Sorry about the paucity of posts today; sometimes other things intervene.

I see that Mary’s linked to today’s NYTimes editorial: Suing Music Downloaders. Something of a counterpoint to David Coursey’s column that I commented on this morning, I suppose.

However, I think the Times piece is a little too measured and that Coursey’s piece, with its implicit "split personality" is a more accurate look at the situation. The record companies have elected to fight all the way down to the bottom of the tar pit, and it’s going to be a question of when, not if, Congress is going to face up to the fact that the notion of legal and illegal copying currently embedded in our laws is simply out of date; that reliance upon the norms of a community of publishers no longer serves when the barriers to entry for publishing have disappeared; that digital technology has changed copying from the tedious and expensive luxury of the Middle Ages into the sine qua non of essentially all forms of communication.

It’s not about educating the public. The technologies have already subverted the established paradigms, and the public is busily exploiting the opportunities these technologies afford. It’s the industry and our lawmakers who need educating — and soon, before they act in concert to crush the opportunities of the future to serve the interests of the past.

Slack-jaw At the Audacity Department: Beatles’ label sues Apple - again

As we’ve reported before, at the launch of the online iTunes Music Store, back in the early 1980s, Apple Corp. sued Apple Comp. for trading on its name. The case was settled out of court, with Apple Comp. agreeing to pay Apple Corp. a large sum of money and promising not to offer music products.

Toward the end of the decade, Apple Corp. sued again, claiming that the Mac’s ability to play and manipulate music was a violation of the previous agreement. Once again, Apple Comp. paid up and agreed not to enter the music market. Presumably it won the right to make play music on the Mac, since the platform has been able to do so ever since.

Flip forward to 2003, and what has Apple Comp. done? Entered the music market, in a pretty big way. At the launch of the ITunes Music Store, we wondered whether Apple’s notoriously busy legal department had checked over the older agreement, or had even come to a mutually beneficial deal with the Beatles’ label.

According to a report on Fox News, it looks like they haven’t - having spent too much time focusing on threatening fan-run websites.

Slashdot commentary: Beatles Bite Apple - with this cute, but probably purely apocryphal tale:

Re:O_o (Score:5, Informative)

by Frymaster (171343) on Friday September 12, @12:43AM (#6939785)

(http://frymaster.dyndns.org/ | Last Journal: Wednesday July 30, @12:53PM)

It seems totally mind boggling that apple computer did not know wtf they were doing.

sure they knew. the second system beep developed for the mac (after “sysbeep”) was called “sosumi” - which is pronounced “so sue me”. it was in direct reference to apple records and the whole “can’t make music” clause.

Lawsuits ‘not scaring swappers’

“There’s no mass exodus, that’s safe to say. Ironically, usage this week and this month is up,” said Eric Garland, a spokesman for BigChampagne.

He said that the monitoring of the Fast Track network, which is used by file-sharing services Kazaa and Grokster, saw that figures had increased.

“The number of people using these file sharing services in the first 10 days of September is up more than 20 percent from the August average,” said Mr Garland.

[...] “There’s a perception that suing even a few thousand means the odds of getting sued are like the odds of getting struck by lightning.”

Via Copyfight, the EFF’s petition for copyright law change: Take a Stand Against the Madness; Stop the RIAA!

Via BoingBoing: Commentary: What’s Real and Make-Believe with the RIAA Subpoenas?

Theoretically, subpoenas are filed with discretion, often during “discovery” after a lawsuit has already been filed. However, the DMCA specifically departs from this common practice by allowing the RIAA to issue subpoenas before having to file even a single lawsuit; in fact, all that the RIAA needs to subpoena someone’s personal data is a “good faith belief” that the person is infringing their copyrights, which, when it comes to file sharing, is pretty much every one of the 60 million users, in the eyes of the RIAA. This “pre-emptive” subpoena power is exactly what privacy advocates and defenders of Due Process feel is unconstitutional and inappropriate about the DMCA subpoena provision. This gives the RIAA the right to spy on 60 million Americans, even if it never ends up suing a single one of them.

Because subpoenas are ordinarily filed after a lawsuit has begun, valid subpoenas typically are limited to requesting information related to the subject matter of the lawsuit and the parties to the lawsuit. (This was part of the basis for Judge Brazil’s finding in the Kozinski case — that the subpoenas requested information beyond the scope of the lawsuit.) Parties to the lawsuit are also required to give copies of any subpoena they issue to the other parties. Because of the relevance limitation and the requirement to send copies to others, all affected parties in a litigation get notice if their information is being requested from a third party; this allows them to move to quash any subpoena that might invade their privacy. (As was the case in the Kozinski case.)

However, when it comes to the DMCA’s pre-emptive subpoenas, there is no lawsuit; therefore, there are no opposing parties that the RIAA is required to send copies of the subpoena to. Thus, the users never find out that their information is being sought and never have a chance to oppose, unless the ISP voluntarily notifies them.

*Whew* For a moment there, I was afraid I was going to have to say I agreed with David Coursey’s latest column. Luckily, he slipped into nonsense shortly after pointing out the stupidity of the RIAA in suing Brianna, although he does make his support of the RIAA rather backhanded:

Make no mistake: The RIAA is in the right here. However badly the music industry is alienating customers and clinging to a business model that’s rapidly dying, swapping music is stealing music. Maybe that law should be changed, but until it is online music swapping is illegal in almost all cases and the RIAA has every right to sue.

*Bzzzzt* Sorry, David. Wholesale swapping of music on the internet using P2P networks is copyright infringement and, as copyright is currently constructed, such file swapping is an illegal act. (E-mailing an MP3 to your sister probably isn’t, though.) Stealing is also an illegal act (unless you’re Enron, of course), but that doesn’t make copyright infringement the same as stealing.

Prostitution is illegal too, but pimping for Microsoft isn’t — a distinction that I’m sure David pays very close attention to.

Driving over the speed limit is illegal, by the way. I wonder how much ink we can expect David to spill over that problem.

Hmmm - looks like someone didn’t get enough sleep. Sorry — I’ll try to be nicer the rest of the day…. After all, David’s worst fears are exactly the things that I am hoping for!!

The recording industry’s goal shouldn’t be to stop music swapping, or alienate customers (as lawsuits are sure to do) but to rechannel swapping into acceptable, licensed channels. Until such channels exist in sufficient quantity and quality to meet customer demand, the RIAA’s lawsuits will at best further vilify the recording industry and at worst inspire new laws that will take the crime out of music swapping. [emphasis added]

Let’s hear it for the worst!!