November 28, 2003

Taxes on CD Blanks Not Enough [4:15 am]

According to Slashdot, there’s going to be an initiative to collect fees from Canadian ISP to compensate for copyright infringements: Canadian Music Industry Wants Royalties on Net Usage Citing SOCAN, this is all about something called Tariff 22.

So in 1995, to protect its members’ rights, SOCAN proposed and filed Tariff 22 with the Copyright Board.

Tariff 22 seeks to licence the royalties for the public performance of musical works by means of any telecommunication service whose transmission can be independently accessed. The primary target of this tariff is the Internet access providers.

The Copyright Board decided to conduct hearings for Tariff 22 in two phases. Phase one, completed in the fall of 1999, dealt with legal issues pertaining to the tariff such as who is liable and what actions are liable under the Copyright Act. Phase two will deal with the tariff structure and who specifically will be liable within the communication chain for the payment of fees and amount of those fees under the tariff. As yet, the date for the hearing of phase two has not been set.

The article cited on Slashdot suggests that SOCAN is going to the Canadian Supreme Court to get action on this tariff that is more to their liking.

Canada’s songwriters will ask the Supreme Court of Canada next week to force Internet service providers to pay them royalties for the millions of digital music files downloaded each year by Canadians.

[...] So far, SOCAN has had partial success in convincing a Canadian court of the justice of its cause. SOCAN had originally asked the Copyright Board of Canada to impose a royalty on Canadian ISPs but the Copyright Board ruled that ISPs ought to be granted an exemption from paying royalties because they were, like telephone companies, simply a carrier or transmitter of the music files. SOCAN appealed that decision to the Federal Court of Canada and, there, found some success.

The Federal Court agreed with the Copyright Board that ISPs were indeed carriers or transmitters of content except when ISPs engaged in caching content to speed up the performance of their systems. Caching (pronounced cash-ing) is a common procedure used by ISPs in which copies of popular Web pages are stored on a computer close to a group of end users. When an end user in Toronto, for example, requests the home page of search site Google, the Google search page is retrieved from a computer in Toronto rather than from Google’s main computers in California.

The Federal Court held that the act of creating a cache of content means that ISPs are moving from their role as carrier to a role in which they actively decide what kind of content will exist on their systems. And that means, under Canadian copyright law, they should be responsible for that content.

The ISPs disagreed with that interpretation of the Federal Court and were granted leave to appeal that ruling to the Supreme Court. [...]

SOCAN is proposing that ISPs pay a royalty of 25 cents per subscriber per year as well as 10 per cent of any gross profit ISPs make through the sale of advertising.

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November 27, 2003

Donna Got In A Couple of Great Posts Before Thanksgiving [9:18 am]

So check them out:

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November 26, 2003

A Setback for the Second Enclosure Movement [1:39 pm]

From Scrivener’s Error: We Want Information — a discussion of the decision in Applied Technologies of Wisconsin, LLC v. WIREData, Inc., No. 03-2061 (7th Cir. Nov. 25, 2003) (Posner, J.)

This case is about the attempt of a copyright owner to use copyright law to block access to data that not only are neither copyrightable nor copyrighted, but were not created or obtained by the copyright owner. The owner is trying to secrete the data in its copyrighted program—a program the existence of which reduced the likelihood that the data would be retained in a form in which they would have been readily accessible. It would be appalling if such an attempt could succeed.

[...] From the standpoint of copyright law all that matters is that the process of extracting the raw data from the database does not involve copying Market Drive, or creating, as AT mysteriously asserts, a derivative work; all that is sought is raw data, data created not by AT but by the assessors, data that are in the public domain.

Plus, in dicta, we get some great Posner thoughts:

WIREdata is not a licensee of AT, and AT is not suing to enforce any contract it might have with WIREdata. It therefore had no cause to drag the licenses before us. But since it did, we shall not conceal our profound skepticism concerning AT’s interpretation. If accepted, it would forbid municipalities licensed by AT to share the data in their tax-assessment databases with each other even for the purpose of comparing or coordinating their assessment methods, though all the data they would be exchanging would be data that their assessors had collected and inputted into the databases. That seems an absurd result.

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An FTAA Call to Arms [12:03 pm]

Recall that I cited a NYTimes op-ed on the FTAA negotiations a couple of days ago. IP Justice is circulating a rather inflammatory report on the recent meeting, entitled IP Justice Report from the FTAA Trade Ministerial Meeting in Miami. The story they tell is particularly distressing. I am in no way an expert on this treaty, but it’s clear that there’s some homework to be done here to see just how far the treaty goes:

The intellectual property rights chapter proposes that all signatory countries must adopt four different World Intellectual Property Organization (WIPO) agreements whose drafting is not finished and 2 WIPO Treaties whose drafting has not even been started yet (broadcasting and database protections). Many Southern countries have intentionally steered away from signing onto WIPO Treaties, which they view as stifling their development and ability to compete with the US in important technology sectors.

FTAA’s IPR chapter expands the subject matter of intellectual property rights, creates new forms of intellectual property rights, and eliminates exceptions and flexibilities to these rights. The chapter also contains significantly stronger enforcement measures such as criminalizing non-commercial copyright and patent infringements.

[...] One of the most controversial sections of the IPR chapter requires countries to outlaw the circumvention of technological restrictions. Similarly to US Digital Millennium Copyright Act (DMCA), FTAA would require all other countries to outlaw the bypassing of technological restrictions controlling copyrighted works, such as DVDs, CDs, and eBooks. It would also forbid anyone from helping another to bypass these controls, including outlawing tools, software, and technical information. One proposed FTAA clause contains an explicit basis against the development of free and open source software development by creating greater liability for those programmers than for proprietary programmers who write software capable of bypassing digital controls. These anti-circumvention measures have been widely used in the US to threaten freedom of expression and chill scientific research in the critical field of information security. Anti-circumvention laws have also served to prevent competition for after-market replacement parts and interoperability between systems. [emphasis added]

The treaty’s section on the enforcement of intellectual property rights proposes to criminalize non-commercial infringements, such as peer-2-peer (P2P) file-sharing. Another proposal would expand the scope of copyright to permit the copyrighting of facts and scientific data. The IP Justice White Paper “FTAA: A Threat to Freedom and Free Trade” discusses the IPR chapter’s dangers in greater detail.

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Some Download For Fee Statistics [11:20 am]

From The Register: Ten million Americans pay for music downloads in Q2

Ten million Americans paid to download music during the second quarter, according to the latest statistics from market research company Ipsos-Insight.

That equates to 16 per cent of the total number of US-based users who download songs, legal and illegal, the company said. Paying downloaders accounted for eight per cent of all US users in Q4, 2002 and 13 per cent in Q1, 2003.

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Talk About Brass! [9:50 am]

The Register reports that the MPAA and the RIAA have come up with a solution to some of their legal woes — form a baseball team — no, no, no — ask for a blanket antitrust exemption — via Sen. Orrin Hatch’s ENFORCE Act Slashdot discussion: MPAA, RIAA Seek Permanent Antitrust Exemption

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Diebold Capitulates [8:38 am]

Donna reports that Diebold has decided not to sue over the posting of their internal e-voting memos. See also the Stanford Center for Internet and Society’s site about the case, and Larry Lessig’s thoughts.

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Michael Speck: ARIA’s Bulldog [8:33 am]

Slashdot reports that the Australian Recording Industry Association (ARIA) is preparing to sue ISPs over the downloading of copyrighted content. Michael Speck, who has made something of a name for himself by promoting a particularly stringent perspective on copyrights, is cited.

ARIA’s music industry piracy investigations manager Michael Speck said ISPs relied on illegal music downloads for 20 per cent of their revenue and were aware customers were flouting copyright laws but did nothing to stop them.

He said the failure of Internet companies to prevent copyright infringements left ARIA with no choice but to prosecute them.

But Internet Industry Association chief executive Peter Coroneos slammed Mr Speck’s comments as “provocative” and “inflammatory” and said ISPs were keen to work with copyright holders to prevent infringements.

A particularly interesting bit, in light of his generally strident tone, appears at the close of the article:

Mr Speck said ARIA did not plan to prosecute individual music downloaders, as the US music industry had done.

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November 24, 2003

A Little More Lessig [6:16 pm]

Seems like it’s just been that sort of day. From BoingBoing: Fiber to the People

The answer, as Cornell economist Alan McAdams argues, has nothing to do with Karl Marx and everything to do with basic economics. AFNs are natural monopolies. That doesn’t mean that there can be only one, but rather that if there is one, then it is far cheaper to simply add customers to the one than to build another. The electricity grid in a local neighborhood is a good example of a natural monopoly. Sure, we could run four wires to every home, but do we really need four electricity companies serving every home?

The question is not who installs the wire, but who provides the service. Provocative, at least.

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Updated Vocaloid Entry [9:27 am]

For those interested, I’ve updated the Vocaloid entry below with the Slashdot link, which also points to some rather eerie MP3 demos of the technology.

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Lessig at NYU [9:11 am]

[via A blog doesn't need a clever name] A blog entry, Lawrence Lessig on Free Culture, at NYU, describing Larry Lessig’s talk at NYU’s Colloquium in Law, Philosophy, and Political Theory (his paper/excerpt: Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity)

It doesn’t seem this way to many. The battles around copyright and the Internet seem remote to most. To the few who follow them, they seem mainly about a much simpler brace of questions — whether “piracy” will be permitted, and whether “property” will be protected. The war that has been waged against the technologies of the Internet — what Motion Picture Association of America (MPAA) President Jack Valenti calls his “own terrorist war” — has been framed as a battle about the rule of law, and respect for property. To know which side to take in this war, most think that we need only decide whether we’re for property, or against it.

If those really were the choices, then I would be with Jack Valenti and the content industry. I too am a believer in property, and especially in the importance of what Mr. Valenti nicely calls “creative property.” I believe that “piracy” is wrong, and that the law, properly tuned, should punish “piracy,” whether on or off the Internet.

But those simple beliefs mask a much more fundamental question and much more dramatic change. My fear is that unless we come to see this change, the war to rid the world of Internet pirates will also rid our culture of values that have been integral to our tradition from the start.

[...] Yet the law’s response to the Internet, when tied to changes in the technology of the Internet itself, have massively increased the effective regulation of creativity in America. To build upon or critique the culture around us one must ask, Oliver Twist like, for permission first. Permission, of course, is often granted. But it is not often granted to the critical, or the independent. We have built a kind of cultural nobility; those within the noble class live easily; those outside it, don’t. But nobility of any form is alien to our tradition.

Derek points out that there’s more Lessig at the NYU site: Chapter 10: Property and Afterword. He also cites Larry’s blog entry, which is a shock only in that I’ve been unable to get through to it since it was Slashdotted yesterday.

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Donna on Diebold [8:57 am]

Kucinich Calls for Hearing on Diebold DMCA Abuse — citing Kucinich’s letter to the Judiciary Committee

Diebold’s actions abuse the Digital Millennium Copyright Act, using copyright to suppress speech rather than fulfill the Constitution’s purpose for copyright, to “promote progress.” These abuses raise a fundamental conflict with the First Amendment, diminishing the Internet’s tremendous value as a most free medium of expression. Diebold’s actions are representative of a growing body of abuses through which large and powerful parties unfairly intimidate ISPs to remove information those parties do not like. In other examples, the claims are not really about copyright, but about not showing the parties in a negative light, or not allowing consumers to compare prices, or quieting religious critics. Powerful parties should not be permitted to misuse copyright as a tool for limiting bad press and barring access to legitimate consumer information.

See Kucinich’s website where he has added a section on voting

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Jon Johansen Announces Another DRM Crack? [7:45 am]

The Register: DVD Jon unlocks iTunes’ locked music; Slashdot points out that it’s only a start: Apple’s iTunes DRM Cracked?

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Online Music A No-Win? [7:42 am]

From The Register: DRM music goldrush is a race for losers - mp3.com founder

Apple is leading a race of lemmings into the zero-profit business of closed music downloads, says the founder of MP3.com, Michael Robertson.

“It seems kind of crazy to me, the economics don’t make sense,” Robertson told us Thursday. “Why are all these guys like Microsoft and Wal-Mart rushing into a business where the industry leader says ‘we cannot make money with the contracts that we have’?”

“This is a race where the winner gets shot in the head.”

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A Little Register Humor [7:37 am]

Numbers to be patentable

In a move that has surprised naïve observers, the US Patent Office has announced that from now on it will consider ‘serious’ applications to patent specific integer numbers.

“It was the logical next step,” grey-haired and twinkling Patent Laureate Mr J Dall Swanhuffer twinkled to a shocked press conference today.

[...] “Of course there has been irresponsible campaigning and scaremongering among left-wing pressure groups with an anti-big business bias. We expected this and we are ready for it. These are the same forces at work that were against software patents granted for stunningly obvious and general techniques. In truth one cannot but feel sorry for any confused individual who vainly tries to hold up the inevitable and just progress of patent law.

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November 23, 2003

Larry’s Been Slashdotted… [6:11 pm]

So I can’t read what he wrote, but the comments are pretty interesting: Fiber to the People: Lessig, IEEE & AFNs

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SBC’s DMCA Subpoena Fight [5:28 pm]

SBC raps RIAA subpoenas in court

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‘Free’ as in Beer and ‘Free’ as in Speech [5:26 pm]

A look at what happens when they get conflated — When Free Isn’t Really Free - with quotes from Siva Viadhyanathan and Jonathan Zittrain, as well as TPP alum Alan Davidson.

But now people from all sides of the Internet copyright debate have begun to notice that freebies often mask a multitude of possible cybersins. A report released last week (Ghosts in Our Machines: Background and Policy Proposals on the "Spyware" Problem) by the Center for Democracy and Technology, a high-tech policy group in Washington, called for new regulations, voluntary industry measures and consumer education to combat the problem of “spyware” that often piggybacks on programs, including the software people use to download music.

The Federal Trade Commission has not tried to prosecute any companies for distributing spyware, and courts have declared the programs legal so far. But the Center for Democracy and Technology says that more should be done to protect consumers from sneaky software. “Spyware represents a serious threat to users’ control over their computers and their Internet connections,” the report said.

[...] But the problems with spyware and other rogue programs may offer the music industry a way out, one that doesn’t risk alienating customers by threatening lawsuits. To avoid messing up their computers and surrendering their privacy, people may be more willing to pay for their music - so long as it comes in a form they want and at a price they don’t mind paying.

“It’s not rocket science, it’s not new math, it’s not ‘new economy,’ ” said Mike McGuire, director of media research at GartnerG2, the business strategy research group of Gartner Inc. “If people want this thing, they will pay a reasonable price for it - if it is reasonably priced and convenient, and it works when you hit ‘play.’ ”

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Donna Makes A Find [5:15 pm]

Kelley Requires Open Source Code for E- Voting

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In Tomorrow’s (Now Today’s) NYTimes… [5:10 pm]

There’s a particularly interesting article, Could I Get That Song In Elvis, Please. (The graphic is a wonderful representation of a kind of technological alienation, matching the description quoted below). It’s a story about a technology that Yamaha has been working on that seems to have solved the problem of constructing a digital voice “font,” allowing a music producer to develop a song performance using an assemblage of digitized recordings of a voice. Unlike the voder-like sound that we associate with Steven Hawking, this construct supposedly sounds lifelike — the first development has been for “soul” voices that can serve as backup. (To spook yourself, listen to this Amazing Grace, purportedly generated using Vocaloid — via the Slashdot discussion below. Here’s a link to one demo; other demos coming)

Raises a whole new set of interesting digital IP issues….

Developed at Pompeu Fabra University in Spain and financed by the Yamaha Corporation, the software, which is due to be released to consumers in January, allows users to cast their own (or anyone else’s) songs in a disembodied but exceedingly life-like concert-quality voice. Just as a synthesizer might be programmed to play a series of notes like a violin one time and then like a tuba the next, a computer equipped with Vocaloid will be able to “sing” whatever combination of notes and words a user feeds it. The first generation of the software will be available for $200. But its arrival raises the prospect of a time when anyone with a laptop will be able to repurpose any singer’s voice or even bring long-gone virtuosos back to life. In an era when our most popular singers are marketed in every conceivable way — dolls, T-shirts, notebooks, make-up lines — the voice may become one more extension of a pop-star brand.

[...] Vocaloid’s next application will be Miriam, a third font that Zero-G expects to release later in 2004. (A Japanese company, Crypton, expects to release its own font — “Japanese Pops,” a bubbly female voice — in March.) Miriam is based on recordings of Miriam Stockley, a singer for the new age group Adiemus, which has worldwide album sales in excess of several million. “At first I was quiet horrified by the idea,” Ms. Stockley said. “People tend to pay a lot of money to get my sound, and here I am putting it on a font.”

She changed her mind, she said, because “you can’t fight progress, no matter how strange it sounds.” She also negotiated an undisclosed percentage for each copy of Miriam that sells. But once Miriam the vocal font is out there in the public, Ms. Stockley the actual singer has little control of how it will be used. Anyone who legally purchases the font is entitled to use it to write songs for commercial purposes, though they’re not allowed to market them as Ms. Stockley’s own recordings.

Mr. Stratton reiterated the point, “when vocal fonts are used, the performer is the user and Vocaloid is an instrument.”

In the long term, Mr. Stratton is aware that the true killer application will be recognizable celebrity fonts — the Elton, say, or the Aretha. But so far, none of the world’s most famous voices have volunteered.

[...] Elvis seems like an obvious candidate for vocal reanimation.

A Slashdot discussion of a related topic: Decoding the Algorithm for Pop Music

Slashdot discussion: Synthesized Singers

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