(entry last updated: 2003-07-29 20:18:09)
I’m off to Detroit for a couple of days – my job and all that. While I have one night in a hotel with high-speed internet, I’m not sure that I’m going to get to do much here until next week.
Steven Levy at Newsweek: Pirates of the Internet [pdf]
Ultimately the Internet is going to be great for music lovers, artists and even the record labels, if they are willing to hang loose while new business models emerge. But right now the RIAA and its congressional water carriers are hitting the wrong notes. It makes no sense to bring thousands of people into the dockets-and maybe the prison system-for turning on a friend to the fuzz tones of the White Stripes or the inspirational melodies of Orrin Hatch without a license. There are better things for prosecutors and the courts to focus on.
Like real national security.
I haven’t been mentioned in a John Dvorak column since the heyday of OS/2 (and, yes, I realize that "heyday" is something of an overstatement) when I sent him an e-mail describing an ironic bit of IBM’s stealth marketing that came my way.
Keven Heller points to John Dvorak’s piece, The Blog Politic Versus Congress, wherein he challenges the blog community to do more than just talk about the copyright problem – starting with the reaction to Conyers-Berman.
What is interesting to me is that the blogging community is all over this bill, but doesn’t seem to be doing much more than complaining and ridiculing it. Is this a useful exercise in activism or a hint at things to come?
[…] But where is the leverage? In the past I’ve complained about the inability of net-heads to make any real impact on politics. The Computer Decency Act, for example, waltzed through Congress without a hitch despite the online grumblings all over the place. The blog community may be different. It’s more politicized than any other online movement, with Democrats, Republicans, and mostly Libertarian variants each yakking loudly and getting re-quoted everywhere. The real influence is still an unknown. It’s possible that this newer form of carping will be just as ineffective.
Kevin has already started a bit of civil disobedience. I can only point to the students that I teach – and note that the circle of those students is increasing as we prepare to start a new class at Cambridge University in the fall.
Part of the problem is that, as Dvorak correctly points out, Conyers-Berman is more of a sop to the sponsors’ consituency than a credible legislative initiative. Yet, he is also right that it’s important to find ways to combat the slide of the rhetoric toward legitimizing the perspectives that Conyers-Berman embody. Aside from re-upping with the EFF and the ACLU, I’m going to have to take a close look at what more I could be doing.
But, there’s also the possibility that it’s the discussion alone that can act to change the political climate, notwithstanding John Dvorak’s contention that it may be just a "new form of carping." At least one thread of this year’s ILaw was organized around the idea that the weblog represents a way for more citizens to participate in political discussions, arguing that society benefits as more citizens elect to participate in the public discourse, rather than passively observing the political process. How one leverages the weblog discussion may not yet be apparent, but it’s certainly the case that there are lots of experiments going on today.
Update: Donna’s on top of this, offering up a number of good resources; c.f. Derek – as I read the column, Dvorak does appear genuine
GrokLaw gets a new target to help in its explanation of the GPL: Sun Finds a New Way to be Repulsive
Some nonsense from Slashdot (you can decide who’s being nonsensical): 2191.78 Years for the RIAA to Sue Everyone
este writes “According to an article in the Inquirer, if the RIAA maintains its rate of lawsuit issuance, it will take more than two millenia for them to sue evey P2P file trader. The author accounts for many additional difficulties facing the RIAA in this daunting task.”
The Slashdot comments on speed limit enforcement are particularly illuminating. See also this USA Today article: Internet song swappers say legal threats won’t stop them [pdf]
The interesting thing about the USAToday article is the way that it depicts Jupiter going out of its way to tell the industry that everything’s going to be fine once they embrace digitial distribution. Is Jupiter being disingenuous, helping to get the industry out of the way as soon as possible, or are they trying to find a way to strongarm the rest of the world into agreeing with the RIAA’s perspective that they are a vital piece of the picture?
Here we go again (actually, I haven’t gotten my last check yet!): Labels charged with price-fixing – again
In a unanimous decision, members of the U.S. FTC (Federal Trade Comission) chastised Vivendi Universal and Warner Communications for restricting competition in the sale of “The Three Tenors” – Jose Carreras, Placido Domingo, and Luciano Pavarotti – audio and video products. It seems that PolyGram (a company later bought by Vivendi) conspired with Warner “to curb discounting and advertising to boost sales of recordings that the two companies jointly had distributed based on the tenors’ concert in Paris during the 1998 soccer World Cup.”
(entry last updated: 2003-07-29 09:00:58)
Another Microsoft IP infringement lawsuit settled: Microsoft settles suit with Immersion
Although this article title screams tedium (MusicMatch to offer subscription free downloads), it contains a fair bit of information about the emerging structure of the for-fee download businesses.
Slashdot has a bit on IBM’s rumblings in the SCO matter: IBM Points Out SCO’s GPL Software Distribution, with particular discussion of this MozillaQuest article: SCO Agrees IBM Owns AIX, JFS, NUMA, RCU Copyrights
From SecurityFocus via The Register, an editorial on the legal vagaries of P2P file sharing by Mark D. Rasch, a former head of the Justice Department’s computer crime unit: Copying is Theft – and other legal myths (with some odd misspellings, IMHO – "Valente" for example):
But technically, file sharing is not theft.
A number of years ago, the U.S. Supreme Court dealt with a man named Dowling, who sold “pirated” Elvis Presley recordings, and was prosecuted for the Interstate Transportation of Stolen Property. The Supremes did not condone his actions, but did make it clear that it was not “theft” — but technically “infringement” of the copyright of the Presley estate, and therefore copyright law, and not anti-theft statutes, had to be invoked.
More on the new RIAA head, Mitch Bainwol:
From today’s Boston Globe:
(entry last updated: 2003-07-28 21:51:37)
From the people who brought you the PATRIOT Act, we now get Hilary Rosen’s replacement for the RIAA: GOP staffer chosen to head RIAA
The big record labels’ trade group said Monday that Mitch Bainwol, former chief of staff to U.S. Senate Majority Leader Bill Frist, will replace Rosen at the RIAA’s helm. Rosen left the group several months ago, after announcing her planned departure in January.
Although Bainwol has little experience inside the music industry, he brings deep connections to the Republican Party, something the RIAA has largely lacked under Rosen’s leadership.
[…] Bainwol joins the RIAA at a critical moment in the group’s history, as it plans to launch what could be thousands of lawsuits against individual music consumers who have allegedly traded large numbers of copyrighted songs online. The controversial drive, already under way, has threatened to further compromise the industry’s relationship with online consumers.
A CNet News rundown: Net is alive with the sound of music
Benny Evangelista brings together everything you could want to know on this subject, for the moment: Advice to avoid copyright litigation:
Experts sharing tips to help defend against file-sharing lawsuits [pdf]
It’s possible the courts could one day rule file-sharing is legal or a consumer backlash could force Congress to change current copyright laws. Before that happens, however, the legal costs for an individual battling the powerful RIAA could be devastating.
“What I think they’re going to do is start suing moms and dads and families across America,” said San Rafael attorney Ira Rothken. “They could lose their house or lose their ability to send their kids to college. That is not the intent of copyright statutes, to bankrupt a middle-class family.”
Something to take to read on the plane this week: Privacy, Economics, and Price Discrimination on the Internet [from JoHo] From the abstract:
Privacy appears to be declining largely in order to facilitate differential pricing, which offers greater social and economic gains than auctions or shopping agents. The thesis of this paper is that what really motivates commercial organizations (even though they often do not realize it clearly themselves) is the growing incentive to price discriminate, coupled with the increasing ability to price discriminate. It is the same incentive that has led to the airline yield management system, with a complex and constantly changing array of prices. It is also the same incentive that led railroads to invent a variety of price and quality differentiation schemes in the 19th century. Privacy intrusions serve to provide the information that allows sellers to determine buyers’ willingness to pay. They also allow monitoring of usage, to ensure that arbitrage is not used to bypass discriminatory pricing.
[…] There is no easy resolution to the conflict between sellers’ incentives to price discriminate and buyers’ resistance to such measures. The continuing tension between these two factors will have important consequences for the nature of the economy. It will also determine which technologies will be adopted widely….
From A blog doesn’t need a clever name: Another complaint to consumer watchdog about EMI music discs – truth in advertising in Australia and copy protected CDs.
(entry last updated: 2003-07-28 12:00:44)
For what it’s worth, and noting that Larry’s moved his blog, everyone should know that http://furd.com/furdlog will also get you here. I haven’t published it, but I’ve had the domain name for some time.
A few more bits from the NYTimes today:
Checking out the BBC site today led me to this July 10 article, Electronics firms accused over piracy, which is notable for the unearthly arrogance exhibited by the IFPI representative and the BMG chairman quoted in the article. Basically, we get an assertion that the record industry was happy to adopt CD technology because it was to their advantage, but it wasn’t up to them to understand what the implications of the technology might be (particularly the open format specification vs. copy protection). This is sheer nonsense – there were plenty of people who pointed out that this could be a problem; the industry simply elected not to invest in the development of a technology that would have met their needs more effectively – and they wanted to exploit the economics of the network effect in the adoption of the technology. It’s a stunning look at a very self-centered perspective on the problems.
“We are not technocrats, we are humble creators of music.
“It is a complete myth to say it is the record labels responsibility to create technology.”
The record industry has been criticised for not embracing developments such as file-sharing or dealing with the CD piracy threat.
But Mr [Tim] Bowen [of BMG] said: “We are not Apple and we are not Microsoft.””
Siva‘s third article in his series: P2P: the new information war? The topic this time is the issues of control and anarchy in the information economy when examining the progress and methods of scientific exploration.
Apparently, Mr. Gates likes the SCO strategy so much that he’s working an angle himself: Gates: Microsoft IP Finds Its Way Into Free Software (a worthwhile comment). The GrokLaw posting I cited yesterday is a worthwhile companion read: The Tide Turns; as well as this update: MS: Linux Will Be Hounded Over IP For 4 to 5 Years
Slashdot picks up the German court’s block (on constitutional grounds) of the Bertelsmann suit that claims that their financing of Napster in its end-stages constituted vicarious infringement: German Constitutional Court Blocks Napster Suit (the meta debate in this set of comments alone is worth a look!)
From The Register: Napster 2.0 by Christmas; SiliconValley.com: Napster re-launch due by Christmas
The RIAA subpoena spree: Subpoenas Sent to File-Sharers Prompt Anger and Remorse [pdf]
The popularity of file-sharing software, which allows users to copy music, movies and other files from one another’s computers, has long benefited from a sense of impunity among users. By tearing away the Internet’s veil of anonymity, the record industry hopes to scare people away from using the software and crack a cultural consensus that tends to regard file-sharing as a guilt-free activity.
[…] “The practice of filing thousands of lawsuits is a game of chicken, and not a sustainable model for the industry or the courts,” Mr. [Jonathan] Zittrain said. “The overall puzzle for the industry is how to truly convince the public that this is in the public interest.”
He said there was no obvious historical analogue to the scattershot subpoenaing of individuals in copyright law enforcement, which has traditionally been aimed at businesses or people who are profiting from illegally copied material. He likened it instead to raids during Prohibition, or red-light cameras that catch drivers disobeying traffic laws when they think they are unobserved. Both have given rise to social outcry, Mr. Zittrain said, even though they were used simply to enforce the law.
The Register has this tale of one kind of consumer response: RIAA blocks attacks with TST-Secure-OS
Update: And Tech Law Advisor summarizes the Jonathan’s intent in his quote (and possibly Amy’s direction as well) with this posting: Should consumers be treated the same as competitors?
Zittrain is drawing two distinctions here. The first is between use of the
copyright and use of the work. A competitor uses the copyright, whereas a
consumer uses the work. The second is that historically, copyright is a tool
used against businesses i.e. competitors, i.e. the person selling pirated
copies on the street, and not against consumers.
A topic from last week’s Politech gets NYTimes treatment today: Out of the U.S. and Out of Luck to Download Music Legally [pdf]
But she said that consumers who do not have a credit card with a United States billing address cannot download iTunes, because Apple has rights to sell over 200,000 songs in its database only in this country.
Michael Powell defends his position in today’s NYTimes op-ed page: New Rules, Old Rhetoric. His argument seems to center on the fact that no one liked the status quo, so therefore change must be good. And HBO got lots of Emmys, so media concentratio will make it possible for local broadcasters to compete, since we all know that it’s the little local broadcasters who are anxious to buy up more stations.
A FoxTrot look at the music industry [local]
(entry last updated: 2003-07-27 11:12:20)
(entry last updated: 2003-07-25 21:36:34)
Big Blue speaks: Linux wars: Big Blue strikes back
CNet: Court put Napster suit on pause. This is a little odd: the German constitution may defend Bertelsmann in the vicarious liability suits over bankrolling Napster in its declining days.
“If lawsuits in (foreign) courts are obviously misused to bend a market player to one’s will by way of media pressure and the risk of a court order, this could violate the German constitution,” the court said in a statement late on Friday.
The court said its emergency ruling not to allow the delivery of the charge for six months was only preliminary and that the decision on whether the lawsuit was indeed unconstitutional would have to be made after a full hearing.
I see that Mary has posted on last evening’s event
From CNet News: a landmark case in the domain name space: VeriSign to face Sex.com lawsuit
The decision puts domain names on the same footing as ordinary, tangible property and could ultimately be hugely influential in Internet-related cases. Previously, the legal status of domain names has been uncertain, and Network Solutions has consistently argued against according domains the same kind of property protections as an automobile or piece of real estate.
A wealth of Slashdot topics tonight:
A new kind of music distribution model in SFGate – branded corporate distribution: Bands to Fit the Brand
From offices here and in Brattleboro, Vt., Rock River has flourished while the music industry overall has choked amid declining sales and Internet file sharing.
And it’s about to flourish more.
Next week, when Gap Inc. introduces a CD featuring Madonna and hip-hop star Missy Elliott singing about Gap jeans — which will coincide with TV ads showing both in Gap corduroys — the San Francisco clothing chain will make a high-profile addition to a trend widely embraced in recent years.
San Francisco’s Pottery Barn has been selling music for almost a decade, with astonishing success.
(entry last updated: 2003-07-25 11:34:05)
Karen and I went to Donna’s sendoff party at the Berkman Center last night. I’m betting that I managed to find the one un-airconditioned #1 bus from MIT to Harvard, so I was a sodden mess by the time I got there. Had a great time, though, seeing several from ILaw and getting to meet a couple of people I only know electronically: Mary Hodder of bIPlog (who was transiting Cambridge on her way back from over a month in Italy) and Wendy Koslow. Jonathan Zittrain was there, hooking his iPod into the sound system and plotting some more research with Ben Edelman, I’m sure. I also got to catch up with Diane Cabell and Robyn Mintz. Charlie Nesson was on his way out as I arrived, and Christopher Lydon was on his way in as I left.
Unfortunately, I arrived too late to hear the speeches or see the gift giving, but I think the best gift I did see was a 20" by 20" air filter with something like "Donna #1" spray painted on it in honor of her work on The Filter.
A great time – and I’m looking forward to Mary’s return to bIPlog; she’s got some very interesting stuff she’s working on.
Donna and Kevin point to The Subpoena Defense Alliance WWW page
A look at the effect of copyright term length – what to do when the inheritor cares less about the material than the fans Rock Idol’s Legacy Devolves Into Family Feud [pdf]
While the MPAA works to curb digital "piracy," we get these (embarassing?) statistics in a down economy: Video Revenue Is Still Rising [pdf]
While 2003 movie box-office receipts are down by more than 4 percent from last year, video revenue is up by 16 percent, according to a report by Video Business magazine. In the first half of the year consumers spent $10.2 billion buying and renting DVD’s and videocassettes, a healthy performance for an industry that some analysts once wrote off as road kill on the supposed fast lane to the information superhighway.
[…] Video Business reported that $4.8 billion has been spent buying DVD’s so far in 2003, as opposed to $1.05 billion purchasing videocassettes. On the rental side DVD also has taken the lead over the cassette. The studios have priced discs low for sales, but not everyone wants to buy most movies. “The single biggest change this year is the surge in DVD rentals,” Mr. Hettrick said. “At first with the prices so much less on DVD everybody dove in and bought everything, but now people are turning back to more typical habits and renting titles they don’t want to watch many times.”
A look at internet culture – when are bits not just bits? Star Wars Kid Files Lawsuit
Wired News has this article on the RIAA activity and collegiate responses: RIAA, Colleges Seek Piracy Fix. It includes a discussion of the Penn State initiatives (recall from earlier discussions of the Penn State position that they have an RIAA lawyer on their board.)
Slashdot discusses reports that RIAA Now Targets Pirates’ Parents. The title of the AP Wire piece is a clever subversive take on the issue IMHO: Everyone Is a Target in Music Subpoenas [pdf]; Wired News’ title is less so: RIAA Leaning on Kids’ Parents
Slashdot on Doc’s Save the Net: Saving the Net
The Register has also published some letters in response to the RIAA lawsuit spree: RIAA is ‘fighting for survival’
Saw Jonathan Zittrain at the Berkman Center‘s send-off for Donna as she prepares to head to the EFF. Jonathan said he had recently given a seminar to the Harvard Law faculty on the SCO case that he thought went well – maybe we’ll get a peek sometime?
In the interim, here’s something inflammatory from The Register: Uncle Sam may need to pay for Linux. On the other hand, CNet cites a Netcraft survey that concludes Web sites unfazed by SCO threats
Op-Ed from Newforge via The Register – one view on the question of Open Source in government: Govt. must be allowed to specify open source software; and here’s a particularly noxious opposing view by our good friend James De Long: Open source mandate–let the markets rule (Good idea – as long as the markets operate fairly)
Robert X. Cringely: Son of Napster:
One Possible Future for a Music Business That Must Inevitably Change – the idea is Snapster, a "mutual fund" of CDs, collectively owned and downloadable at a pre-arranged rate. Claimed to be legal by Cringely, although I think he makes a stronger claim for "fair use" than is available and he misses the fact that, under the law, each download is a copy, meaning that there are, at minimum, royalties to be paid to both artists and songwriters (they are digital copies). Slashdot discussion: Cringely Proposes a Music Sharing Alternative; looks like Derek is going to look up some of the rules on mutual funds
After my assertions of credulous reporting on ACCOPS, I have to point to this Atlanta Journal Constitution editorial: Lock ’em up, throw away the mouse [pdf]
Critics of this harsh proposal are right. Music and movie industry people are desperate to protect their old business models, rather than finding ways to turn technology to their benefit. For instance, why not work harder on ways to market and deliver music digitally online rather than just through CDs?
[…] Jailing music downloaders sounds more like stopgap scare tactics than business solutions. Perhaps wiser heads are busy crafting real strategies for these big and important industries.
Note that they give Rep. Conyers an opportunity to be heard as well: Bill protects artists’ work from thieves [pdf]. His text is a little spooky, first by conflating standard criticisms of how artists get limited returns from their records with claims that now it’s file sharing, rather than exploitive contracts, that are to blame:
Today, those same struggling musicians are having their art stolen on the Internet. The pattern has become all too clear — a musician finally makes his or her first hit single but earns almost no money from the song because someone put it on the Internet for everyone to take for free.
And then closing with something that sounds like the standard canard about shoplifting, except somehow these shoplifters are now also giving away their ill-gotten gains:
While those who want something for nothing like to use scare tactics about this bill, there is nothing new or different about these ideas. One cannot, under current law, shoplift compact discs from a music store and then put them on the street for everyone to take for free.
Would he be happier if the shoplifters sold what they "stole?"
(entry last updated: 2003-07-24 14:07:43)
(entry last updated: 2003-07-24 13:39:13)
Derek’s got another Stan Leibowitz pointer: Will MP3 downloads Annihilate the Record Industry? The Evidence so Far
The story of my life <G>: Techies by Necessity, Not by Choice [pdf]
As consumer electronics proliferate and consumers grow increasingly disenchanted with technical support operations (which routinely charge for calls), many people are discovering that whether they want to or not, they are developing more than a little technical proficiency. Some, like Mr. Marcuse, become virtual experts. But many of these accidental techies learn only as much as they absolutely must.
“People are getting more proficient because they have to, not because they want to,” said Steve Cousins, manager of the Advanced Systems Development Laboratory at the Palo Alto Research Center, known as PARC, a subsidiary of Xerox.
For Ms. Kilhoffer-Reichert and others, such expertise derives from economic necessity, as their livelihoods depend on the technical tools they use. “If my computer isn’t working, I equate it directly to lost income,” she said.
Yet Mr. Marcuse says he has learned just the amount he must, perhaps slightly less. “I can get my computer to operate most of the time, and frequently there are things wrong with it that I just tolerate,” he said. “I don’t want to deal with some company’s tech support bureaucracy. I’d rather just suffer with the imperfection.”
The NYTimes on the House vote: F.C.C. Media Rule Blocked in House in a 400-to-21 Vote [pdf]; the accompanying news analysis: F.C.C. Chairman Endures Rebuke, Despite Putting Law Above Politics [pdf]
Slashdot on yesterday’s House vote: House Overturns FCC Media Consolidation Plan
Doc Searl’s take: The Fifth Horse, including a pointer to W. Safire’s Op-Ed today: Bush’s Four Horsemen [pdf]
TechTV’s RIAA hitlist gets the Slashdot treatment.
(entry last updated: 2003-07-23 17:59:46)
From the NYTimes APWire: House Votes, 400-21, to Block Media Rule by the F.C.C. [pdf]
By a 400-21 vote, lawmakers approved a spending bill with language blocking a Federal Communications Commission decision to let companies own TV stations serving up to 45 percent of the country’s viewers. The current ceiling is 35 percent.
Despite GOP control of the White House, Congress and the FCC, the House vote set the stage for what may ultimately be an unraveling of a regulatory policy that the party strongly favors. The fight now moves to the Senate, where several lawmakers of both parties want to include a similar provision in their version of the bill.
Top Republicans are hoping that, with leverage from the threat of a first-ever veto by President Bush, the final House-Senate compromise bill later this year will drop the provision thwarting the FCC.
[…] The House bill affected only part of the FCC’s decision.
By 254-174, the chamber rejected an amendment by Rep. Maurice Hinchey, D-N.Y., to kill the entire FCC ruling, which he said would impede local media control. The June 2 ruling also would make it easier for companies to own newspapers and broadcast stations in the same community, and to own more than one broadcast outlet in a market.
This Salon headline on their writeup of the controversy is now quite appropriate: Congress to Big Media: Not so fast
Larry Lessig points out the Newsweek writeup of the movie adaptation [pdf] of the League of Extraordinary Gentlemen. As he’s mentioned before, the comic reflects the benefits of having a public domain from which new creations can be made; the writeup discusses the problem within the context of the movie:
At the same time, the film illustrates how modern copyrights restrict the use of established cultural texts that should be in the public domain. For American audiences, Tom Sawyer is added to the mix, but evidently Fox couldn’t clear his film rights, so he’s referred to only as “agent Sawyer.” A friend of mine walked out of the movie having no idea Mark Twain’s rambunctious kid was all grown up and inexplicably sneaking about London with a shotgun.
Then there’s the film’s generic invisible man. Though H. G. Well’s lunatic scientist, Hawley Griffin, was available to Moore for the comic book, Universal made “The Invisible Man” in the ’30s and still owns film rights. So this is an invisible man named Rodney Skinner, and his awkward origin story, explained early in the movie, brings the momentum crashing to a halt. A better script could have fixed these flaws, but someone didn’t love the film enough to care.
Here’s a disclaimer: my wife, Jennifer Granick, and her boss at Stanford Law School, Larry Lessig, spend a lot of time worrying about how Hollywood bigfoots like Disney successfully lobby Congress to extend the copyright term and keep works out of the public domain….
“The League of Extraordinary Gentlemen,” both the comic and the film, demonstrate why ordinary people should care about Lessig’s cause. A rich public domain enables creative geniuses like Alan Moore to reach into society’s collective memory and produce complex, fun and socially valuable works. The existence of the “League” comic doesn’t harm the original creators, it directs a new generation of fans back to the source material that continues to inspire pop fiction today. Meanwhile, the film shows how ridiculous copyright restrictions have become. Fox probably could have used Wells’s original invisible man but didn’t want to risk an expensive legal skirmish with Universal. Just the existence of onerous copyright law has a chilling effect on creators.
The public-domain possibilities that Moore demonstrates are endless. What about a League of Extraordinary 20th-Century Gentlemen? Tom Swift joins with Doc Savage, the Shadow and Nancy Drew. Folks would pay a lot of money to see or read that story. But it couldn’t happen. Those heroes are all locked up under copyright.