suggested that Congress step in.

    Congress obliged. Three years later, President Clinton signed into law the No Electronic Theft Act, which makes–as I’ve written about before–copyright infringement a federal crime even if not done for commercial purposes.

    Watch for the same thing to happen here. In a little-noticed part of his decision a few weeks ago, Judge Wilson said current copyright law does not prohibit the creation of P2P networks–and then suggested that Congress might want to rewrite it. “Additional legislative guidance may be well-counseled,” Wilson said.

2003 May 11

(entry last updated: 2003-05-11 13:09:02)

  • Noted elsewhere, this Slashdot article points out that an iTunes P2P-like network (SpyMactheir announcement) is up and running: Mac P2P Music Sharing with iTunes is Online. Strictly speaking, this seems to be about streaming your iTunes, so this may become a Webcasting royalties issue, rather than a copyright infringement thing. Either way, as the article says, how long will this last before Apple mucks with their closed protocol?

  • Slashdot points to the SecurityFocus article that suggests that posting spoof files to the P2P networks is actionable under the recent VA anti-spam law. The Slashdot discussion: The War Between p2p and Record Companies Heating Up? is notable for pointing to the current IEEE Spectrum Online, which includes this piece introducing the May issue (with several articles accessible): The Copyright Wars:

    A new world of digital entertainment beckons, but industry clashes impede progress

    From Hollywood’s point of view, the best way to prevent copying from getting out of control is to prevent copying at all. “What we really want to do is not to stop copying, simply to stop redistributing. But the technology available doesn’t distinguish between the two,” said Larry Kenswil, president of the eLabs division of Universal Music Group (Universal City, Calif.), speaking at the January Consumer Electronics Show (Las Vegas, Nev.).

    Meanwhile, the consumer electronics industry, while working with the entertainment industry on copy protection technologies, is not willing to make copying outright impossible. Without the freedom to copy music from CDs to digital jukeboxes and portable players, for instance, entire categories of products, like MP3 players and hard-disk recorders, would disappear. People just aren’t going to pay for the same album three or more times—once to use in their car CD player, again to use in their home audio jukebox, and once again to listen to while jogging.

    At the same time, the electronics industry is not going to put out technology for totally unrestrained digital copying, in case the content owners retaliate. So the introduction of new products, such as portable TV players that download content from home video recorders into pocket-sized devices, is reportedly being delayed. The fear is that systems will never even be imagined because of the copy control constraint. Consider the broadcast flag, a technology intended to prevent unauthorized retransmission of digital TV broadcasts by inserting a coded signal into programs (though the signal may also end up preventing copying). Had some form of it existed 30 years ago for analog products, the consumer VCR, sales of which were worth over US $2 billion annually in the late 1990s, might never have reached the market, says Joe Kraus, cofounder of DigitalConsumer.org (Palo Alto, Calif.).

    …So wave your broadcast flag, load your DVD burner, or pack up the CDs you filled with MP3 tracks and send them with a letter of apology to the MPAA or the Recording Industry Association of America. It is time to pick a side; the fight for the future is now.

  • !Shock! I had to go to Technorati to find that one of my nephews has a weblog – and then only found it because he found me first!

  • Howard Berman defends the P2P Privacy Prevention Act over at Findlaw’s Modern Practice [via Doc]

  • Denise Howell has an update on the Pooh/Milne/Disney copyright suit [Fortune summary].

  • Wired News has an interview with one of the students who recently got a settlement with the RIAA, Joseph Nievelt: P2P Whipping Boy: Know the Risks

    “It seems the RIAA thinks that shutting down the index would prevent any file trading from going on, but that is not the case,” said Nievelt, who compared his former site, Flatlan, to Google rather than Napster. “The functionality is built into Windows. All you do is go to a folder, set the folder to share and then people have no problem accessing it or anything inside of it. Anyone who lives in the dorm can access the files in the folder that is being shared.”

    …But an RIAA spokesman disagreed: “When you search on Google, you get links to Web pages. These mini-Napster networks do not create indexes of links to websites; what they create are indexes of media files. Then with a single click of your mouse, the file is immediately downloaded to your hard drive. This is just like Napster,” he said.

  • New “Get Your War On” – in case you miss the underlying joke, The Book of Virtues is a book by that gambling specialist (joke site!), William Bennett, protector of our nation’s moral fiber.

  • While we’ve been hearing about how pop music is being homogenized by media consilidation, the effect on country music has been less discussed. This article from today’s NYTimes Magazine section adds quite a bit to the discussion: The Country of Country [pdf].

    There was a time when the fire that country music lighted beneath its listeners was to get down to the bar, get drunk and see if you couldn’t find somebody to go home with. But the only rabble being roused these days is the call to arms. Country music has become so squeaky-clean that a recent song in which Tracy Lawrence claimed that his grandfather taught him ”how to cuss and how to pray” was banned from several radio stations, cussing being too strong a concept for airplay. Long gone are the days when Merle Haggard took care of his searing morning hangover with an ”afternooner” and sang about it. This is thanks in large part to the vice grip of Clear Channel Radio, which buys up radio stations and makes carefully researched decisions about what Americans are free to listen to. Clear Channel has decided that patriotism sells, and that cussing and afternooners are definitely out. As a result, the music industry is frantically trying to find people who look and sing like whoever was on the top of last week’s chart.

    Until the invasion of Iraq, the band that everybody in Nashville most wanted to copy was the Dixie Chicks, whose most recent album, ”Home,” had the best of the war singles, a Vietnam ballad called ”Travelin’ Soldier.” Then, in a concert in London, the group’s lead singer, Natalie Maines, told a cheering audience that ”we’re ashamed the president of the United States is from Texas.” And that was it for the Dixie Chicks. Suddenly they were standing on the other side of the Merle Haggard line in the sand. They had become those hippie-liberal protesters they should have been singing against.

  • Another music business piece in today’s NYTimes – a look at a BeeGee’s finances: Harmony on the Stage, Solo at the Bank [pdf]

  • A little more on the music biz: No. 1 With a Bullet: Madonna Opens Big, and She’d Better [pdf]

    To create big first weeks, labels use “smoke and mirrors,” says a manager who spoke on condition of anonymity.

    “It’s a well-known dirty secret,” he said. “Some labels buy their own records. It’s part of the marketing plan, to buy CD’s wholesale at $6 a pop, and Sound-Scan them.”

    Two years ago, a Los Angeles Times article reported that record companies hired “independent consultants” to generate falsely high sales, and although all five record groups denied engaging in such duplicitous behavior, SoundScan eliminated some stores from its tallies because of what it called anomalies in the reporting system.

    Because a strong first week creates self-fulfilling momentum, leading to more airplay, press and touring opportunities, most blockbuster records have big debuts. Of the top 10 albums of 2002, eight had first-week sales of 220,000 or higher. One exception was the “O Brother, Where Art Thou?” soundtrack, a sleeper analogous to the surprise hit film “My Big Fat Greek Wedding.”

  • Say what you will about mash-ups, once they start getting reviewed in the NYTimes, you have to ask how long it will take to get these legal issues on the table: Um, Beyonce, Meeting Jimi Isn’t Such a Good Idea

    BEYONCE VS. JIMI HENDRIX “Work It Out With a Foxy Lady,” the mash-up track created by merging Beyonce’s “Work It Out” and Jimi Hendrix’s “Foxy Lady.” (It is hearable online at www.gohomeproductions.co.uk.) Odi et amo. Whoever’s behind Go Home Productions (we don’t know the names, for obvious legal reasons) created stop-time sections in the Hendrix to drop in Beyonce’s melismatic vocal track; her phrasing fits as an effective counter-rhythm against the music of the Hendrix Trio. It’s like a superhero, this compound: a mixture of rock’s groove and pop’s gleam. (Beyonce’s song even uses the word “foxy.”) But the seduction lasts for a verse and a chorus. Then its machine-soul becomes suddenly, repulsively manifest. Call it a cheap holograph. It drives me back to the real thing, people making music together in the same room.

  • For a look at conventional wisdom throwing up its hands when confronted with the promise and perils of the internet, read this little piece from the NYTimes: ‘New Media’: Ready for the Dustbin of History? [pdf]

  • From today’s Boston Globe Magazine, a look at the modern pop music business: Idol Worship: The Making (and Unmaking) of a Teen Idol [pdf]. Not a great piece from the viewpoint of improving one’s understanding of the business, but a little insight into pop stardom then and now.

2003 May 09

(entry last updated: 2003-05-09 23:39:26)

  • Another Mike Langberg piece from the San Jose Mercury News: CD, DVD duplicators easy to use but won’t let you burn Hollywood – reporting on the power of the CD/DVD duplicator and its rejection of movie DVDs – would DeCSS make a difference?

  • Here’s a lovely story: Record Executive Expected to Thrive Despite Setback [pdf]

  • Off-topic chuckle of the day, courtesy of the New York Post: 9/11 PLOT HIDDEN IN E-PORN (oops! it appears that the error has been corrected <G> – update: Nope! it’s still there!)

    Investigators believe cell members were using a process called stenography, in which special software allows a text message to be hidden inside a small part of a computer photograph.

    Better send this reporter off to check out the membership of the National Court Reporters Association. Or maybe just send him a dictionary: stenographysteganography

  • Derek and Slashdot both point to an Orrin Kerr article: Cybercrime’s Scope: Interpreting “Access” and “Authorization” in Computer Misuse Statutes. Like Derek, I haven’t read it yet, but it looks like I need to:

    Abstract:

    In the last twenty-five years, the federal government and all fifty states have enacted new criminal laws that prohibit unauthorized access to computers. These new laws attempt to draw a line between criminality and free conduct in cyberspace. No one knows what it means to “access” a computer, however, nor when access becomes “unauthorized.” The few courts that have construed these terms have offered divergent interpretations, and no scholars have yet addressed the problem. Recent decisions interpreting the federal statute in civil cases suggest that any breach of contract with a computer owner renders use of that computer an unauthorized access. If applied to criminal cases, this approach would broadly criminalize contract law on the Internet, potentially making millions of Americans criminals for the way they write e-mail and surf the Web.

    This Article presents a comprehensive inquiry into the meaning of unauthorized access statutes. It begins by explaining why legislatures enacted unauthorized access statutes, and why early beliefs that such statutes solved the problem of computer misuse have proved remarkably naïve. Next, the Article explains how the courts have construed these statutes in an overly broad way that threatens to criminalize a surprising range of innocuous conduct involving computers. In the final section, the Article offers a normative proposal for interpreting “access” and “authorization.” This section argues that courts should reject a contract theory of authorization, and should narrow the scope of unauthorized access statutes to circumvention of code-based restrictions on computer privileges. The section justifies this proposal on several grounds. First, the proposal will best mediate the line between securing privacy and protecting the liberty of Internet users. Second, the proposal mirrors criminal law’s traditional treatment of crimes that contain a consent element. Third, the proposed approach is consistent with the basic theories of punishment. Fourth, the proposed interpretation avoids possible constitutional difficulties that may arise under the broader constructions that courts recently have favored.

  • Here’s the text of the widely-discussed Steve Ballmer e-mail on Microsoft and DRM. An excerpt that I’ve missed up to this point raises a very interesting question – is Microsoft creating a walled village on the Internet and, if so, which side of the wall do you want to be on?:

    Anyone who uses a personal computer for word processing, email, data analysis or other common purposes is creating digital content – content that if unprotected might be misused by others. One of the touchstones of our Trustworthy Computing initiative is responding to customers’ demands for technology that protects the confidentiality and privacy of their information.

    This year we will release Microsoft Windows Rights Management Services, a security service for Windows Server 2003 that works with applications to help customers protect sensitive Web content, documents and email. The rights protection persists in the data regardless of where the information goes, whether online or offline.

    Building on this technology, our forthcoming Office 2003 productivity software suite will enable users to designate who can open a document or email message, and specify the terms of use – for example, whether they can print, copy or forward the data. A rights management add-on for Internet Explorer will extend these protections to Web content. Independent software vendors and application developers also will be able to build on Windows Rights Management, using software development kits that we will make available.

  • Donna’s entry today gives links to the ongoing Library of Congress hearings on the DMCA anti-circumvention provisions as well as other DMCA concerns being raised on the international education front.

  • Thought piece from last Sunday’s San Francisco Chronicle – a little network economics, a little copyright diatribe, a little discussion of art and culture – well worth devoting a little time to: Destroy the media [pdf]

    These are fearful times for the megalithic media corporations who produce and sell movies, music, television shows, books and magazines. With each passing moment — each advance in chip and network technologies, each increase in connection speed, each additional user signed on to the Internet — computer networks are more capable of absorbing and distributing copyrighted materials for free. And so with each passing moment, folks are becoming a little less enthusiastic about paying.

    …Destroying that [recording] industry is a very, very good idea. And roughly the same might be said of the slavishly starstruck movie world with its bloated blockbusters, or of book publishing with its twin obsessions on authorial prestige and print run. All these industries operate by trying to enforce on us a hierarchy of artists and ideas of their own devising for their own benefit. But it is already easily possible to publish your book yourself and distribute it free to anyone who wants to read it without using paper at all or make your own music and send it out over the telephone wires. Surely that can’t be something bad.

    The only reasonable concern here is that it is going to become harder for people who want to work in the arts to make a living. It is of course worth keeping in mind that most such people are already excluded from making a living by the industry itself. But it is true that in a universe of free information, no one is going to be able to get rich making records, though certainly people will still pay to see live performances.

    …Indeed, if you take some of the money out of this thing, you’ll get in compensation an increase of diversity, creativity, courage and intelligence. The audience disintegrates from a mass united by advertising campaigns into communities of sound that coalesce around expressions they find meaningful. Smaller and more various audiences entail more various and authentic art.

    In short, don’t assume that it is self-evident that people can own all the reproductions of the material they generate. It isn’t self-evident at all. And don’t assume, as the entertainment industry contemplates with horror its own destruction, that it’s not going to be a pleasure for everyone else.

  • Looks like the Big Champagne business plan is on track: Uncorking What’s Top in Pop:

    Company Tracks Online Song Swaps for Radio Play [pdf] [via BoingBoing]

    “When you really boil it down to what’s hot on the downloads,” Demery said, “it’s the same stuff people are buying, the same stuff people are requesting, the same stuff the radio stations are playing.”

  • The Register picks up on the message in Ballmer’s latest DRM pitch: DRM is your fluffy friend – Ballmer stakes out MS’ turf – see other discussion in yesterday’s Furdlog

  • Derek’s Perhaps I Spoke Too Soon makes an excellent point about these university file sharing crackdowns: you really can’t have it both ways. If a university sees internet access as a key instrument of education (and more & more see it that way), then it seems that using the throttling of that access as a mechanism of control is a contradiction of their stated educational mission.

    It’s an open secret that the university has traditionally acted as an intermediary between law enforcement and undergraduates, giving students a semi-protected space within which they get to work through a host of issues that many only confront once they leave home. Not to say that universities condone this behavior – but there are a host of instutions created within the university to manage things that are formally illegal (e.g., recreational drugs, sexual experimentation) in ways that limit the difficulties all around.

    Before I get categorized as simply a denizen of the Peoples’ Republic of Cambridge, note that, for example, running a crank lab in your dorm room would NOT qualify as "experimentation with recreational drugs." But it’s not hard to construct scenarios where simple recourse to law enforcement is not in anyone’s interest.

    For example, suppose a freshman’s high school girlfriend decides to run away from home, cross state lines (using cash sent to her by her sympathetic boyfriend) and take up residence in her boyfriend’s dorm. That’s a Mann Act violation – a Federal felony! Does the university call up the FBI and ask for a raid? Certainly not! Rather, dormitory staff work through the student affairs deans and others to try to resolve the problem, with a recourse to law enforcement as a last resort. (a little more on the Mann Act)

    Somehow file sharing is being distinguished from the university’s standard approaches to coping with potentially (and actually) illegal student behavior where the harm is far more difficult to characterize than the illegality. It would be interesting to speculate upon the whys of this. Is it possible that universities are resorting to this mechanistic perception for file sharing because it’s easier than confronting the real complexities of the issue at dispute? If so, that’s a tragic shame and a real abdication of the university’s role.

    Derek is absolutely right that universities should be doing better – it’s their job!

    Update: Here’s The Register story: Cops seize dorm PCs in college raid

  • “Bunny” Huang’s Hacking the XBox is being sold online after the publisher backed out for fear of DMCA lawsuits [via BoingBoing]

    Update: Slashdot coverage: Xbox Hacking Book Prepares to Fly Off Shelves; The Register: ‘Banned’ Xbox hacking book selling fast – in fact, the first printing seems to be sold out, with 52 preorders for the second printing already in place…..

  • A little progress on the recording artist’s side of the contract: California Panel OKs Artist Contract Reform:

    A bill designed to provide California recording artists with more leverage in forging contracts is headed to the state Senate floor after winning approval from the Senate Judiciary Committee, Billboard Bulletin reports. The bill, introduced by Sen. Kevin Murray (D-Culver City), would make it a “fiduciary duty” for labels to accurately calculate royalty earnings owed to artists.

    …Music industry officials oppose the bill, saying it would impede labels from developing new business models in the face of surging piracy. Recording Industry Association of America (RIAA) president Cary Sherman testified Tuesday that the bill “would distort the intensely negotiated, arms-length contractual relationship between an artist and recording label by imposing a fiduciary duty only on one party.”

    According to observers at the hearing, several committee members countered that only one party, the record company, holds the financial information to calculate royalties.

    But will it eliminate abuse like this cited by Derek: Major Labels Caught Stealing $100m a Year:

    Record Clubs Get a Smack Upside the Head by Federal Judge

  • I’m not sure what the title means (probably just a way to get the TCS crowd in an uproar), but Arnold Kling’s article Marx’s Nightmare is a nice roundup of copyright/file sharing thinking. Given Matt’s recent efforts to discriminate between theft and copyright infringement, it’s a helpful basis for thinking about elements of the issue.

  • I’m with those who assert that this is a demonstration of the desperation of the record industry, even though it’s also probably true that there may be some benefit to using the technology: Hit-song predictions get a scientific spin [pdf, graphic]. A discussion of Hit Song Science. Note that this is not particularly new news, as it was discussed on Slashdot this past February: New Computer Program Determines “Hitability”

2003 May 08

(entry last updated: 2003-05-08 16:23:40)

  • Donna’s got two provocative entries today: MPAA Who? Part II and Public Domain Papers–Published

    She also points to a blogger named Bill Hobbes whose entry Digital Freedom UPDATE points to yet another site with notable materials: The Digital Speech Project.

  • Bill Hobbes points to a NYTimes article [pdf] that I didn’t get to yet on the economics of Wi-Fi. Hobbes’s associated weblog entry agrues that the super-DMCAs are, in part, a mechanism to kill off this kind of cheap internet access.

  • The Future of Music Coalition is sponsoring a letter to the FCC complaining about media consolidation [via BoingBoing]

    We are writing to insist that Congress and the public have a full opportunity to review and comment on any specific changes that the Commission intends to make in the biennial review of media ownership rules before such rules are issued in final form.

    As musicians, recording artists, citizens and small business owners we are uniquely qualified to comment on the increased consolidation of the radio dial since the passage of the 1996 Telecommunications Act. We write to you today to emphasize that this period of consolidation has had far-reaching negative repercussions on our ability to gain access to the public airwaves and to make a living.

    We are therefore rightfully cautious and extremely concerned as American citizens that increased concentration of media ownership will have a negative impact on access to diverse viewpoints and will impede the functioning of our democracy.

  • Someone has noted the preponderance of Microsoft news today and has posted a provocative question over at Slashdot: What’s Microsoft Up To? This should be fun to follow.

  • From Denise Howell: Copyright Myths Debunked – informative and entertaining – what more could you ask for?!

  • A look at Net radio from Mike Langberg at SiliconValley.com: Net radio poses threat to local broadcasters

    If I’m any example of where the world is headed, local radio broadcasters are in big trouble and are blind to what’s ahead.

    I got disgusted with most broadcast radio long ago, thanks to huge doses — up to 20 minutes an hour — of loud commercials and ever-diminishing creativity in programming.

    But there was no reasonable alternative for news and entertainment during much of the day — while shaving, or commuting or washing the dishes — until I got high-speed Internet access four years ago. Through my cable modem and a wireless home network, I now listen to commercial-free Internet radio anywhere in my home office and in the kitchen. I also quickly download digital audiobooks from Audible (www.audible.com) which I transfer into an MP3 player that hooks to my car’s radio speakers.

    As a result, I haven’t listened to music on local broadcast radio since before the dawn of the 21st century. I once frequently turned on the radio at the top of the hour for news, but I now visit news sites on the Web whenever I feel the need for a headline fix.

    …Even as Arbitron sends out ratings diaries that foolishly neglect to ask about Internet or satellite radio, the company commissions research reports that clearly show the start of significant change.

    “An estimated 103 million Americans, 44 percent (of the total population over age 12) indicate they have used Internet audio or video,” says an Arbitron report called “The Emerging Digital Consumer,” released in February. “Many of those who have tried Internet broadcasting now consume streaming media on a regular basis, with 47 million Americans — one out of five — indicating they have listened to or watched Internet broadcasting in the past month.”

    In the same report, Arbitron cites surveys showing a high level of satisfaction with broadcast radio — “contrary to media pundits . . . (who) complain about radio’s lack of variety.”

    Find the report heresummary report pdf

  • A look at the pop life: Given Up, a Dream Returns to Life [pdf]: the rise, fall and rise of The Matrix

  • Wired News reports that the students who settled with the RIAA are getting offers of money from online sympathizers: Support for Fingered File Traders

  • Wired News’ coverage of the Bill Gates’ WinHEC talk is far less laudatory of the NGSCB technology, contradicting some of yesterday’s reports:

    “This is scary stuff,” said a developer who asked that his name be withheld. “I could see a lot of people sticking with their old computers, operating systems and media players to avoid all this permission crap. Any geek who does use Windows is going to stick with Windows 2000; most of them are already not thrilled with XP anyway.”

    Gates became noticeably touchy when quizzed by reporters on NGSCB’s potential to be used as a personal copyright cop.

    “We’re building a security system that people can use or not use as they please,” he said. “We are not telling anyone what they have to do or not do with their computers or with their content.”

    Some developers assumed, from Gates’ comments, that NGSCB would be a user-enabled option. But currently there doesn’t appear to be any way to disable NGSCB, as it will be built into both a computer’s hardware and its operating system. It’s also possible that its protections would not work correctly or would prevent content from being viewed on non-NGSCB systems.

    Plus, Michelle Delio got the doublethink (see below):

    Given NGSCB’s potential to be a very personal Big Brother, it’s interesting that Microsoft’s other main focus at WinHec this year is encouraging hardware developers to build devices that, according to Gates, “provide consumers with more options to enjoy digital entertainment on a PC, television or portable media player and easily distribute digital media experiences throughout their homes.”

  • On a related note, the NYTimes reports on the release of Terminator 2 DVD [pdf] using Microsoft’s media technologies:

    The two-disc set, to be released in June by Artisan Home Entertainment as “T2: Extreme DVD,” will have a list price of $29.98. One disc will include a digitally remastered high-definition version of the film, with enhanced 5.1-channel surround sound, using a new Microsoft format called Windows Media 9. It promises almost three and a half times the resolution of a traditional DVD.

    But there is a catch: it will play only on a computer using Microsoft’s Windows XP operating system. And to appreciate the effects, users will have to download the free Windows Media 9 player software.

  • Findlaw’s Writ: Why Grokster and Morpheus Won, Why Napster Lost, and What the Future of Peer-to-Peer File Sharing Looks Like Now – a nice little summary, but nothing new here, including the expectation that Apple will show the way….

  • So, do you think that Madonna’s "What the f*ck do you think you’re doing” was effective? From Billboard: 50 Cent Holds Off ‘Idol’ To Return To No. 1

    Linkin Park’s “Meteora” (Warner Bros.) falls 4-7 on a 17% drop to 92,000 copies, followed by last week’s No. 1, Madonna’s “American Life” (Maverick/Warner Bros.), which tumbles to No. 8 as sales of the album slid 62% to 91,000 copies.

    Effective, indeed – just not the desired one. (See also the Reuters News piece from Yahoo! – via Aimee Deep)

  • Today seems to be the day for CNet News to report the obvious. In addition to the item below on music online, there’s this gem on Microsoft and DRM: Ballmer touts DRM to customers:

    “Some of technology’s potential…has not been fully realized, because of concerns about illegal use of digital information, about confidentiality and about privacy,” Ballmer wrote. “E-commerce in music and movies has been slowed, because artists and publishers have been concerned about protecting their copyrighted works from illegal use. More broadly, businesses don’t exchange digital information with customers and partners as freely as they might, because they fear it could fall into the wrong hands.”

    The e-mail contained few if any new tidbits of information about details of Microsoft’s technology or strategy. But as a policy statement, it highlighted for customers one of the key features that the software company sees as an impetus for growth across its product line in the next few years.

    … The idea is to protect corporate and personal data from finding its way outside the circle of people who are intended to see or use it, the company says. Just as songs could be pre-loaded with rules that prevent them from being copied or distributed online, e-mails or Word documents could be wrapped with protections that prevent them from being sent to unauthorized individuals or outside a corporate firewall.

    “As these technologies become widespread, their protection will help encourage wider sharing of information within and between organizations, improving communication and productivity by assuring information workers of the confidentiality of their documents and data,” Ballmer wrote.

    Did you catch the little 1984 moment in the above excerpt: freedom is slavery – to your computer!

  • Surprise! Music swappers are music buyers too

    Offering some insight to the recording industry as it struggles to boost sales online, a survey finds that Web surfers who download music from song-swap sites are more likely to buy music online, as well as offline at retailers.

    The research put rap music as the No. 1 genre purchased by online fans, which may help record companies gain a better understanding of who their online customers are.

    The survey released Wednesday was based on 36,000 Internet users and released by Web tracker Nielsen/NetRatings, a unit of NetRatings.

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