September 11, 2003

Some close of the day notes…. [5:11 pm]

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EU Copyright Directive Report [11:20 am]

beSpacific points to a new report from the foundation for information policy research - Implementing the European Union Copyright Directive (Press release). With all the lawsuit activity, I missed this entirely.

Here’s the ToC:

  • Introduction

    • Background

    • Problems in the United States

    • Immediate public policy objectives

    • Wider public policy objectives

    • The Copyright Directive

    • Options for implementation

    • Summary of implementations

  • Country reports

    • Austria

    • Belgium

This excerpt from Introduction alone suggests that there’s lots to gain from giving the whole 128 page document a read:

Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society has proven more contentious than its drafters foresaw. This EU Copyright Directive (EUCD), as it is commonly known, allowed only 19 months for implementation by Member States. But controversy in many of the fifteen States meant that only Denmark and Greece met this deadline.

Given the experience in the United States with a similar piece of legislation passed in 1998, this may be less surprising than it seems. The EUCD and the US Digital Millennium Copyright Act (DMCA) both give new protection to “technological measures:” systems that restrict the use of literary and other works in digital form based on instructions from their owners. Even legitimate users of such works are forbidden from circumventing such measures. Tools that facilitate circumvention are also banned. This has led to problems in the US for innovators, researchers, the press, and the public at large.

This guide describes the debate that has occurred within each of the EU states during this process of implementation. It also describes the options that are available in implementation, and how these options have been exercised across the EU. Our aim is to provide information to government and civil society bodies in the countries that will be joining the EU during 2004, and hence who must also transpose the Directive into national law as part of that process. These organisations will then be in a better position to represent the views of copyright users in the debate over transposition, in order to ensure a proper balance between the rights of rightsholders and users.

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Another trademark suit! [9:23 am]

Over something even stupider - the latest David Spade vehicle Dickie Roberts. See this Slate article: Can Wham-O Sue Over Dickie Roberts?

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Ernest Miller on indirect copyright liability [9:05 am]

See this LawMeme posting: Sue Kazaa Not Consumers? - with good links for those of us who can’t get at the WSJ online article that stimulated the question.

Certainly this Wired News article provides fodder for this position: Rude Awakening for File Sharers

“My mom paid $29.95 for Kazaa and assumed she was using a legitimate service,” said Marilyn Rodell, whose mother is being sued. “How was she supposed to know the difference between Kazaa and something like Pressplay where you pay $9.95 a month?”

[...] “My mother has been painfully law-abiding all her life, and is beyond horrified that she became a criminal simply by subscribing to a service that appeared to promise her unlimited access to music, movies and books,” Rodell said.

“Kazaa has a very pretty, very professional-looking Web page. I paid them a fee and assumed it was a legitimate way to buy music,” said Karyn Columbine, a Manhattan resident who insists she was “shocked and scared” when she discovered that the fee she paid to Kazaa didn’t cover legal music downloads.

Update: Mary Hodder’s got a link to the WSJ editorial text

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Etienne’s Thoughts on Canadian RIAA Exposure [8:59 am]

Pressepapiers.net has posted his thoughts on the differences in the US and Canadian legal regimes as they effect P2P litigation: Murky canadian laws. He’s also been tracking the recent VoIP discussions pretty closely.

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A pic from SFGate’s Day In Pictures [8:46 am]

The caption is a hoot, but the picture alone is worth studying closely!

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The view from SFGate [8:36 am]

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Audible Magic - P2P Spyware Development [8:30 am]

CNet describes the development of Audible Magic’s collaboration with the University of Wyoming to develop a P2P sniffer for network control: Teamwork brings P2P spying app closer

The product is one of the most ambitious among those being designed to rein in unauthorized trades of copyrighted works online, and it carries with it some of the most potentially serious privacy concerns. Most other services, such as Packeteer, work by blocking or controlling the amount of bandwidth available to file-trading applications, rather than by looking inside the transmissions themselves.

Audible Magic’s own technology specializes in identifying songs by their digital “fingerprints,” or acoustic characteristics.

But combined with Palisade’s network-security technology, it could become a powerful monitoring tool for network administrators or copyright holders. The joint product is designed to intercept all traffic on a network, make a copy of it, and then make a running examination of that copy for items such as Kazaa or Gnutella traffic.

When it finds digital packets originating from file-swapping software packages, it will compare the contents against Audible Magic’s database of fingerprints. If it finds a match to a copyrighted song, it will stop the transmission of a song in progress, even if some of the file has already been transferred.

Recall that a Palisades representative testified at the P2P and Porn hearing this week - Coverage of the Judiciary Committee Hearing on P2P and Pr0n

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A couple of eWeek pieces [8:19 am]

  • DRM: Restrictions May Apply

    As Peter Coffee points out in his Labs’-Eye View, DRM technologies are often loved by content creators, who are happy to protect their content, and hated by end users, who don’t want their fair-use rights abridged.

    [...] However, companies also need to make sure they restrict DRM to where it is necessary. Once a DRM system crosses over into annoyance, the desire to defeat it increases–and pretty much every DRM system can be defeated.

    [...] Still, companies must understand that no matter what their choice, DRM is not a cure-all. In eWEEK Labs’ experience, any DRM restrictions can be easily defeated through the use of remote control, digital cameras, or even pen and paper.

    Keep this in mind when deploying DRM because if the restrictions become too annoying, even a normally honest user might tap one of these methods to get around the hassles of DRM. And once this happens, your whole investment in DRM goes out the window.

    Related: The Best DRM Policy May Be No Policy at All

    In many ways, DRM is the IT equivalent of chemotherapy: It tries to kill the cancer of content theft without killing the benefit of that content to legitimate users, both those who have paid for it and those who rely on traditional doctrines of fair use.

    The difference, of course, is that it’s the content creators who suffer from content theft, while content users suffer from the remedies proposed. Not surprisingly, users resist the assumption of that burden.

  • Patents of Mass Destruction

    In a post to the Apache Software Foundation’s e-mail list, Java guru Noel Bergman said that if Eolas’ patent covers as much as it seems to, “the idea of an Open Source browser is rendered meaningless.” And Simon Phipps, Sun Microsystems’ chief technical evangelist, said in his Weblog, “When it becomes impossible to create a pool of open, shared standards for common use … our future will stall–corporate ownership is not an option.”

    If anything, the Eolas patent verdict demonstrates a rapidly emerging crisis in intellectual property governance. Software and process patents, such as Amazon’s infamous “one-click” patent (and the equally infamous and even more ridiculous patent #6,368,227, “Method of swinging on a swing”) demonstrate how the underfunded and overtaxed Patent and Trademark Office has lost its grip on the pace of change (and reality) and is becoming an impediment to, rather than an agent for, progress.

    Even if the Eolas verdict is reversed on appeal, similar intellectual-property claims (like those of SCO) will continue to be used by the well-lawyered as a deterrent to innovation by parties both large and small. It’s time for Congress to take a good, hard, lobbyist-free look at software patents, if not for an outright rejection of them. [emphasis added]

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The RIAA Press Release on their lawsuits [8:09 am]

Getting through to the RIAA site is a little tough, but their press release announcing the lawsuits includes a lengthy list of supporters and organizations - something to consult the next time you head to the record store (mi2n mirror): Recording Industry Begins Suing P2P File Sharers Who Illegally Offer Copyrighted Music Online

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Slashdot (below) Led Me To Forbes [7:59 am]

And a couple of old articles that offer a worthwhile retrospective

  • October 1, 2002 - Kick Music Execs While They’re Down, on the CD price fixing settlement:

    This is essentially what happened in the music business. CD prices may have been set too high, but they were also set too high at a time when record companies were getting eaten alive by the Napsters of the world. It could be argued that if CD prices were cut in half, consumers might be willing to buy more albums by unknown artists, since the purchase wouldn’t be such a large investment. And the more unknown artists sell records, the less dependent labels would be on hits from pop idols such as Britney Spears.

    But more important, would Napster even have existed if there hadn’t been a demand for it? The record industry essentially stoked the fires of the pirate music market by setting prices prohibitively high. Necessity is, after all, the mother of invention.

  • February 20, 2002 - Digital Music After Napster. Each company’s efforts are profiled after the article lead:

    Seven months after they shut down Napster, what are the five major record companies doing to give consumers the digital music they demand? Answer: not very much.

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Another European Perspective [7:51 am]

The Economist: Not-so-Jolly Rogers [pdf]

The advent of the internet–and the software and hardware that enable users to download music with a few clicks of the mouse or to “burn” CDs–has had a devastating effect on the music industry. Shipments of recorded music have dropped by 26% since 1999. The industry has responded with price rises, and so revenues have fallen by “just” 14%. The industry focused first on shutting down Napster, and then went after file-sharing services without a central directory, like Grokster. But a court ruled in April that Grokster was not violating copyright law by distributing peer-to-peer (P2P) file-sharing software, which also has legitimate applications.

[...] Music consumers point out that the industry has hardly helped itself by taking its time to make music available online legally. Only this summer did EMI, a British music group, allow part of its Rolling Stones catalogue to be downloaded legally. Songs by the Beatles are still not available legally online. A number of music companies are dabbling with subscription services, but these have failed to smother the free file-swapping sites.

Can the industry find a subscription model that music-lovers will use? [...]

Meanwhile, music companies continue to look flat-footed compared with other industries affected by piracy, such as the movie business. Warner Brothers slashed the price of its DVDs a few years ago, spurring an upsurge in sales. A side-effect was that some DVDs ended up being cheaper than CDs, making the CDs, which are typically shorter and have no visual content, look distinctly overpriced. Universal Music Group’s price cut last week was in part a belated attempt to close this gap. It now hopes to compete with the likes of Wal-Mart, a low-price hypermarket giant which sells CDs at a loss to stimulate sales of high-margin goods.

But it looks as if the music industry will also resort to old-fashioned consolidation and cost-cutting to preserve profits. [...]

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Slashdot on the CleanSlate suit [7:44 am]

Slashdot: RIAA Sued For Amnesty Offer. See earlier weblog entries: Before I go home …, Some quick links as I turn to other tasks…., Infringing Actions on Cleaning Your Slate and A Lawsuit over CleanSlate

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The GTA Defense? [7:38 am]

The Register: Grand Theft Auto in the dock over US road killing — seriously?

The two teenagers - William and Joshua Buckner, 16 and 14 years old, respectively - opened fire on vehicles on the Interstate 40 highway in Tennessee with a .22 calibre rifle, killing one person and injuring another severely.

They told the police who arrested them that they were bored, and decided to mimick their favourite videogame, Grand Theft Auto. The family of the victim, 45-year-old nurse Aaron Hamel, have now filed suit against Take-Two Interactive, claiming that the company should take responsibility for his death.

[...] Compare and contrast with the situation here in the UK, where despite massive sales of Grand Theft Auto and Vice City (over a million copies each in a country of only 60 million people), we’ve yet to see a single case like this emerge. With games on trial for causing juvenile violence in the US, and the family of Mr Hamel calling for Grand Theft Auto to be removed from sale, that’s something to consider very seriously.

Or perhaps the answer to the perennial problem of delinquent teenagers dropping bricks from motorway and railway bridges is to sue the creators of Tetris.

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Boston Globe on 261 Fallout [7:25 am]

Parents scramble over file sharing [pdf]

Since the music industry began suing digital pirates this week, personal computer consultant Osama Shanaa has uninstalled four file-sharing programs during house calls to homes in suburban Boston.

[...] Shanaa’s increased workload is a testament to the anxiety and confusion among the parents of children who store and share digital music on their home computers.

[...] [An] option is to shut off the file-sharing features in these peer-to-peer programs. That way, the user can download music from other users’ machines, while blocking access to the music on his own machine. File swappers consider this selfish, and with good reason — if everyone did it, there’d be no files to share. Indeed, this is why the RIAA has focused on suing people who share files, not those who merely download them.

[...] And despite the high-profile lawsuits, traffic on file-sharing networks is up sharply over last month, according to BigChampagne, a market research firm based in Los Angeles that tracks activity on peer-to-peer networks. About 4.2 million users were on Kazaa at any given time yesterday, up from 4.1 million on Tuesday and nearly 3 million in August.

“That’s not to say that there is no deterrent effect,” Eric Garland, the chief executive of BigChampagne, said of the lawsuits. “But it’s probably being countervailed by a bigger force — back to work, back to school.”

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