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August 31, 2003

2003 August 31 [12:43 pm]

(entry last updated: 2003-08-31 12:43:52)

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August 29, 2003

2003 August 29 [8:08 am]

(entry last updated: 2003-08-29 13:31:26)

  • Yet another "revolutionary" music CD delivery format: Sony Disc Manufacturing Successfully Manufacture Kool Keith’s Newest Release “Thee Undatakerz” Using Consumer Surround Sound Inc. Revolutionary CS2CD Format

    When asked about the accompanying CS2ADC technology on the CS2CD, Mr. [William] Grecia [Consumer Surround Sound CEO] continued to add “CS2ADC prevent full 1:1 faithful cloning of a CS2CD disc as a whole. Unlike other restrictive commercial ‘copy protections’, CS2ADC allow full CD audio playback in PC’s and DVD players. CS2ADC is the perfect balance between retaining consumers ‘fair use’ rights, and the music industry need for a retail product that consumers cannot (re)create with a CD/DVD burner. Mass piracy and duplication of this format is not an issue for my clients.” When asked about the significance of a major record label’s replication facility manufacturing the CS2CD, he concluded “Major record companies can use this format to boost and revive retail. My indie clients are replicating at the same places the big guys are. My next goal is to make a big impression at the upcoming CES show.”

    Wonder what the "gotcha" is? Going to have to do a little research.

  • I missed Marci Hamilton’s latest from FindLaw’s Writ: The Era of Entitlement:

    What Alabama Judge Roy Moore, File “Sharers,” and the Catholic Church Have in Common

    Now that I’ve read it, Marci does make a couple of reasonable points, mostly about the foolish moral relativism embedded in the arguments made by those who claim that record company greed justifies copyright infringement. But I also have to say that the whole thing reads like she’s drunk some variant of the "neo-con Kool-Aid," and she likes it — at least, this article reads more like a neo-con screed in tone, if not in content.

    One of the real difficulties that she faces in making her argument lies in the perjorative nature of the word "selfishness." On one hand, the economic engines of the free market are fueled by the actions of consumers to satisfy their own interests. On the other hand, unbridled selfishness (or, possibly more appropriately, short sighted selfishness) is a recipe for a total social breakdown.

    Prof. Hamilton argues that "responsibility" is the answer to the mixed blessing of selfishness. I can agree that responsibility is part of it, but I would argue that respect for others is a more important dimension. The fact that the record industry has treated their customers as suckers to be exploited to the full extent possible, rather than ensuring that they receive good value for their money, it at least as much at the root of the music as any of the limitations of the infringing public - just as the failure of Judge Moore to respect the religious views of others (and the legal needs of society) and the failure of the Catholic bishops to respect the rights of their parishioners are equally emblematic of critical failures.

    We can’t afford to have sociopaths in our midst, whatever their agendas.

  • Today seems to be a day of protest over software patent proposals in Europe. Slashdot: Sites Shut Down to Protest Software Patents. From the OnlineDemo information page:

    The FFII organized an online demonstration against software patents. On August 27th more than 2500 web replaced their title page with a protest page against software patents. Days later, many are still doing so, and new ones are still joining. The idea is that with software patents many sites running/serving possibly patent infringing software have to go offline sooner or later. Via this demo, this effect is demonstrated in advance.

  • MS reponse to Eolas: Microsoft preps IE changes in response to patent ruling

  • JoHo points to Jane Doe’s petition to intervene in the RIAA subpoena to Verizon

  • Mary Hodder discusses the state of trademarks in the wake of the Franken/Fox suit: I’m Trademarking "Trademark®" - she forgot to include "freedom of speech" (only one of several claims)

  • For some lighter fare, see this link [via TechLawAdvisor]: RIAA Claims Music On Car Radios Meant Only For Original Vehicle Owner!!!!

  • Derek’s back from Calornia and loaded for bear, with two lengthy posts (first, second) on the Video Pipeline case (copyright infringement by a video firm constructing trailers for promotion of film rentals) [earlier Furdlog entry]. His posting goes into the characterization of fair use in depth, ultimately concluding that "[t]his is why fair use is like flipping a coin."

    Or, more importantly, why there is a need to define fair use in a way that doesn’t require the [expensive] application of a judge - chilling effects, anyone?

  • Infringing Actions points to the global reach of cellphones, ringtone customization and copyright litigation: Music Rights Society Accuses MTN of Copyright Infringement

  • Bruce Sterling on the fact that revolutionaries, digital or otherwise, need to do more than just depose the offensive order: Freedom’s Dark Side

    So Europe’s open source revolutionaries have a great model for fighting the power. But they rarely consider the aftermath. As the former Soviet Union sadly demonstrates, if you depose the system and don’t replace it with anything, you unleash not only altruism but a host of dark traits no less human yet far more destructive. When that happens, you may well get things like well, like this remarkable souvenir I bought for about $1 in Bosnia-Herzegovina.

    It’s a pirated audiotape of “turbofolk” music by Ceca (pronounced “Tsetsa”), the busty pop-star widow of notorious Balkan war criminal Zeljko “Arkan” Raznatovic. Ceca is in prison at the moment, mostly because her latest boyfriend allegedly helped assassinate the prime minister of Serbia to protect the illicit revenue of Belgrade’s Zemun gang. When outraged avengers raided Ceca’s crib, they found the place crammed with automatic weapons. That’s like discovering Avril Lavigne has her own cruise missiles.

    Thanks to this disaster for the people of the Balkans, I’ve got some nifty music to play in my walkman, and the information was practically free. Ceca won’t get my money. Nor will her publisher, her backup musicians, her kids by the dead warlord, or her fellow mobsters. The Bosnians would never give Ceca her cut, because (a) they’re amazingly crooked and (b) she’s a Serb and they hate her guts. So, in an orgy of contempt for cops, lawyers, and WIPO, they steal her music, repackage it with lousy graphics and worse sound quality, and sell it for peanuts to passing Americans.

    The denizens of Open Cultures want their connected collectivism to liberate the world from regulations, markets, and intellectual property. But what if victory only clears the way for corruption of their beloved culture? When I listen to Ceca, I have to wonder what dark passions and ancient evils have been held in check by the grim totalitarianism of the profit motive. We may yet find out.

  • Off-topic: An NYTimes op-ed piece use’s a classic Melville character to describe a certain languor that comes over me from time to time these days, as well as warning that resisting it is of vital importance: When Life Offers a Choice Between the White Wall and the Brick Wall [pdf]

    I’ve been thinking about Bartleby lately, probably because my job compels me to follow world events. The mess in Iraq presents two seemingly unacceptable possibilities: staying and having our soldiers killed daily, or leaving and ushering in chaos. The only thing worse than confronting the North Koreans about their nuclear weapons program, it seems, is not confronting them. On the domestic front, omnibus bills in Congress routinely tie the necessary to the intolerable. After the blackout Republican leaders refused to separate out a proposal to upgrade the power grid from a larger bill that gives the energy industry tax breaks, and the right to drill in Alaskan wildlife preserves. For Californians, sending a strong message that the recall is an outrage means pulling the lever beside Gray Davis’s name.

    I have friends who now talk cheerily of self-imposed “news blackouts,” taken on to spare themselves the latest reports of corporate malfeasance, layoffs and killings of bus riders by suicide bombers. In today’s world of bleak alternatives, however, Bartleby’s story is a sobering reminder that what life requires is remaining engaged — preferring, and acting on those preferences. Contemplating Bartleby’s sad end may give us some strength as we continue to stand up for troubling foreign policy options, settle for anemic legislative victories and vote for the lesser of two, or more, evils.

  • As the clock ticks toward Microsoft’s deadline for taking MSN’s instant messaging protocol private (and locking out the authors of IM clients), MS is making an offer it hopes won’t be refused: Microsoft seeks cash from IM client makers.

    Microsoft isn’t targeting rival IM network operators such as America Online Inc. or Yahoo Inc., but makers of clients that use the Microsoft MSN IM network and compete with Microsoft’s own MSN Messenger client.

    [...] “Running an (IM) network is expensive,” said Lisa Gurry, group product manager for MSN at Microsoft. “We can’t sustain multiple other people’s businesses, particularly if they charge for certain versions of their software. We’re introducing licensing processes for third parties like Trillian.”

    Microsoft is making changes to its network that will lock out “unlicensed or unauthorized third-party clients.” The first phase of those changes is scheduled to go into effect mid-September, followed by a complete lock-out on October 15, Microsoft has said.

    Writing an operating system is expensive, too, yet Microsoft seems to *want* people to build upon that; IM is really *that* much harder to run? Or is Microsoft just yearning for another opportunity to extract monopoly rents?

  • KaZaA is working to move up in the world. InfoWorld: Kazaa launches premium service; CNet News: Kazaa retuning promises faster downloads

    Kazaa Plus offers enhanced search, enabling people to start searches that run every 30 minutes for a 24-hour period that could yield up to 9,000 results. Customers will be able to download files from up to 40 sources at one time, up from only eight in the advertising-supported version. The update also includes enhanced virus protection.

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August 28, 2003

2003 August 28 AM [8:07 am]

(entry last updated: 2003-08-28 13:26:19)

  • Looks like the W3C has issued a comment on Eolas v. Microsoft. See the Slashdot discussion: Plugin Patent to Mean Changes in IE?

  • More in an occasional series of postings here on how technology is changing the market and culture of movie-making: DVDs are for losers

    New rule: DVDs are for losers. Hey, why pay $9 to watch garbage in a crowded theater when you can pay 24 bucks and actually own that garbage? After all, “Kangaroo Jack” is the kind of film you need to see 10 or 12 times before you really “get it.” Be honest, you’re not a cinephile, you’re a dateless 30-year-old watching “Die Another Day” in your basement.

    DVDs, you see, are evil because they now account for over half the money Hollywood makes, and they’re all bought by the young, dumb, car-crash-loving male demographic, the same one that’s given us MAXIM magazine, attention deficit disorder and George Bush. Also, since the little teenage darlings who control all media are not old enough to see R-rated movies, our entire culture is now PG-13 — the kind of blanded-down mush designed to be as inoffensive as possible to the widest group possible, the same theory that made airline food what it is today. And that’s what movies are now: airline food.

  • Online music broadcasters sue RIAA [pdf]

    An alliance of online music broadcasters sued the recording industry in federal court Wednesday, alleging major record labels have unlawfully inflated webcasting royalty rates to keep independent operators out of the market.

    Webcaster Alliance, an organization claiming some 400 members, filed the suit in U.S. District Court for the Northern District of California, claiming the major labels and the Recording Industry Association of America have maintained a monopoly over their music.

    The suit alleges the negotiations for arriving at royalty rates to broadcast songs over the Internet violated federal antitrust laws and seeks an injunction that would prevent the major labels from enforcing their intellectual property rights and collecting royalty payments.

    CNet News: Small Webcasters sue RIAA

    Slashdot carried an article on the threat to do this in early July: Webcaster Alliance Threatens To Sue RIAA.

    Here’s The Register’s story: Webcasters slap RIAA with antitrust suit, which includes discussions of how the original royalty levels were set - see this RAIN article from June 2002 for more background on the issue: Cuban Says Yahoo!’s RIAA deal was designed to stifle competition.

    RAIN also covered the Judiciary Committee hearing on this subject: Copyright Royalties: Where is the Right Spot On The Dial For Webcasting (includes streaming video)

    Update: Slashdot: Small Webcasters Sue RIAA

  • From the Boston Globe: Recording industry discloses methods to track downloaders [pdf]

    The RIAA’s latest court papers describe in unprecedented detail some sophisticated forensic techniques used by its investigators. These disclosures were even more detailed than answers the RIAA provided weeks ago at the request of Senator Norm Coleman, a Minnesota Republican who has promised hearings into the industry’s use of copyright subpoenas to track downloaders.

    With luck, these filings will eventually reach the EFF archive. Magistrate Judge John Facciola’s WWW page

    CNet News’ article: RIAA turns up heat on subpoena fighter

    Update: Slashdot discussion: RIAA Tracking Songs by MD5 Hashes

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August 27, 2003

2003 August 27 AM [9:10 am]

(entry last updated: 2003-08-27 11:38:45)

  • Larry on the history of compulsory licensing: the changing tune of the record producers

  • Ed Felten points us to his interview in Business Week: Fighting for Freedom [pdf]

    Q: Do you think intellectual property changes when it becomes digital?

    A: It has to change. And especially for copyrighted works, the business aspects have to change. [With digital material] everything becomes cheaper and easier — any kind of processing, distribution, and use. Even if there were no illegal copying, the advent of digital distribution will put a lot of stress on the movie and music industry. When the distribution costs comes down, that puts more price pressure on the rest of the cost.

    When you buy a CD, $10 goes for distribution and delivery of that product — printing, shipping, [the] record store clerk. The other $7 or $8 of the prices doesn’t seem so high. If it costs cost 5 cents to get something to the consumer, people are less happy about the other $7 or $8.

  • Kevin points out this disturbing Detroit Free Press editorial: Don’t delete Internet privacy [pdf]

    Privacy is destroyed because it has become so easy to reveal the identity of Internet users. Now, a copyright holder simply fills out a one-page form and a federal clerk immediately issues the subpoena to the Internet service provider (Verizon Online, AOL, MSN, etc.). The service provider must then release the name, home address and phone number of that user. Internet service providers risk large penalties if they even question the validity of the subpoena.

    [...]

    Perhaps the most dangerous consequence, the ruling puts subpoena power in the hands of anyone willing to pretend to have a copyright claim. Without a judge’s review, these fraudulent requests are impossible to distinguish from legitimate ones. This flood of legally sanctioned harassment will quickly become the “New Spam,” with the kinds of abuses as limitless as the Internet itself:

    • A gay pornography Web site has already issued subpoenas to SBC Communications to try to learn the identity of visitors to the porn site. Other porn sites and gambling sites can track down visitors and demand payment not to reveal the user’s identity, all under the pretext of enforcing the site’s “copyright.”

    • The most common use may be that of Web site operators who want to identify their visitors for marketing purposes or for more nefarious reasons, including identity theft, fraud or stalking.

    • Private investigators will gain an unstoppable way to turn any e-mail address into a person’s name and street address.

    Nice to see it stated so nakedly in a mainstream press piece.

  • Aptly titled interview with Al Franken following his “fair and balanced” victory: “They can dish it out, but they can’t take it”

    So this is the mindset of the right, that they have to punish you. Joe Wilson, the former Gabon ambassador, was sent to Niger by the CIA and came back and said the uranium claims weren’t true. And when the controversy started broiling again about the 16 words in the State of the Union address and Wilson wrote the piece in New York Times, senior administration officials blew the cover on his wife, who was a covert [CIA] operative. And it jeopardized the lives not only of her contacts but every American, because she was a covert agent in weapons of mass destruction. And it’s a way of intimidating other analysts who might come forward, and there’s a parallel here: You will be punished if you come after us.

    I really think the Wilson thing is the most disgraceful action of any White House since Iran Contra.

    More than Clinton and Monica?

    There’s a difference between getting a blow job and lying about it, and blowing a national security asset.

  • Slate’s ad reportcard article of a day ago on reworked music in videos comes at us from a different angle at JoHo: Devo Swiffer (including links)

  • SFGate’s writeup of Bunner is a little calmer than some of the recent rhetoric has been, although the headline is still inflammatory: Court rules against DVD copying:

    Trade secrets must be protected, justices say.

    Matt’s comments are up. Keven Heller’s got a good set of links that I’m sure I should have read (especially Eugene Volokh’s comments) before I posted my own comments here.

  • MP3 Newswire has an editorial on CD economics, arguing that P2P filesharing’s influence is really about eroding an artificially-created scarcity rent in music:

    Congress is told by the Record Industry Association of America (RIAA) that file trading is theft. In reality the P2P services bring balance to a system long unfairly tilted to favor the supplier. Records are still selling in a world where 60 millions US citizens file trade. A recent Nielsen/NetRatings poll shows file trading actually helps sales.

    But file trading also will keep the record companies in check. The rules have changed and the days of excess profits are numbered. The record industry needs to adjust.

    If the existing record industry cannot adjust, someone new will come in to take their place and - like makers of $5.00 diamonds - will profit handily not by intentionally restricting sales, but through volume.

    Slashdot discussion: Diamonds & the RIAA

  • I see that I have some learning to do to catch up on the PanIP patent litigation.

    If you own or operate an e-commerce web site then you are us. And you need to know that a company in San Diego, Pangea Intellectual Properties (PanIP LLC) is suing companies all across the country. They claim that if you use graphical and textual information on a video screen for purposes of making a sale, then you are infringing on their patent. US Patent No 5,576,951.

    And if you accept information to conduct automatic financial transactions via a telephone line & video screen, you’re infringing on their patent. US Patent No. 6,289,319

    This Slashdot story brought it to my attention: PanIP May Be Standing On Shaky Ground

  • GrepLaw’s interview of the P2P subpoena’s "Jane Doe" plaintiff gets the Slashdot treatment: ‘Jane Doe’ Lawyer Glenn Peterson Talks With GrepLaw

  • The Register: Intel ‘may be guilty’ of over hyping Wi-Fi. Wonder what Les Valdasz would have to say?

  • A look at derivative works and popular culture: Jack Kirby Heroes Thrive in Comic Books and Film [pdf]

    The Kirby influence can also be seen in “The Matrix” and its sequel by the Wachowski brothers, who are comics fans. In the “Matrix” pictures, comics readers can notice parts of Kirby’s “X-Men,” like the intense band-of-brothers philosophy that held the mutants together and the mixture of popular culture and mythological grandeur rooted in “X-Men” and “Thor,” Kirby’s turn on the Norse gods. When Neo travels from the outer world of the Matrix to Zion, the world-within-worlds scenarios that Kirby pioneered in comics are visible. These movements are reminiscent of the Negative Zone, a netherworld that Kirby conjured for “The Fantastic Four.”

    There are elements of the “Star Wars” mythology in “Matrix.” But the idea of a hero turning out to be the offspring of the most inconceivable evil, an immensely grim force that dominates out of pride, did not begin with George Lucas. In 1971 Kirby left Marvel after disagreements over rights to characters he had helped bring to life. After going to DC Comics, the home of Superman and Batman, Kirby hammered together a new vision: an expanse of planets and the gods that controlled them called the New Universe, which unfolded in the “New Gods,” “Forever People” and “Mister Miracle” comics.

    With the malevolent overlord, Darkseid — who turns out to be the father of Orion, a damaged warrior-hero who has to battle a barely sublimated streak of cruelty — Mr. Lucas’s “Star Wars” archvillain, Darth Vader, can clearly be glimpsed.

    Also, we have this article: The Magic of Comics! While Batman Turns 64, a Fan Goes Back to 9 [pdf]

    What else is different? Some mainstream comic book characters now curse. No more #$!%#@. They have sex. No more speculating about the sex lives of the superheroes. They bleed in red, not black, and they bleed a lot more than they used to. “The Sopranos” take on the world has spilled into comic books.

    But the cross-pollination works both ways. On some days, doesn’t it seem as if we live in Comic Book Nation? In the last year the Marvel characters Spider-Man, Daredevil, the Hulk and the X-Men have all done big box office. “The Road to Perdition,” “The League of Extraordinary Gentlemen” and “Men in Black” movies were all based on comics.

    And there’s more to come. Never heard of Hellboy or Hellblazer? You will. On television plenty of recent shows either are based on comics or ooze the pulpy comic book feel: “Buffy the Vampire Slayer,” “Witchblade,” “Smallville,” “X-Files.”

    In hard rock there’s no question that larger-than-death acts like Rob Zombie, Marilyn Manson and Slipknot pay more than passing homage to comics. And on the fields of play, weight-training and steroids have turned athletes into true Hulks, although sans green skin and purple trunks.

  • Amicus briefs in the Grokster appeal are cited in this CNet News article: RIAA, studios gain P2P legal aid

    Several groups, including a list of legal scholars, international copyright organizations, legal music services and other copyright holder groups filed “friend of the court” briefs Tuesday, asking that an April ruling upholding the legality of file-swapping services such as Grokster and StreamCast’s Morpheus be overturned.

  • Today’s Boston Globe paints a glowing picture of game "modders" without getting into the copyright litigation that has come along with many of their activities:

    ‘Mods’ squad adds new life to old games [pdf]

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2003 August 27 - A look at Bunner [7:08 am]

(entry last updated: 2003-08-27 07:32:30)

Basics

So, I finished reading DVD CCA v Bunner last night. The first thing that the reader gets is a demonstration of something discussed at the early stages of any legal career - judges will do almost anything not to decide anything!

As has been noted elsewhere, the California Supreme court’s majority opinion goes out of its way to make as narrow a decision as it possibly could. Essentially, the opinion answers the following relatively simple question: "does prior restraint on a disclosure of illegally obtained information protected by trade secret law constitute a violation of the First Amendment?" Surprise - the answer is no.

Once that question is answered, however, the Court then turns around and declares that the District Court’s finding of fact ((1) CSS is still a trade secret and (2) that Bunner illegally obtained CSS information) is far from clear on the basis of the evidentiary record. In fact, it is so troubled that it asks the Court of Appeals, which has already acted to overturn the injunction against Bunner, to review the record and make the necessary determinations. Because, if Bunner did not get the information illegally, then the injunction is a violation of the First Amendment.

Moreover, there is a concurring opinion by Justice Moreno who asserts that there is no point in sending the case back to the Appelate Court for review. In his view:

DeCSS was not demonstrably secret in this case when Bunner republished it, and Bunner was neither alleged to be the original misappropriator not to be in privity with any such misappropriators.

[...] [A] plaintiff carries the burden of showing that the trade secret remains a secret despite the Internet posting. In the present case, nothing in the record indicates that the DVD CCA met that burden. In fact, the trial court failed to make any particularized findings at all that the information was still secret when Bunner republished it, instead treating the 20 or so defendants as a class and making general statements that these defendants had published secret information. Without evidence in the record that the proprietary information was still secret at the time Bunner downloaded it from the Internet, the DVD CCA cannot sustain its burden of demonstrating a likelihood of prevailing on the merits.

(concurring opinion, slip op. p. 16)

So, there is no reason for some of the hysterical assertions that the notion of "code as speech&quot has been overturned by this opinion. Moreover, there are certainly indications that this case will eventually lead to the finding that CSS is no longer a trade secret, and that posting of DeCSS will not be found to have been a criminal act.

What about the DMCA?

The Court, as I indicated above, was careful to avoid deciding too much, most notably avoiding digging into the DMCA. However, Moreno’s concurring opinion does nose around the edges of this issue, largely to suggest an explanation of why the District Court might have been a little overzealous in their award of injunctive relief:

It is likely that the trial court’s view of this case was colored by the content of the information — that DeCSS is designed to circumvent the encryption of DVD’s. But the fact that the information at issue is being used for a decrypting purpose is not significant from the standpoint of trade secret law. [...] It may or may not be the case that Bunner’s action violated the Digital Millennium Copyright Act (DMCA) (17 U.S.C. sect. 1201), which explicitly prohibits various efforts to circumvent "technological measures that effectively control access" to copyrighted works (id., sect. 1201 (a)(1)(E), (2)(A)). Unlike trade secret law, the DMCA does not inquire into whether technology-circumventing devices are acquired by improper means or are based on secret information, but rather considers whether the primary purpose of those devices was improper. (Ibid.; see Universal City Studios, Inc. v. Corley (2d Cir. 2001) 273 F.3d 429, 440-441.) DVD CCA s complaint did not allege a violation of the DMCA and that issue is not before us.

(slip op., concurring opinion, p 18)

What we can draw from this quote is only the same thing that I think Moreno is saying — thank goodness this wasn’t something that had to be decided here and now!

A Less Comforting Element

The opinion, however, also raises an issue that is going to come back to haunt the digital information community. The Court spends a considerable amount of time seeking to establish whether a prior restraint on (code) speech is "content based" or "content free.&quot. The distinction is important because the standards for determining the legality of such prior restraint is different, with restraint on "content based" speech requiring that a much higher standard is met.

The Court concluded that CSS, as a trade secret (assumed to have been) illegally misappropriated, allowed them to apply the less restrictive standard applied to "content free" injunctions on speech. (sorry — it’s hard to figure out where to put the term of art "content free" without appearing perjorative!) You can read the opinion to see how they got there, but there was a part of the opinion that precisely defined just how messy things have gotten in the digital realm.

The case CBS Inc. v. Davis (510 US 1315) was apparently cited by Bunner at some point in the process as a case that showed that prior restraint should not be applied. As cited in the opinion, we find:

In CBS, a federal district court issued an injunction "prohibiting CBS from airing videotape footage taken at the factory of Federal Beef Processors, Inc." (Federal) (id. at p. 1325), because the tape disclosed Federal’s "’confidential and proprietary practices and processes….’" (Id. at p. 1316.) Concluding that the injunction was an unconstitutional prior restraint, Justice Blackmun stayed its enforcement. (Id. at pp. 1317-1318.) As a single justice order, CBS is arguably not binding on this court. In any event, it is distinguishable. Justice Blackmun, in finding a prior restraint, relied on the lack of clear evidence establishing that CBS had acquired Federal s proprietary information by improper means. (Id. at p. 1318.) In contrast, we assume for purposes of this appeal that Bunner knew or had reason to know that DVD CCA s trade secrets were acquired by improper means. Moreover, unlike the trade secrets at issue here (see ante, at pp. 21-23), the videotape footage at issue in CBS appeared to address a matter of public concern — "unsanitary practices in the meat industry" (CBS, at p. 1315). (emphasis added)

(majority opinion, slip op., p. 26)

Why this lengthy quote? What if the only way to see CBS’ news report had required that you have DeCSS? Would an injunction on disclosure of DeCSS still be "content free?"

One would hope not — locking away information that is in the public interest behind an electronically erected and implemented "pay-wall" would seem to be patently offensive to our notions of liberty, but I was struck by the fact that the Court’s discussion exposes a now-classic blind spot. The code in DeCSS is more than just speech - it’s a kind of meta-speech that, by technological design, unlocks lots of other speech.

We have decided to alienate ourselves from "real speech" through technological means because of its convenience in distribution and use. I can’t "watch" a DVD without the intervention of a technological artifact (unless you mean looking at the play of light and diffraction on a shiny disk). The "speech" on the DVD is inaccessible until I turn the crank of a particular technology - and it’s going to be vitally important that the crank remain as free as the speech that it locks away, or we’re going to find all sorts of unhappy threats to our liberty.

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August 26, 2003

2003 August 26 PM [1:38 pm]

(entry last updated: 2003-08-26 17:43:19)

  • Ed Felten’s take on Bunner: Trade Secrets and Free Speech.

  • Lessig’s first take on Bunner: thoughts on Bunner. (I’m carrying the opinion with me from meeting to meeting today in the hopes of having something to add.)

  • A famed mod-chip case settled: Lik-Sang settles mod chip case out of court

    Former online retailer Lik-Sang International has settled a case brought by Sony out of court, undertaking to cease trade in any copyright circumvention devices and paying an undisclosed compensation sum.

    [...]

    However, it continues to fight similar cases against Nintendo and Microsoft, both of whom were involved in the action against the company in September of last year which won an injunction against it for selling copyright circumvention devices.

  • A provocative question: A legal fix for software flaws?

    Problems with physical products routinely yield multimillion-dollar verdicts and settlements in litigation-happy America. But software vendors are largely protected from product defect claims thanks to unusual exemptions enshrined in typical software licenses–boilerplate known in the industry as End User License Agreements (EULAs) or “shrink-wrap” licenses, so called because they’re often printed inside the shrink-wrapped box containing the product or incorporated into the software itself.

    [...] [R]epeated failures are leading some irked security experts to press for changes in software liability law to better motivate companies to fix buggy and insecure code.

    “If the laws got changed that forced software makers to be held liable–criminally, civilly, financially–for their products, we’d see a marked increase in product quality, security and stability,” said Richard Forno, an author and security consultant. “The EULA is the slickest ‘Get out of jail free card’ I can think of in recent years.”

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2003 August 26 [6:42 am]

(entry last updated: 2003-08-26 09:39:23)

  • Via Jim Flowers: Are The Internet And Government Incompatible? (you may need to scroll down a bit)

    Perhaps we were lucky that the Internet came of age in the anti-government age, under a Democratic President.

    If it came along today, it would be banned.

    The fact is that the Internet, by its nature, runs counter to all government control. It is simply a protocol for sending bits. It does not ask what those bits will be used for, or even where those bits will go.

    Anyone can use the resource. We don’t even ask for ID, nor can we track your purpose. Whether you’re a writer, an honest businessman, a drug dealer or international terrorist, the Internet itself does not ask and does not care.

    [...] The only laws concerning the Internet that are capable of enforcement are those supported, not by financial interests, not even by a majority, but by a consensus among the people, both good and bad, Republican, Democratic, Independent and Indifferent. Consensus is hard to achieve, so laws covering the Internet must touch the people as lightly as possible. Those laws that fail the tests simply become unenforceable. With enough unenforceable laws, all laws regarding the Internet become unenforceable — it’s the simple law of numbers.

    As to those governments that fail to “get it,” “it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.”

    Fair warning.

  • Some more on the Australian court finding against a couple of record companies: Penalties More Than Doubled To Over $2 Million As Full Court Upholds Part Of CDs Decision

  • Today’s Boston Globe on music and politics: Democrats getting in tune:

    Campaigns seek perfect song for their candidates [pdf]

    ”Here’s the thing,” wrote supporter Hugh Gurin, 36. ”We have to get this right.”

    It is something political operatives already know. A few well-chosen bars of music can accomplish what advertisers call ”branding,” solidifying a candidate’s image, conveying a theme. The best campaign songs are legendary, said Darrell West, professor of political science at Brown University. Lee Greenwood’s ”God Bless the USA” was Ronald Reagan’s assertion of national pride. In 1992, Fleetwood Mac’s ”Don’t Stop” was Bill Clinton’s way of saying that a new generation had entered politics.

    A dud, meanwhile, can be an embarrassing distraction. In 1996, Bob Dole had to stop using ”Soul Man” — which he had changed to ”Dole Man” — after the song’s copyright owners sent him a threatening letter.

  • Lisa Rein gets an impressive online companion: The BBC’s digitally televised revolution

    The British Broadcasting Corp., the United Kingdom’s largest broadcaster, plans to digitize its archive and let people download programs for free online, BBC Director-General Greg Dyke said Sunday.

  • A new, albeit unsustainable, business model for CD production: Auctioning Off the Past to Make a Future in Music [pdf]

    Some musicians build on the past for new albums, others bury it. David J hawked his past, piece by piece on eBay, to finance his new CD, “Estranged.”

    [...] His do-it-yourself method: clean out the garage. In 1999, he ran three auctions on eBay, one each to finance the recording, mastering and publicizing of “Estranged,” which will be released on Sept. 9.

    Everything from concert set lists to handwritten lyric sheets to guitars from throughout his career went on sale, 60 items in all. Winning bidders will be listed in the liner notes of “Estranged.”

  • In other developing music business models, we get the following: Indie labels lure Net music stores

  • Declan McCullagh: End of an era for file-sharing chic?

    Not too long ago, civil liberties groups aiming to protect peer-to-peer networks like Napster and Kazaa were happy to dispense some free legal advice to the Recording Industry Association of America.

    Instead of trying to shutter P2P networks and outlawing a blossoming form of technology, the RIAA’s lawyers should sue the specific individuals who were violating copyright law, groups such as the Electronic Frontier Foundation and Public Knowledge suggested.

    [...] With the threat of lawsuits looming, the EFF is now on the pulpit deriding heavy-handed litigation tactics and handing out how-not-to-get-sued advice on its Web site.

    A change of tune? Nope, says Wendy Seltzer, an attorney for the San Francisco-based nonprofit group. “Those quotes are half the story Fred was saying at the time,” Seltzer says. Suing individuals is “at least a more appropriate direction for their lawsuits, but it has the potential to turn all those people who are accused of direct infringement into critics of the system.”

    [...] But the civil libertarians may have got this one right. Now that the RIAA has steeled itself for the worst, the downside of suits seems surprisingly less frightening to the industry than it once did–particularly if they can cherry-pick unsympathetic defendants.

  • DeCSS in the news - is code speech?

    • The Register:

      California Supremes issue DVD crack setback

    • CNet News: DVD-copying code loses free speech shield

      But judges said that for now, property rights outranked free speech rights in this case, because DVD copy-protection technology was never meant to be public. Nor did the DeCSS code itself contribute significantly to a debate over whether DVDs should be encrypted at all, the judges said.

      “Disclosure of this highly technical information adds nothing to the public debate over the use of encryption software or the DVD industry’s efforts to limit unauthorized copying of movies on DVDs,” the court wrote. “We do not see how any speech addressing a matter of public concern is inextricably intertwined with and somehow necessitates disclosure of DVD CCA’s trade secrets.”

    • Good thing David Touretzky’s in Pennsylvania instead of California: Gallery of CSS Descramblers.

    • San Jose Mercury: DVD decryption ruling sends mixed message

    • See also the Slashdot discussion, DeCSS Loses Free Speech Shield, which includes this very effective analogy for explaining what DeCSS is and is not:

      As I explain to my non-techie friends

      To put it in simpler terms, I can copy coded/Chinese text by hand without ever knowing what it says. DeCSS is a codebook or Chinese-English dictionary. Dictionaries don”t help you copy stuff.

    • Another notable comments: All DVD piracy to stop! news at 11!

      DeCSS was written for, and mainly used for, watching legally purchased DVDs on Linux computers. Was the DVD industry ever able to come up with examples of DeCSS being used to pirate DVDs? There are probably more pirate DVDs stamped in China in one day that were EVER made with DeCSS.

      and a question: Hypocritical

      Why is it that we can post the directions for how to properly murder someone or build a bomb (In fact, this seems to be the topic of most movies made today), yet we are barred from posting DVD-copying code?

      Can a case be made that posting DVD-copying code and directions on a website makes people more likely to copy DVDs, while there is no correlation to how many people are more likely to build a bomb or murder someone after reading the directions online?

    • Here’s an excellent comment that merits its own list item, because it raises a really important distinction between tactics and the philosophical underpinnings of the debate: Good

      While I agree with just about everybody here that reverse-engineering shouldn’t be illegal, and you should be able to publish DeCSS, I just want to watch the DVD I bought legally for crying out loud, etc –

      Let’s keep the first amendment out of this, okay? DeCSS is code. It’s not free expression, it’s not an Art form. It’s simply a useful tool that let’s you watch DVDs on your linux box. It should be legal to distribute it, not because of free speech, but because you simply should be allowed to write code that let’s you watch movies.

      Rather than trying to shove the square peg of technology into the round hole of the 1st amendment, we should be addressing current technology laws. In a way, not calling shenanigans on the DMCA every chance you get implies your acceptance of it. If you fix the DeCSS problem with 1st amendment logic, you’ve fixed the DeCSS problem. But if you fix it by repealing the DMCA, you’ve fixed a whole lot of other problems as well.

    • New York Times: Court Rules That Trade Secrets Can Outweigh Free Speech [pdf]

      The import of the California Supreme Court’s decision, according to Pamela Samuelson, a law professor at the University of California at Berkeley, is that “you don’t have a First Amendment right to spill everybody’s trade secrets.”

      Yet Ms. Samuelson, who filed a supporting brief on behalf of Mr. Bunner, asserted that the real weakness of the suit was the trade secrets claim. Mr. Bunner, she noted, did not create the encryption-cracking program, he violated no contract with the DVD Copy Control Association, and by the time he posted the software on a Web site hundreds of others had done the same thing.

      “By the time Bunner reposted it, the secret was out of the bag,” Ms. Samuelson said.

      David A. Greene, executive director of the First Amendment Project, a nonprofit group, said he was encouraged by the ruling. “We’re going to get a rigorous constitutional test of this issue of where trade secrets intersect with the First Amendment,” said Mr. Greene, who represented Mr. Bunner before the state Supreme Court.

      Mr. Greene said that his group, supported by the American Civil Liberties Union, the Electronic Frontier Foundation and a couple of computer professional associations, was striving to defend a broad principle. “This case is about the right of people to publish publicly available information,” he said. “If a person finds information on the Web and posts it, he or she should not be sued by a big corporation.”

      Mary’s got a link to the opinion (FindLaw’s copy); Denise has a set of links not to be missed.

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August 25, 2003

2003 August 25 [8:14 am]

(entry last updated: 2003-08-25 16:35:53)

TPP Orientation today - posting will be sparse…..

  • Scooped! This is what I get for missing a couple of days of MIT’s student paper, The Tech;

    • RIAA Will Issue Second Subpoena For Identity of Music Distributor

      The Recording Industry Association of America will send MIT a second subpoena seeking the identity of a network user alleged to have been illegally “offering hundreds of copyrighted works to the world-at-large” from MIT’s network through the KaZaA file-sharing system, an RIAA spokesman said last night.

      This time, the RIAA will file the subpoena the way MIT has asked: through the federal district court in Boston, instead of Washington, D.C. MIT says it will comply with a subpoena issued through the Boston court.

      I had received an e-mail to this effect; I cannot tell if the MIT administration is going to explore the policy issues surrounding this case any further. However, note that there are some interesting procedural and evidentiary issues implicit in the following:

      MIT originally suspected a “young lady” living at TDC over the summer as being the computer’s owner, said an MIT official. But now, based on examination of the logs provided by TDC, MIT has decided a different individual is the computer’s owner. (see this earlier Furdlog entry)

      MIT officials say they are not sure the owner is actually the person who was allegedly infringing the RIAA members’ copyrights by distributing recordings on KaZaA.

    • An Issue of Security

      To all new students: Welcome to MIT. When you move into your new rooms and set up your computers, make sure your lawyer is on speed dial.

      [...] But this sort of problem is omnipresent, reaching far beyond the walls of MIT. Lawsuits and intimidation are short-term approaches, and KaZaA, like Napster before it, is a relatively short-term medium.

      There can be only one true solution to the widespread problem of copyright violation: a compromise that respects the rights of artists to their work and of consumers not to be raked with bloated costs.

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August 23, 2003

2003 August 22 [11:57 am]

(entry last updated: 2003-08-23 12:57:10)

Karen got back from traveling last night and, at dinner she said something that struck me as terribly insightful. I was discussing the latest SCO nonsense and she pointed out that the whole thing seems like something from one of Neil Stephenson’s science fiction - particularly the Zodiac, Big U and Snow Crash styles. I wonder if he’s written anything about this whole thing?

  • An entertaining NYTimes read on Fox v Franken: In Courtroom, Laughter at Fox and a Victory for Al Franken

    Calling the motion “wholly without merit, both factually and legally,” the judge, Denny Chin of United States District Court, said that a person would have to be “completely dense” not to realize the cover was a joke, and that trademark protection for the phrase “Fair and Balanced” was unrealistic because the words are so commonly used.

    "Completely dense" - I think that about sums it up for this case and Fox News in general.

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August 22, 2003

2003 August 22 [8:37 am]

(entry last updated: 2003-08-22 20:29:09)

  • GrepLaw comments on Blame Canada:

    File Sharing and Downloading in Canada

  • I couldn’t let this wait: Fox Blocked In Suit Against Al Franken Book

    Fox’s claim was “wholly without merit, both factually and legally.” The network had argued Franken’s book — “Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right” — could trick some consumers into believing the book is associated with Fox.

    NYTimes link: Judge Decides Franken is Fair and Balanced {pdf]

  • Now that the thunderstorms have stopped, it’s time to go home. Here are a couple of weblog entries to read:

  • Slashdot on the "Jane Doe" fighting the RIAA subpoena: Anonymous User Challenges RIAA Subpoena

  • Offtopic: I am listening to Terry Fisher declaim (on WBUR/NPR’s Here and Now) on the US Constitution and the Judeo-Christian tradition in re the current Alabama/Ten Commandments Monument decision.

    Now it’s on-topic: a roundtable on the "fair and balanced" lawsuit.

  • Larry Lessig is justifiably miffed (I had another word in mind, actually) about recent WIPO actions cited in this Washington Post article: The Quiet War Over Open-Source [pdf]. Read his comments here: the extremists in power

  • CNet News: Net music pirate faces years in prison

    The U.S. Department of Justice said Thursday that it accepted a guilty plea in a criminal copyright case involving the former leader of a Net music piracy group called the Apocalypse Crew.

    The defendant in the case, 21-year-old Mark Shumaker, faces a maximum prison sentence of five years and a maximum fine of $250,000. Shumaker helped coordinate the supply and release of albums online before they hit retail stores and ran the Apocalypse Crew’s Internet Relay Chat (IRC) channel, federal investigators charged.

    [...] Shumaker’s case, part of the long-running Operation Buccaneer federal antipiracy investigations, is believed to be the first involving criminal penalties specifically for online music trading, a Department of Justice spokeswoman said. Buccaneer has targeted many other individuals, however, and has resulted in more than 22 convictions of felony copyright infringement involving software piracy groups such as Drink or Die, prosecutors said.

  • Infoworld: SCO CEO says IBM behind open source attacks. I look forward to learning the name of Daryl McBride’s pathology. But, in the interim, consider this incredible paragraph:

    However, SCO’s public relations (PR) department has had a busy few months. McBride proudly dumped two phone-book-sized binders of press clippings on the stage during his SCO Forum keynote on Monday as proof that his company had become more relevant in the high technology industry. [emphasis added] SCO has issued 46 press releases since filing suit against IBM on March 7. Last year it issued only 29 press releases between March and August.

    "Relevant" isn’t exactly the word that comes to mind……

    Update: Slashdot’s article, SCO Says IBM is Beating Up on Them, is similarly dismissive - plus it points to Eric Raymond’s thoughts: An Open Letter to Darl McBride

    I’m in at least semi-regular communication with most of the people and organizations who are causing you problems right now. The only conspiracy among us is the common interest in preventing the open-source community from being destroyed by SCO’s greed and desperation. (And we think it’s a perfect sign of that desperation that at SCOforum you ‘proved’ your relevance by bragging about the amount of press coverage SCO generates. Last I checked, companies demonstrated relevance by showing products, not press clippings.)

    Yes, one of the parties I talk with is, in fact, IBM. And you know what? They’re smarter than you. One of the many things they understand that you do not is that in the kind of confrontation SCO and IBM are having, independent but willing allies are far better value than lackeys and sock puppets. Allies, you see, have initiative and flexibility. The time it takes a lackey to check with HQ for orders is time an ally can spend thinking up ways to make your life complicated that HQ would be too nervous to use. Go on, try to imagine an IBM lawyer approving this letter.

  • After reading this NYTimes article, F.C.C. Discloses New Rules for Telecom Industry [pdf], it’s probably worth reviewing the Reed Hundt discussions at ILAW (links to other bloggers comments). From the NYTimes article:

    The rules elaborate on a contentious F.C.C. decision six months ago that local telephone companies generally must share older equipment for voice transmission at wholesale rates but not newer technology dedicated to high-speed data.

    [...]

    The final order, a result of a Congressionally mandated review, has pleased almost no one and will certainly lead to a wave of litigation. “Every word will be challenged,” said Dana Frix, a telecommunications lawyer with Chadbourne & Parke who often represents the rivals to the Baby Bells. “My children will go to college on this stuff. This is a lawyer’s dream.”

    Infoworld’s piece: FCC phone competition rules may be finalized soon; CNet News: New broadband rules draw criticism

  • Wired News on the buying of search terms: Keywords: To Buy or Not to Buy

    But as more merchants look to snap up the same keywords, search-engine experts say they also appear to be pushing up prices.

    Based on bidding activity at the two most popular paid services — Overture (soon to be acquired by Yahoo) and Google’s AdWords program — the cost of delivering ads tied to certain search queries has skyrocketed in recent months.

    Recall that there are some legal questions regarding trademarks, etc. also in the mix.

  • Always interesting to contrast what happens here in the US with the Australians. This Slashdot article, Australian Court Doubles CD Importers’ Fines discusses fines set to stem anticompetitive practices by record companies who wanted to penalize retailers importing cheaper CDs via non-standard distribution channels. Press release: Penalties More Than Doubled to Over $2 Million as Full Court Upholds Part of CDs Decision

    The Full Federal Court has today upheld that Warner Music and Universal Music had breached section 47 of the Trade Practices Act 1974 dealing with exclusive dealing when responding to the parallel importation of music by small business.

    [...] At trial, Justice Hill held that Warner and Universal had breached the Act by threatening to refuse to supply Australian retailers who stocked parallel-imported CDs, and later refusing to supply retailers who stocked such imports. Those findings made by Justice Hill preventing Warner and Universal from refusing, or threatening to refuse supply to retailers for the reason that they source or propose to source non-infringing copies of music within their catalogue from an alternate source, were upheld by the Full Federal Court.

  • The Register on the RIAA’s Grokster ruling appeal

    Ironically, Grokster CEO Wayne Rosso told The Register last week that he has sought licences from the major labels represented by the RIAA to build a music sharing network not unlike the Apple iTunes Music Store model. Apple allows single tracks to be bought, burned and shared locally for a small, one-off fee. Rosso says the labels have refused his request.

    Rosso has asked the UK’s Office of Fair Trading (OFT) to investigate the labels’ refusal, claiming it is an example of anti-competitive behaviour on their part. He also plans to take the issue to the European Commission’s anti-trust team, he told The Register.

  • Dave Winer points to these Copyright Questions from a Blogger

  • Today’s Arlo and Janis raises a few questions about the differences between the CD and LP.

  • Kevin Heller has found a radical proposal in the Denver Post: Time to give up on copyright law? [pdf]

    So there’s hope that American copyright law will allow creators to control how their work is distributed. But any law that can be twisted the SCO way, enforced the RIAA way, extended the Disney way, or abused the Ziff-Davis way is a law that ought to be repealed. All it does is enrich lawyers and big companies, and they’d probably get along just fine without it.

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August 21, 2003

2003 August 21 PM [7:13 pm]

(entry last updated: 2003-08-21 19:58:15)

  • *Shock!* A study sponsored by Macrovision answers the question How High Is The Risk Of Home Copying To Hollywood? [also at MI2N] with the following:

    Movie studios, independent producers, music video record companies plus creators, distributors and retailers of video content collectively could be losing estimated retail revenue approaching $1 billion a year in the United States, due to lack of comprehensive application of copy protection, according to a new study sponsored by Macrovision Corporation. This level of displaced revenue would amount to nearly 5% of the $20.6 billion home video industry.

  • Kviar Music has a press release on MI2N: Brazilian Label Launches Recording CD Kiosk

    Kviar Music, Brazil’s leading online music label, presented during the Music Fair that recently took place in the northern city of Fortaleza, the first CD recording kiosk system in the country. Totally developed and patented by Kviar, the machine can record customized CDs in a matter of minutes. For that, the public can listen and choose from over 2 thousand tracks, which ones will be present in his or her CD, regardless of genre, author, album, etc. The kiosk then records a CD with only the chosen tracks, prints the cover with the track list, and prints a receipt. The whole process takes only up to 7 minutes and the resulting CD is a regular audio CD than can be listened in the car, stereo, computer, etc. Each CD can have up to 74 minutes, which amounts to more or less up to 15 regular tracks. Kviar expects to charge R$8,00 per CD, (more or less US$3,50), including the cover, media, and the copyrights and taxes due.

    [...] Today, Kviar already allows the public to listen to songs in its portal located at http://www.kviar.com, and include them in what it called “Instant CD”. This system, which uses US company Immediatek’s “NetBurn” technology, creates on-the-fly an executable with the chosen songs and CD cover. The user then inserts a blank CD in his or her CD recorder and in a matter of minutes he or she will have a regular CD which can be listened to in any CD player. Kviar is closing deals with other labels to distribute their music by this system, and now it will extend this partnerships to the CD burning kiosks as well.

    Be sure the read the technology description of Immediatek’s technologies:

    Immediatek’s groundbreaking and patent-pending NetBurn technology offers record labels, distributors, online music sources, and artists the only “one-button burn” solution which can burn an entire CD of music in only one click–directly from the Internet to the CD burner on the user’s computer.

    In doing so, NetBurn protects the copyrights of the artist by requiring either a purchase of the music through e-commerce or through a monthly membership to the Internet site offering the music.

    There’s also Netburn Secure:

    NetBurn Secure burns a two-session disc. The first session contains audio tracks which are “marked” and cannot be copied, played or ripped on a computer. The second session contains digital files, such as Windows Media(tm) DRM files, which are controlled by License Management Technology (LMT), and whcih cannot be uploaded back to the Internet. Because of the unique structure of the discs, as well as the copy control implemented, users can achieve playability on virtually every audio device (such as car and home stereos), as well as computers.

  • How long do you think this site will be available? Memepool describes it as downloading music "old skool style" - University of Colorado

    Digital Sheet Music Collection. Note that their extensive copyright information page explains the limitations as they see them.

  • Jenny Levine on Singling Out The Music Industry - comments on the MTV News article Downloads, EPs, Singles Conspiring To Kill The Album Format

  • Slashdot discusses EarthStation5 and the now defunct xMule P2P application (the SourceForge link): RIAA/MPAA vs. xMule Author, EarthStation 5

  • Lisa Bowman interviews the lead SCO counsel, Mark Heise: SCO’s big legal gun takes aim - the crux of the argument is again stated here, although it’s worth reading the whole thing to see just how convoluted a lawyer can make things when he wants to….

    This case has been characterized as an attack on the GPL.

    We never raised the GPL in this litigation. We are somewhat surprised that IBM, which has this tremendous copyright and patent portfolio, is advocating the use of the GPL since it could have an impact on them. If, for example, their copyrighted materials are finding their way into the GPL, does that suddenly strip them of their rights? We don’t think the GPL applies. We believe it is pre-empted by the federal copyright law.

    The Free Software Foundation apparently disagrees. If you look at the terms of the GPL and the terms of copyright law, copyright law governs. It is the exclusive authority regarding the use, distribution, etc., of copyrighted material. In the GPL, (there is a section that) specifically says it applies only to the use and distribution. In other words, the exact same topics that are covered exclusively by the Copyright Act are covered by the GPL. Section 301 of the Copyright Act says the Copyright Act pre-empts any claims that are governed regarding use, distribution and copying. We believe that although the GPL is being tossed into the fray, it is pre-empted by federal copyright law.

  • NPD Group seem to think the answer to Are swappers scared of the RIAA? is "Yes!"

    The report, released Thursday, said online file swapping started dropping in May, shortly after the Recording Industry Association of America (RIAA) publicly hinted that it may go after individual file swappers. The number of households acquiring music fell from a high of 14.5 million in April to 12.7 million in May and 10.4 million in June, according to NPD.

    Of course, school let out, too.

  • CNet updates this article: File swapper fights RIAA subpoena

    “This is more invasive than someone having secret access to the library books you check out or the videos you rent,” Glenn Peterson, one of the attorneys, said in a statement. “The recent efforts of the music industry to root out piracy have addressed a uniquely contemporary problem with Draconian methods–good old-fashioned intimidation combined with access to personal information that would make George Orwell blush.”

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2003 August 21 AM [7:08 am]

(entry last updated: 2003-08-21 08:16:36)

  • PressePapiers posts a followup to Jay Currie’s Blame Canada: Private Copying

    Well, without getting into too much details, while downloading music might be covered by the Tariff, as it does not specify any source or support requirements for the sound recording, uploading without a proper licence is not.

    The actual provision in the Copyright Act is

    Copying for Private Use

    80. (1) Subject to subsection (2), the act of reproducing all or any substantial part of

    (a) a musical work embodied in a sound recording,

    (b) a performer’s performance of a musical work embodied in a sound recording, or

    (c) a sound recording in which a musical work, or a performer’s performance of a musical work, is embodied onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer’s performance or the sound recording.

    About all I can add is that, while it may not be expressly legal, I think Jay’s point (we’ve had a couple e-mail exchanges since) is that the legal environment in Canada is sufficiently distinct that the RIAA’s US strategies may not be so easy to implement in Canada. But Canada’s culture of copying is definitely different — how different remains to be tested by the RIAA, I suspect.

  • Mark Mulligan shows that schizophrenia is not limited to the music industry: Wanting it both ways again (this time it’s MSN)

    MSN have just launched their answer to Apple’s i-Tunes service in conjunction with OD2. Yet whilst MSN try to place them selves at the vanguard of Europe’s legitimate digital music market, they seem to be promoting MSN messenger on its music file sharing attributes. With a far from subtle ‘nudge nudge’ and ‘wink wink’ [Ed. note: link added] to the would be file sharers, MSN advertises the messenger on it’s [sic] own site as:

    “Share files or music…, you’ve got to download MSN messenger”

  • Earthstation5 has raised the ante with their latest press release [via BoingBoing]

    Earth Station 5 Declares War Against The Motion Picture Association of America

    JENIN, West Bank, Aug. 19 /PRNewswire/ — In response to the email

    received today from the Motion Picture Association of America (MPAA) to

    Earthstation 5 for copyright violations for streaming FIRST RUN movies over

    the internet for FREE, this is our official response!

    Earthstation 5 is at war with the Motion Picture Association of America

    (MPAA) and the Record Association of America (RIAA), and to make our point

    very clear that their governing laws and policys have absolutely no meaning to

    us here in Palestine, we will continue to add even more movies for FREE.

    See also this James Lileks commentary: Why the Record Industry Doesn’t Stand a Chance

    But there will never be enough arrests or convictions to stop the hard-core downloaders; there will never be a technological fix that someone won’t find a way around. Copyright violations will cease when enough people decide they’re morally wrong, when the old explanation — “But Ma, even senators do it!” — doesn’t feel right. When the Internet is governed by reason, decency and conscience.

    Never, in other words. See you in Jenin.

  • This guy shouldn’t be advertising this fact - the RIAA is bound to try to do something about this - from The Onion: I Have An iPod - In My Mind

    Thirty gigabytes? So what? I know 7,500 songs, maybe more. Some songs, I forget I even have until they come around on shuffle. Why, just the other day, my mind started playing David Naughton’s “Makin’ It,” a song I hadn’t heard in years. And the sound quality was great!

    Easy downloads? You don’t know the meaning of the word “easy.” And I don’t have to know the meaning of the word “download.” You may get MP3s off the Internet, you smug scenester, but I can get music off the television, the radio, even a passing ice-cream truck. If I don’t want to waste the memory space on a high-fidelity copy, I just don’t pay very close attention. Now, that’s what I call convenience.

    All I have to do is hear a song once or twice, and it’s stored forever. I can call it up any time I want. Beach Boys. Beatles. How about some Bach? Or some Billy Joel? Sing me a song, piano man of my mind! And those are just the artists whose names begin with “B.”

    I can browse by artist, album, song, or music genre. Boom! I’m doing it right now! The “repeat” feature? Heck, songs from my iPod don’t ever have to end. I swear, I had “Music Box Dancer” going through my head for three days straight last week.

  • New ruling protects ISPs, Web operators

    Internet service providers and Web site operators are breathing a collective sigh of relief following a court decision that preserves a key aspect of their immunity under the Communications Decency Act.

    [...] Section 230 of the CDA carved out significant immunity for “interactive computer services” for the behavior of their customers. But the district court ruled that dating site Matchmaker and its operator, Metrosplash–acquired by Lycos in June 2000–could be held liable for information a user posted because of the interactive nature of the questionnaire that generated the posting.

    The court of appeals disagreed.

  • Bruce Perens has tracked down the provenance of the second code snippet shown at the SCO Forum as evidence of copyright infringement in the Linux kernel - SCO disagrees with his findings, of course. Linux advocate: More SCO evidence flawed

    The SCO Group is zero for two in its efforts to prove that its Unix software was illegally copied into the Linux operating system, according to Linux advocate Bruce Perens, who on Wednesday said he traced a second example of SCO’s disputed code and that it was lawfully included in Linux.

    [...] But these first two examples can be traced to the open source BSD (Berkeley Software Distribution) Unix, and not to SCO’s AT&T Unix source code, and both are legitimately included in Linux, Perens said.

    “I think that these are probably the best examples that SCO has to show and they’re awful,” said Perens. “They would not stand up for a day in court.”

  • Media convergence - the MP3 player/cellphone: Brrring! A Musical Reverie Yields to Cellphone Chatter

  • Also in today’s Boston Globe, an article on the rise in used book sales via the internet, Turning over an old leaf [pdf], includes a call for the end of the first sale doctrine:

    “However much money is being made,” says Vincent McCaffrey, owner of the Avenue Victor Hugo used-book store in the Back Bay, “I know that because of the Internet more people are buying used books right now than ever before.”

    Amazon.com jumped into the used-book market last year by adding a “new or used” option to every new book listed on its site, which leads a customer to a list of small or middle-size booksellers offering the book at a deep discount to the new-book price. Since then, both Barnes & Noble and Borders have offered links to used-book sources. Mainstream publishers and the Authors Guild, a writers group, have raised a fuss, to no avail.

    “While we are glad that used-book sales are creating additional revenue for some of our booksellers,” says Random House spokesman Stuart Appelbaum, “it’s regrettable that neither authors nor publishers are benefiting financially.”

    This was a topic about a year ago, but I can only point you to the NYTimes abstracts now - see this one, for example.

    Note that considering the "used" option is also a viable strategy for those of us boycotting CDs from RIAA-member record companies — so far.

  • From today’s Boston Globe Business Roundup, we get this entry:

    Buffett loses appeal on disclosures

    Warren Buffett lost an appeal before the Securities and Exchange Commission to delay disclosure of certain stock holdings, part of an effort by the billionaire to prevent copycat investing. As chairman of Berkshire Hathaway Inc., Buffett has argued that his short-term trading strategies qualify as intellectual property and warrant an SEC filing exemption. Publication of Berkshire’s holdings, Buffett says, leads to price movements that drive up his investment costs. The SEC acknowledged that traders attempt to mimic Buffett’s selections. At the same time, the agency said Buffett failed to show that complying with disclosure rules would cause Berkshire competitive harm. The agency requires individuals and companies that manage $100 million or more of stock to disclose their holdings at the end of each quarter in a filing called Form 13F. An SEC spokesman declined to comment. (Bloomberg)

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August 20, 2003

2003 August 20 PM [2:37 pm]

(entry last updated: 2003-08-20 17:40:15)

  • Elvis lives–on the Web

    Digital music service MusicNow and music label BMG on Tuesday announced a digital music channel showcasing more than 2,000 Elvis Presley songs.

    Dubbed “Elvis 2nd to None,” the channel features such songs as “Can’t Help Falling In Love,” “My Way” and “Suspicious Minds,” as well as albums ranging from “Elvis is Back!” to the gospel collection “How Great Thou Art.” The launch is coinciding with a new album, also called “Elvis 2nd to None,” due to be released Oct. 7. The album will contain a recently discovered Presley track, “I’m a Roustabout.”

    [...] MusicNow said subscribers will be able to stream, download and burn Elvis hits in the Windows Media 9 Series format.

  • And so it starts - the push for the next music format with a rerelease of a top stars catalog: Classic Dylan Titles Get Sonic Upgrade

    With the Sept. 16 release of 15 classic Bob Dylan albums on the hybrid Super Audio CD format, Columbia/Legacy is initiating an ambitious sonic upgrade of the icon’s CD catalog. Five albums in the series are also presented, for the first time, in 5.1-channel surround sound.

    Like many current SACD titles, the Dylan series comprises dual-layer discs featuring a high-density layer carrying high-resolution, multichannel surround sound, as well as a two-channel stereo SACD version and a standard 16-bit, 44.1kHz layer. While an SACD player is required for playback of the high-resolution, multichannel layer, hybrid discs are forward- and backward-compatible, allowing playback on standard CD players.

    ?Rippable?

  • From Billboard: UMG, EMI Press On With Suit Vs. Bertelsmann

    Universal Music Group, EMI and a group of music publishers filed a motion yesterday (Aug. 18) in U.S. District Court in New York to deny Bertelsmann’s request that the copyright-infringement suits be dismissed.

    The move is a response to Bertelsmann’s motion filed last month, in which it claimed that U.S. copyright law “does not permit recovery from a third-party lender for damages the plaintiffs failed to recover from Napster.” Bertelsmann also said its actions “were aimed at benefiting the entire music industry,” as its loan to Napster was “specifically earmarked” for a service “in which all the major record labels and music publishers were invited to participate.”

  • A longstanding negotiation is coming to a close? Germany - Agreement On Royalties For DVD Writers

    The amount of payment on DVD writers and combined CD and DVD writers which can be installed in, or connected to, a PC, and which can be used to write DVD-R/RW, DVD+R/RW and/or DVD-RAM system disks, has been agreed at EUR 9.21 as a standard royalty for all rights holders, and will take effect retroactively from 1.1.2003.

  • More on the Gartner-Berkman study: GartnerG2 Says Digital Media Publishers Must Have Portable Digital Rights Management Standards Or They Risk Alienating Consumers

    The Berkman Center for Internet & Society at Harvard Law School and GartnerG2 are hosting a one-day seminar to fully explore ways to maintain the equilibrium between technology providers, copyright holders and creators, media companies, and consumers. The event, titled “Digital Media in Cyberspace: The Legislation and its Business Effects,” [ed.note: an invitation only event] will take place September 18 at the Ames Courtroom at Harvard Law School in Cambridge, Mass.

    The project: Copyright and Digital Media in a Post-Napster World

  • From MI2N: RIAA Response To Senator Coleman’s File-Sharing Inquiry

  • SFGate: Code presented in Linux dispute

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2003 August 20 AM [8:07 am]

(entry last updated: 2003-08-20 14:13:04)

Making progress on switching over to WordPress - now to figure out Apache’s mod_rewrite so the old links will point to the right database entries.

  • According to Cory Doctorow, DontBuyMusic.com is back.

  • Search engines making money by "selling" words may be subjected to trademark infringement suits: Trademarks cast shadow on paid search

    So far, the issue of using trademarked terms in keyword-search advertising has not been tested in court. Danny Sullivan, moderator of the panel and editor of industry newsletter Search Engine Watch, said that the most closely related case to date involved Playboy, which sued Excite and Netscape Communications over the practice of selling banner ads to third parties keyed to its trademark. The court said that companies selling products and services related to Playboy could buy the term.

    An earlier case decided in 1997 went the opposite way, with the judge barring an online publisher of sexually explicit material from inserting the words “playboy” and “playmate” into a section of its site that is seen only by search engines.

    Sullivan said Google is setting a dangerous precedent by granting eBay exclusive use of terms related to its trademarks because “anything can be a trademark.”

  • CNet profiles Sterling Ball, a perennial posterchild for the open source industry - who took his company "Microsoft free" and lived to tell the tale: Rockin’ on without Microsoft

  • Offtopic - Tufte on Powerpoint: PowerPoint Is Evil

  • "Chilling effects" Department: Music Parody Site Pulls the Plug

    Nothing can deflate a joke faster than the threat of a lawsuit.

    In the case of parody website DontBuyMusic.com, a cease-and-desist notice forced the site to go offline last Friday.

    The website, created by the online community Macteens, spoofed the BuyMusic.com website by using the same format as the original site but rewriting the text and redirecting all clicks to the Apple iTunes website. ITunes and BuyMusic.com are both online paid music services.

    DontBuyMusic.com last week brought attention to the marked similarities between TV commercials for iTunes and BuyMusic (see the ads here and here).

  • As I’m sure was the intention, Vague Limits Vex Music Traders

    The RIAA’s statement to Sen. Norm Coleman (R-Minn.), chairman of the Senate Permanent Subcommittee on Investigations, appeared to depart from previous statements in subpoenas against more than 900 file sharers, who appeared to be randomly named. The defendants included college students, unsuspecting parents, Internet service providers and even grandparents.

    “I don’t think I’ll download anymore since we don’t really know what they (RIAA) are going to do,” Craig said.

    It seems as if other file traders are in the same predicament. Because the RIAA has refused to quantify what constitutes a “substantial” amount of file sharing, file sharers are left to wonder whether they are vulnerable to litigation.

  • Media groups appeal P2P ruling

    Record labels and movie studios said Tuesday that they have appealed an April federal court ruling that held for the first time that some file-swapping software was legal.

    That ruling, made by a Los Angeles federal court judge, Stephen Wilson, came as a sharp blow to copyright holders’ strategy of suing peer-to-peer network operators and software developers in order to curb the explosive growth of file trading. Beginning with a ruling against Napster, all court rulings had been in favor of the record companies and movie studios.

    “(Wilson’s decision) was wrong,” Recording Industry Association of America (RIAA) President Cary Sherman said in a statement Tuesday. “These are businesses that were built for the exclusive reason of illegally exchanging copyrighted works, and they make money hand over fist from it. The Court of Appeals should hold them accountable.”

    "hand over fist" - really? What about the businesses that make tape recorders, video recorders and other products with "substantial noninfringing uses?" So guns (rather than people) really do kill people?

    Inforworld: Recording, movie industries appeal file-trading ruling

  • Apparently the SCO presentation left them open to at least some scrutiny: see this Groklaw entry, whose conclusions were picked up in today’s Boston Globe republishing of an LATimes article - SCO undercuts its Linux case. Bruce Perens’ writeup even includes the much discussed photos of the slides posted. The Slashdot discussion: “Stolen” SCO Linux Code Snippets Leaked; a related followup: SCO Prepares To Sue Linux End Users

    Inforworld: SCO’s proof bogus, Linux advocate says

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August 19, 2003

2003 August 19 AM [7:46 am]

(entry last updated: 2003-08-19 09:19:15)

  • Jenny Levine on fair use and librarians: Librarians Fighting for Your Fair Use

  • Benny Evangelista on the Rolling Stones entering the digital distribution business: Rolling Stones license songs for file sharing:

    Exclusive deal could prompt other artists to follow example. If, as the article suggests, Listen.com was unable to land the Stones after two years of trying, one has to wonder what were the terms that got Mick Jagger to sign on the dotted line. I look forward to learning more about the economics of this deal. The LATimes article (via Denise Howell): Fans Can Get What They Want [pdf]

  • How did this writer get onto the TechCentralStation rolls? A TCS article on P2P file sharing by one Jay Currie, pointing out (approvingly!) that the Canadian levy on recordable media has essentially legalized filesharing in Canada and, through the Internet, the world: Blame Canada

    A desperate American recording industry is waging a fierce fight against digital copyright infringement seemingly oblivious to the fact that, for practical purposes, it lost the digital music sharing fight over five years ago. In Canada.

    [...] As the RIAA wages its increasingly desperate campaign of litigation in terrorum to try to take down the largest American file sharers on the various P2P networks, it seems to be utterly unaware of the radically different status of private copying in Canada.

    This is a fatal oversight, because P2P networks are international. While the Digital Millennium Copyright Act may make it illegal to share copyright material in America, the Canadian Copyright Act expressly allows exactly the sort of copying which is at the base of the P2P revolution.

    [...] The Canada Hole in the RIAA’s strategic thinking is not likely to close. While Canadians are not very keen about seeing the copyright levy extended to other media or increased, there is not much political traction in the issue. There is no political interest at all in revisiting the Copyright Act. Any lobbying attempt by the RIAA to change the copyright rules in Canada would be met with a howl of anger from nationalist Canadians who are not willing to further reduce Canada’s sovereignty. (These folks are still trying to get over NAFTA.)

  • The record labels announce they’re only after those who are really pregnant vs. a little pregnant? This is an odd bit of positioning: Labels: We’re after big swappers

    The recording industry is insisting its antipiracy campaign will refrain from taking legal action against small-time song swappers and will focus only on those copying “substantial” amounts of music via the Internet.

  • More on making PowerPoint (still, IMHO, the worst designed presentation package - if not application program - ever) your friend: Learning to Love PowerPoint

  • Paul Newman (yes, that Paul Newman!) speaks on the NYTimes Op-Ed page on the Franken/O’Reilly/Fox News "fair and Balanced" brouhaha: Paul Newman Is Still HUD [pdf]

  • Slashdot has a rather comprehensive article on the latest in SCO news, including a response by the Free Software Foundatation to the laughable claim that that GPL somehow violates US copyright law because it doesn’t restrict copying: FSF Reply To GPL Claims, Conference Sponsors Back Off?. As Eben Moglen puts it:

    This argument is frivolous, by which I mean that it would be a violation of professional obligation for Mr Heise or any other lawyer to submit it to a court. If it were true, no copyright license could permit the licensee to make multiple copies of the licensed program. That would make not just the GPL “illegal.” Mr Heise’s supposed theory would also invalidate the BSD, Apache, AFL, OSL, MIT/X11, and all other free software licenses. It would invalidate the Microsoft Shared Source license. It would also eliminate Microsoft’s method for the distribution of the Windows operating system, which is pre-loaded by hard drive manufacturers onto disk drives they deliver by the hundreds of thousands to PC manufacturers. The licenses under which the disk drive and PC manufacturers make multiple copies of Microsoft’s OS would also, according to Mr Heise, violate the law. Redmond will be surprised.

    [...] The release of this astounding statement is actually good news for developers and users of free software. It shows that SCO has no defense whatever against the GPL; already it has resorted to nonsense to give investors the impression that it can evade the inevitable day of reckoning. Far from marking the beginning of a significant threat to the vitality of the GPL, the day SCO scuttled sense altogether confirmed the strength of the GPL, and its importance in protecting freedom.

    See also The Register write-up: The GPL will win, claims law prof. Infoworld/IDG tries to tell it from the SCO side: SCO makes legal case to its resellers; as does Lisa Bowman: SCO puts disputed code in the spotlight. Prof Moglen also speaks on CNet: Putting the GPL on trial

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August 18, 2003

2003 August 18 AM [8:20 am]

(entry last updated: 2003-08-18 11:22:58)

  • Some IT industry reaction to SCO (eWeek’s SCO coverage): HP, Intel Withdraw Support for SCO Forum; note also that Darl McBride seems to have lost it completely - SCO Turns Up the Heat on Linux Users includes the following threat:

    The SCO Group on Sunday said that it has compiled a list of all the large companies with numerous servers running Linux and warned that it would not hesitate to drag them into court if they refused to pay for UnixWare licenses.

    [...]

    “In a nutshell, this litigation is essentially about the GNU General Public License and all it stands for. That license has not yet been challenged or tested in court, but it is now going to be. We are also firmly and aggressively challenging the notion that Linux is a free operating system,” McBride said.

  • Some more from the NYTimes on DVD piracy, pointing at the industry’s favorite bogeyman: Helped by Technology, Piracy of DVD’s Runs Rampant in China [pdf]

    China’s galloping market economy has long run rough and ready over copyrights. But industry executives and analysts say that in recent years piracy has become even more rampant, aided by the spread of the Internet, and computer technology that allow technology-savvy bootleggers to outrun the government’s periodic crackdowns.

    [...] One reason for the ubiquity of pirated films (and music) is price. Typically, pirated discs sell for a fraction of the price of legitimate discs, while the range of choice among the bootleg versions is much larger.

    A regular customer in the pirate stores, Fu Jun, a 24-year-old accountant with a taste for science-fiction films, explained that for him and many young Chinese, attending a cinema is a rarer, more expensive experience than buying pirated films and watching them at home with friends.

    [...] Much of the work of providing Chinese subtitles is done by college students in Guangzhou and elsewhere, who are grateful for a few extra dollars. Cherry Ma said she had done subtitling for a couple of years.

    [...] She often took the work home, receiving about $12 for a film, though more experienced translators received up to $30. Films can earn student translators a few dozen to a couple of hundred dollars, depending on the subject matter and on whether they have a script to work from or must work solely from a video copy.

    Once the subtitles are complete, the discs are then churned out in the millions in plants hidden in manufacturing cities in southern China, like Dongguan and Shantou. And then a vast web of street hawkers and small shops sells them in virtually every corner of China.

    [...] Ms. Grutka of the Motion Picture Association estimated that last year film piracy in the Asia-Pacific region cost filmmakers $640 million in foregone sales, with China the top violator, accounting for $168 million of that. (The International Federation of the Phonographic Industry recently estimated that more than 90 percent of all music CD’s sold in China last year were pirated copies, costing the business $530 million in sales.)

  • Farhad Manjoo on SCO in Salon: Fear, uncertainty and Linux. To my disappointment, the article is largely about the inability to avoid the FUD that goes along with the SCO suit, notwithstanding the quote below:

    News that SCO has made some money selling rights to its code failed to convince many of its critics that the company has a valid case against Linux. “I think it’s amusing that they were willing to put out a press release for one licensee, and on top of that it’s a licensee who’s ashamed of doing business with SCO,” says Don Marti, the editor of Linux Journal.

  • The "tip jar" model in action: Open source for a song

  • The clear hit story of the morning seems to be the announcement that the Rolling Stones have decided to go online - a validation of the emerging digital distribution business models (because Mick Jagger is considered one of the shrewdest businessmen in the industry) or a capitulation in the face of continuing file sharing and/or industry pressure?

    • CNet News: Stones: Get yer ya-ya’s out online

    • Boston Globe: Stones open vaults to Net downloads [pdf]

      In granting the digital rights to their songs, the Rolling Stones fall out of a shrinking pool of prominent, well-established pop and rock stars who have refused to release the bulk of their catalog to music services like Rhapsody and iTunes Music Store.

      While musicians like Bruce Springsteen, Bob Dylan, Nirvana, and the Beach Boys have made their songs digitally available in the past year, Metallica, the Beatles, and the Beastie Boys have largely held out. Some, like Madonna, have made only complete albums, not singles, available for download.

      [...] But the entrance of the Stones, whose frontman Mick Jagger is known as one of the shrewdest businessmen in rock ‘n’ roll, may allay some fears that artists can’t make money through digital deals.

    • NYTimes: Rolling Stones Will Download Before They Get (Too) Old [pdf]
  • Related note: Mark Mulligan has a guess at to why OD2 might be the European leader in this tack: OD2 Catch the I-tunes Wave

    One interesting part of this development is what it means to Microsoft. Microsoft have quietly spent the last couple of years consolidating a market leading position in the digital music space, from a whole range of perspectives, but most notably DRM and the Media Player. Microsoft seems to have convinced most record labels that it is a) here to stay and can therefore be part of long term label plans, b) its technology is robust and reliable and c) it can be trusted with protecting content. OD2 are the only European DSP who have secured comprehensive major label licenses and it is no coincidence that their services are built around Microsoft technology. With Real networks increasingly focussing on developing their content businesses, Windows Media Player seems to have gained more ground, both in terms of installed base, but also as playback format of choice for many content providers. The one question mark this all raises for Microsoft though, is where the line between market leading and market dominance is seen to be by Mario Monti and his colleagues at the European Commission.

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August 17, 2003

2003 August 17 AM [11:29 am]

(entry last updated: 2003-08-17 15:18:56)

Just ran the bandwidth test - Verizon DSL to an Apple Airport Extreme to my laptop - 618kbps vs. the 49kbps I got in my office yesterday connected directly to the MIT network on what has to be at least a 10Base-T (if not 100 Base-T) connection! So, either there’s something wrong with my office machine (possible, but other machines in the area get the same results), the building network or MIT as a whole…..

  • Ernie’s calling for action on the P2P Logjam [via Matt]

  • It’s Back. But Can the New Napster Survive? - how far can brand name recognition take you?

  • While some of the NYTimes articles are troubling, this one’s just funny to me: David Byrne’s Alternate PowerPoint Universe

  • Today’s NYTimes has a number of interesting, yet troubling pieces:

    • First, a look at interactive porn on DVD: The Fantasy of Interactive Porn Becomes a Reality [pdf] - an industry that has always been in the vanguard of digital entertainment technologies.

    • Then, we have video and DVDs as art form: To Replace Paint and Page, Artists Try Pixel Power [pdf] - region encoding, anyone?

    • Finally, the video revolution in art has led to the Napsterization of it as well: When Fans of Pricey Video Art Can Get It Free [pdf]

      Not so long ago, the idea that video could be a medium for artistic expression was radical fringe; today, as Mr. Barney’s success shows, it has become conventional cultural wisdom. And so, increasingly, is the idea that video, along with film, animation, and slide-based work, can be sold in the same exclusive manner as painting and sculpture. Through the Barbara Gladstone Gallery, Mr. Barney sold each “Cremaster” film in a limited edition of 10, numbered and encased in table-size vitrines. These pieces have since sold at auction for as much as $387,500. Other emerging stars like Pipilotti Rist, the Swiss installation artist, or Pierre Huyghe, the French recipient of the 2002 Hugo Boss Award, also now command five- and six-figure prices for their video work.

      But while artists and dealers are limiting the supply of videos, and placing them in the private homes of wealthy patrons, a new breed of collector has staged a quiet revolt. These aren’t the people who keep auction prices afloat, or whose lavish support turns struggling newcomers into art-world celebrities. Instead, these are journalists, gallery staffers, professors and art students who trade bootleg copies of the coveted videos - just as Napster users did with MP3 files. Because digital technology makes these bootlegs so easy to duplicate and distribute, and because they are so close to the “original” editions sold in galleries, they pose an intriguing challenge to the authenticity on which art’s value is traditionally based.

      [...] Even if it’s for love and not money, though, copying and distributing work without the artist’s permission is against the law. “Whether it is video or a painting, the principle is the same: artists own and control the copyright to their work,” explains Dr. Theodore Feder, president of the Artists Rights Society, which manages and monitors copyrights for artists. None of these underground traders have been prosecuted - yet - but the music industry’s recent legal pursuit of online file swappers prompts most traders to keep a low profile.

      Nevertheless, Chris Hughes, a 25-year-old artist and self-taught video art expert, has put his entire catalog online, at www.freehomepages.com/crhughes/. With 1,500 works, representing early pioneers like Vito Acconci and Yoko Ono as well as current stars like Mr. Huyghe, Douglas Gordon and Gillian Wearing, the breadth of Mr. Hughes’s collection rivals those of many museums. The difference, however, is that he got almost all of it through unsanctioned trading.

      [...] But some critics - even some video artists themselves - have argued that such a business model, useful in the sale of prints, cast sculptures and photography, is meaningless for video. “For videos, editions are fake,” says Pierre Huyghe, in a comment seemingly designed to alarm his dealer. “When Rodin could only cast three sculptures of a nude before the mold lost its sharpness, it made sense. But all my works are on my hard drive, in ones and zeros.” His dealer, Marian Goodman, has nonetheless sold certified copies of Mr. Huyghe’s videos for prices estimated in the high five figures. Artists have the same right as anyone else to make a living, she points out, and limited editions represent a “logical, established tradition” which makes that possible.

      [...]

      Loss of control can also yield fortuitous results, however, by allowing video artists to experiment with one another’s work in much the same way that musicians sample and remix one another’s songs. (Because the experiments are artistic projects in their own right, they may not violate copyright law.) In an editing tour de force, the Swiss artist Christian Marclay combined over 600 sound and film clips from over a hundred classic movies to create an intense, 15-minute musical composition, synchronized over four 10-foot screens. In preparing the work, which was commissioned by SFMOMA and the Grand Museum of Luxembourg, and exhibited in New York at the Paula Cooper Gallery, Mr. Marclay didn’t bother to pursue the rights to any of those films. Instead he pulled freely and without permission from whatever movie tapes or DVD’s he could lay his hands on.

      And a young Baltimore video artist, Jon Routson, whose work explores bootlegging itself, has tackled Matthew Barney’s work head-on. In April at New York’s Team Gallery, Mr. Routson showed his “made for TV” version of “Cremaster 4.” He cut a grainy VHS bootleg of Mr. Barney’s 45-minute film down to 22 minutes, dropped in actual commercials, compressed the end credits and even floated ABC’s logo in the lower corner of the screen. The result: a hilarious, smart, and brazen work, which drew critical praise and which may be a sign of things to come.

    Why troubling? The art world, as it embraces digital technologies, seems not to have given any more thought to the implications of digital delivery than any other industries have. And each successive industry that goes into these technologies without thinking through the implications is going to add their voices to the chorus of the RIAA’s and MPAA’s songs of woe.

  • (Giving Wordpress a test run, but that means a test post there didn’t make it here)

    CNet reports on some real pirates: Studios help thwart DVD piracy ring

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August 16, 2003

2003 August 16 Am [10:08 am]

(entry last updated: 2003-08-16 10:42:34)

Got some work to do - *sigh*. Anyway, I just ran the CNet Bandwidth Meter test here and *something’s* not right - I come in at 49 kps - between a 56k modem and a 33.6k modem; I will have to start up the home network tonight and see how well things work via Verizon DSL over an AirPort Extreme - the way things feel here, I’m sure the home net is going to win. The real question is whether this is a problem with the local subnet or is this an MIT-wide (or larger) problem?

  • A look at the implications of the Eolas decision in particular, and software patents in general: Will browser verdict snare others?

    Eolas originally filed suit against Microsoft in 1999, alleging that the Redmond, Wash.-based software giant infringed on its patents when enabling the Internet Explorer Web browser to use plug-ins and applets. A federal court in Chicago found that IE violated Eolas’ intellectual-property rights.

    [...] Since applets and plug-ins are also a key feature of other Web browsers, the Eolas decision could affect Microsoft’s competitors in the browser market, such as Oslo, Norway-based Opera Software and bands of volunteer developers contributing to open-source groups like Mozilla.org and KDE (K Desktop Environment).

    [...]

    The threat of litigation prompted an immediate reaction from KDE developers.

    “Since KHTML is open-source software (and) it is not possible for us to license patents in exchange for money, KDE does not have a way to recoup such costs from its users,” wrote Waldo Bastian and David Faure in an e-mail exchange.

    “If this would be demanded from KDE, the only course of action that we can take is to remove the patented functionality from KHTML,” the developers continued. “That would make a sad example of how software patents are harming innovation, competition and standards compliance in the Internet age.”

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August 15, 2003

Another bit of foolishness [8:10 pm]

seriously, what did it do?

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Test entry [7:57 pm]

What can I say? This is a test of this setup - I’m curious to see how well that this is going to work. My standard is to post with bracketing LI and P tags, as well as blockquote. So let’s try it (even if the MIT network is still tragically slow….

  • The more real side of piracy: Studios help thwart DVD piracy ring:

    The international trade group worked with Malaysia’s Ministry of Domestic Trade and Consumer Affairs (MDTCA) to organize raids that led to the arrests of nine people, according to the MPA. The people arrested allegedly ran an illegal Web mail-order ring for pirated movies. One targeted site, DVDExpress2u, sold new-release DVD films such as “Confidence” or “2 Fast 2 Furious” for about $12.

    Let’s pretend that there was another paragraph in the quote

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