February 26, 2004

From the Apple v. Apple Trial [6:29 pm]

‘I’m an iPod user’ admits Apple vs Apple judge

Apple Comp. and Apple Corp. faced each other again in the British High Court today, on the second day of the two companies’ legal fight.

And the judge, Mr Justice Edward Mann, surprised the assembly by admitting he is an iPod user. He wondered if this disqualified him from judging the case. Lord Grabiner QC, representing Apple Comp., told him he was not. “I’m delighted to hear that,” he told Mann.

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Wi-Fi, NAT and CRIA/RIAA Lawsuits [6:18 pm]

Piracy on wireless Internet raises legal challenges: As the recording industry pursues illegal music traders, how does it prove who was actually doing the stealing?

Your next-door neighbour, even passersby outside your home, could be tagging along for the ride and leave no trace of their online adventures, such as sharing music files, something the Canadian Recording Industry Association is intent on prosecuting.

CRIA’s attempt last week to get names and addresses of suspected heavy music traders from the country’s top Internet-service providers underscores the difficulty of telling the good guys from the bad guys over the Internet.

Routers that cost less than $100 not only let many computers share one Internet connection, they create a firewall to protect the identity of every connected computer. That makes it difficult to track down who exactly is copying music illegally, an argument the ISPs used to delay a court hearing to March 12 on the recording industry’s request.

“It’s like them asking us to give them the key to the front door to catch a suspect who doesn’t even live there,” said Shaw’s president, Peter Bissonnette.

[...] But even if you can identify the computer used to copy music illegally, is the Interne-account owner responsible for what others might have used it for?

They are, according to Pfohl. “The infringers whom we identify will be the service subscribers, who are almost certain to be adults. Subscribers need to know that they are responsible for illegal activities committed using their personal computers and accounts.”

Other industry observers say CRIA will have to go beyond the owner of an Internet subscription.

“It’s not enough for our cyber-crime prosecutions to trace the activity back to the computer,” said Alberta’s special crown prosecutor, Steve Bilodeau.

“We have to find whose hands are on the keyboard to figure out who did it.”

Adding to the confusion is a December ruling of the Copyright Board of Canada saying it is legal to download music, but allowing others to download it from your computer to theirs probably is a copyright infringement.

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A Scary Story [6:01 pm]

Albeit interesting to a mini iPod owner — not that I’d do it: Taking apart the iPod mini;

Slashdot discussion: iPod Mini Autopsy

Funniest comment:

Re:Well… (Score:5, Interesting)

by Anonymous Coward on Thursday February 26, @03:15PM (#8401079)

HAH, Thanks for the slashing guys… my server is barely coping ;) I’m going to have Apache recompiled to allow MORE connections. See if that helps… I doubt it ;) And yes, the site runs on a 1st generation iPod. ;) We had problems using the 3G iPod… Linux didn’t like the touch wheel.

Dennis Lloyd

Publisher/owner

iPodlounge.com

Close second

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Woo-hoo! [5:43 pm]

Court doesn’t extend database protection

U.S. District Judge Naomi Buchwald said in an opinion released this week that Berkshire Information Systems did not run afoul of the controversial 1998 copyright law by allegedly downloading up to 85 percent of a proprietary advertising-tracking database from the Web site of competitor Inquiry Management Systems (IMS).

Buchwald said, however, that she would allow the case to proceed to trial because Berkshire may have violated the Computer Fraud and Abuse Act, a law commonly used to convict computer intruders. The law, invoked in the recent Adrian Lamo case, permits both criminal prosecution and civil lawsuits when an Internet-connected computer is accessed “without authorization.”

[...] Because Berkshire may have somehow obtained a legitimate password to the Web site, the judge said, IMS’ argument that the bulk downloading “circumvented” a security system was a stretch. “Whatever the impropriety of defendant’s conduct, the DMCA and the anti-circumvention provision at issue do not target this sort of activity,” Buchwald wrote. Section 1201 of the DMCA says “no person shall circumvent a technological measure” that protects copyrighted material.

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Some Post Grey Tuesday Thoughts [1:43 pm]

moral rights and the grey album [via A blog doesn't need a clever name] [link fixed -- thanks Ernest!]

It seems that today copyright is about two things: money and control. I am not so concerned about the money side of it - within reason. Artists, like anyone else, deserve to fairly compensated for their works. I will be so presumptuous to say that this part of the debate is almost over. Of course there are disagreements about what fair means in this context.

My real difficulty lies in the controlling aspect of copyright law. Like not being able to hear something like the Grey Album just because the suits at EMI don’t like it.

[...] I used to be in favour of moral rights when I initially studied copyright law. Maybe because they seemed so chic, European and idealistically artist-friendly, compared to the boring utilitarian justifications for copyright in the English-speaking world.

The big change has been in my understanding of the process of artistic creativity. Works of art are like people – they all have parents and families. They don’t spontaneously appear fully-grown, like Athena out of Zeus’ brow. Sometimes the ancestors of a new creation will be obvious – but even if the connections are not obvious, it doesn’t mean that the work came from a vacuum.

[...] I still think that once words, music or images are released into the world, they cannot be recalled. The artist should be reasonably compensated, but needs to understand her or his work acquires a life of its own, to be used or misused as the vagaries of the world see fit. The alternative - tight controls over all content - is folly and doublethink.

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Mary on Getting C&Ded Over Grey Tuesday [11:35 am]

C&D’d on The Grey Album

But I want to point out demand #2:

2. identify the names and addresses of any third parties who have supplied you with physical or digital copies of The Grey Album or who are otherwise involved in The Grey Album’s unauthorized distribution, reproduction, public performance, or other exploitation;

Well, that feels very “house unamerican activitites” committee of them. So I’m guessing they’re going to get a lot of cooperation on that one. Not to mention, they demand a full accounting of all your activities! Now, young lady, or we’re turning this car right around and going straight home. Spank, spank, spank!

Does it matter if you own the two albums outright already, and simply want the blended version, remixed? The point here is that copyright goes too far, and so any remix is illegal-art without permission, unless it’s a public domain work.

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Jason Schultz and Derek Slater On Compulsory Licensing [10:24 am]

(Apparently there’s someone out there reading!) I got a couple of e-mails over EFF’s Compulsory Licensing Trial Balloon. Derek rightly chides me about conflating the radio license with the licenses at issue in the P2P domain, which is more like a mechanical reproduction than a performance license. Point taken,

More striking is Jason’s comment, who points out that I’m missing a key dimension in this particular debate by forgetting to consider all the constituencies — something we keep drumming into the TPP students, too. Here’s his e-mail:

I can’t speak for Fred personally, but don’t forget that the RIAA labels’ entire business is predicated on a compulsory licensing system — the mechanical license. They use government-fixed prices (now 8.5 cents/song/copy) to regulate how little they have to pay songwriters every time they press a new copy of a CD. I’d love to hear whether they are willing to forgo that compulsory licensing system for a “market” system.

And of course, they completely ignore the fact that our proposal let’s them re-adjust the monthly fee as much as they want as often as they want as the market demands.

A "market system" allocation of licensing rights to the artist — it would be really interesting to see the RIAA argument on why what’s good for the goose would not be good for the gander.

Thanks, guys!

(Here’s LawGeek’s posting on the EFF proposal)

Update: Here’s Ernest Miller’s take — Thoughts on the EFF P2P Solution White Paper

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Derek on 321 [10:08 am]

A summation and analysis, with notable consideration of the current 321 Studio response: Three, Two, One: Lawsuit!

Here’s the silver lining in Illston’s ruling - she seems to have anticipated this in a way that favors 321:

“The DMCA does not prohibit copying of non-CSS encrypted material, so if 321 removed the part of its software that bypasses CSS and marketed only the DVD copying portion, it could freely market its product to customers who use the software to copy non-CSS encrypted DVDs and other public domain material.” (emphasis added)

Though it might also be used by customers who copy CSS encrypted disks, that is irrelevant under Sony. Copying non-CSS encrypted DVDs and public domain material will likely count as substantial non-infringing uses.

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Larry Lessing on Solum & Keenan [10:00 am]

Donna notes that Larry has responded to Prof. Solum’s comment that I noted in A New Eldred Argument?

While Prof. Solum’s argument that "limited times" should be measured against the yardstick of an author’s life ("three score and ten") at least has more effective recourse at law than anything based on discount rates and the vagaries of the capital asset pricing model, Larry’s comment tangentially makes the point that the minute corporations were given legal standing as "persons" that argument got blown out of the water, too.

Are we really talking about having to reframe our jurispredence that drastically? And, if we are, can we reasonably expect it to happen outside of a true revolution?

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Some More Digital Bottles [9:28 am]

From a natural constituency for DRM — business: Microsoft partnering to lock docs

Microsoft will work with third party companies including nCipher PLC and Liquid Machines Inc. to secure files such as e-mail and word processing documents regardless of where they are stored, using rights management features and tools in Windows Server 2003, Microsoft Office 2003 and Microsoft Internet Security Acceleration (ISA) Server, the company said.

Liquid Machines, of Lexington, Massachusetts, said that it is working with Microsoft to integrate its products with Windows Rights Management Services (RMS) for Windows Server 2003.

Through the partnership, Liquid Machines will use its proprietary auto-integration technology and application programming interfaces (APIs) to add RMS features to applications such as Adobe Systems Inc.’s Acrobat, Documentum Inc. enterprise content management products and Siebel Systems Inc.’s customer relationship management (CRM) products, the company said.

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EFF’s Compulsory Licensing Trial Balloon [9:08 am]

From Wired News: The Answer to Piracy: Five Bucks?.

EFF attorney Fred von Lohmann, speaking as part of a panel on peer-to-peer music sharing, proposed that music fans pay a small monthly fee — perhaps $5 — to share files with impunity, using whatever software they like. The money could be collected by a central organization and then distributed among those who own the rights to the songs, based on popularity.

The idea has worked before. Broadcast radio stations paid a similar flat fee to ASCAP and BMI — organizations representing songwriters, composers and music publishers — to play their music as much as they wanted, he said.

David Sutphen, vice president of government relations for the RIAA, immediately pooh-poohed the idea. File sharers still would search out a way to download music for free, he said, and under the proposed system, all music would have the same value, which doesn’t make sense. One-hit wonder Vanilla’s Ice’s “Ice Ice Baby,” for example, would have the same value as The Beatles catalog.

He said these types of compulsory licenses are “not a wise or logical thing to do.”

It would be interested to ask Fred and the EFF what they actually have in mind here. The music industry has already been very clear that they see compulsory licensing in analog radio as having been one of their greatest setbacks/failures — and they made sure the DMCA took back as much as possible.

Was this a real proposal, or a way to try to play politics with the RIAA, trying to make them look foolish?

Update: I see that Donna’s got links, most notably to the EFF position page.

I think I still stick with my earlier comment — the record companies have seen the compulsory license in radio as a huge giveaway on their part, and the digital performance rights provisions in the DMCA are a specific effort to redress that "wrong." They’re not about to accept this, and they have aggressively tried to reframe the discussion around the idea that compulsory licensing is about putting a government agency in charge of something that should be the market’s business — an argument that failed when the 1976 copyright act bill was up for discussion, but has far more power in today’s political climate.

In other words, it might make sense, but it ain’t gonna happen — the record companies are going to have to see continued declines in sales and continued increases in sharing. Right now, they’re telling themselves that their strategies are working. Until the walls start crashing in on them, they aren’t going to go for this.

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Why Consumer Electronics != Specialized/Media Computers [7:59 am]

While this article is ostensibly about a TiVo for radio, what it really describes is just how difficult it is to merge the computer systems designer mindset with that of the consumer electronics market. It takes more than a concept to get to a successful product: After TiVo, Radio Rewound.

I had a brief e-mail exchange with a student yesterday on this very topic, as a followup to the posting on an academic looks at iPods. This kind of article shows why, in fact, the transition of the computer business from office machines to consumer electronics may lead to a rethinking of the notion that hardware becomes a commodity and all the profit has to come from somewhere else. In the current IP climate, the value of industrial design, particularly when tied to proprietary operating systems and software, may be a new winning combination.

But wait, there’s more. The RYW can also play MP3 music files from your computer and even act as an external PC hard drive for transporting data files from place to place. All of this comes in a package about the size of a deck of cards for $150 (for the 32-megabyte model, which holds 4.5 hours of recordings) or $200 (128 megabytes, 18 hours). Both models accept Secure Digital memory cards that can hold even more recordings.

The bad news is that, well, that’s all the good news. Despite the overwhelming brilliance of the concept, the rest of the story is all downhill.

The first devastating discovery is the recording quality. Now, MP3 music fans measure quality in kilobits per second (Kbps), a gauge of how much computer data is used to represent the music. They record music at 192 Kbps for great quality; 128 Kbps to save space on their music players, at some cost to sonic quality; and 96 Kpbs when they just want a beat to jog to.

By contrast, the RYW records in mono, and at - get this - 32 Kbps. Recorded music sounds like muffled party tunes coming through your wall from the apartment next door.

Talk radio doesn’t suffer nearly as much. It still sounds much duller than the original broadcast, but it’s tolerable. As Captain Kirk might say, “Set expectations to Low.”

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Battle of the Apples [7:38 am]

From Today’s Boston Globe: Business in Brief

The two Apples open court battle

Apple Computer and the Beatles’ record company, Apple Corps, went to court in Britain yesterday over who can use the Apple name now that the computer company has entered the Internet music business. The companies reached a deal in 1991 after a fight over the trademark. But the record company says the computer company broke the agreement by using the Apple name to market its new iTunes Internet music service. Apple Computer asked a court to rule that the battle should occur in California courts. Its lawyer said the 1991 agreement allows Apple Computer to use the name for data transmission, including music. (Reuters)

See also the reuters article: Apple War Pits Beatles Label Against Computer Maker [via GigaLaw]

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February 25, 2004

Litman Interview at GrepLaw [1:45 pm]

Via Copyfight: Jessica Litman on Redesign of Copyright

Note also that Donna’s link points to an H2O discussion on the History of Intellectual Property in the U.S. — a reading group that I hope I’ll be able to stay on top of! First reading is Carla Hesse’s The rise of intellectual property, 700 B.C. — A.D. 2000: an idea in the balance

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K Chronicles on Gay Marriage [9:05 am]

Too funny: Happy!! Happy!! Gay!! Gay!!

And see Ernest Miller’s look at potential consequences of a federal constitutional amendment as advocated by our president: Why the FMA Would Be the Death of Marriage

Imagine if the FMA were passed and the Massachusetts courts had to address the issue again.

Undoubtedly, the unequal treatment would still be repugnant to the equal protection measures of the Constitution of Massachusetts. However, Massachusetts courts would be forbidden from requiring that marriage rights be given equally to homosexuals. However, this would not prevent the Massachusetts courts from declaring that marriage itself must be abolished to correct the disparate treatment. The FMA prevents homosexuals from having the same privileges as heterosexuals. It does not prevent heterosexuals from having their privileges taken away to make them equal to homosexuals.

After “marriage” was abolished, there would be no constitutional issue in Massachusetts establishing an equal rights friendly “civic union” law.

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An Academic Looks at Portable Digital Music [8:59 am]

An entertaining interview from Wired News: Bull Session With Professor IPod. As new owner of an iPod myself, it’s interesting to read about his studies into the culture of the digital media player,

One of the interesting things is that with vinyl, the aesthetic was in the cover of the record. You had the sleeve, the artwork, the liner notes. With the rise of digital, the aesthetic has left the object — the record sleeve — and now the aesthetic is in the artifact: the iPod, not the music. The aesthetic has moved from the disc to what you play it on … and the iPod mini will appeal to those who want an artifact for style….

The other thing is that there’s a lot of illegal downloading. Half the people I’ve talked to so far download music illegally. The investment they’re making is going into the artifact, not the music. The market is moving toward the artifact, not the music to fill it.

(Bull noted that a lot of users reported they stored a few “perennial favorites” on their iPod but generally were constantly shuffling new music in and out, which may explain why they’re reluctant to pay for something they don’t “keep.”)

Update: Slashdot discussion — Professor iPod Discusses Device’s Social Impact; recap from Slashdot based on a BBC article: The Psychology Behind Headphones

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Tom Petty Takes the Plunge [8:46 am]

What will come of it? Tom Petty And The Heartbreakers’ Universal Music Catalog Goes Digital For Major Download Campaign

Fans of artist-approved digital downloads are about to claim a new hero — Tom Petty. Even as Rock and Roll Hall of Famers Tom Petty And The Heartbreakers continue to sell major numbers of albums the old-fashioned way — 1993’s TOM PETTY AND THE HEARTBREAKERS: GREATEST HITS was recently honored as one of the best-selling albums in history when it received the Diamond Award by the RIAA for sales of 10,000,000 units — they are now earning new and younger fans by making much of their catalog available for digital downloads.

The Universal Music Enterprises (UMe) Petty catalog is now available for digital downloading in the most significant and comprehensive artist-specific campaign of its kind for UMe. The catalog encompasses 99 different recordings spanning his career from 1976 to 1993 and heard on nine complete albums, including GREATEST HITS, plus other tracks. The first day the catalog was available cyber-wide, January 27, GREATEST HITS debuted as the #4 Most Downloaded Album on iTunes.

On March 2nd, Universal Music and Video Distribution will partner with Petty’s current record label, Warner Bros., in a unique cross-promotion to increase consumer awareness of the catalog’s digital availability. On that date, Warner Bros. will debut two previously unreleased live tracks by the band on Apple’s iTunes site, helping to drive fans to the site’s Petty catalog.

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The RSA Conference and DRM [8:38 am]

There are a number of articles out there on the conference going on — see this Slashdot posting for a way around them as it points to some new technology announcements: Buzzword du Jour: DRM

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The Register on the 321 Studios Injunction [8:33 am]

321 Studios to fight ripper injunction

In our view it is almost certain that the judge will grant the appeal and perhaps the stay, since legally there is a big issue going on here. In the US, although almost nowhere else, the right of a personal use copy of purchased entertainment has become enshrined in law. And yet the Digital Millennium Copyright Act states that it is illegal to bypass copy protection, even if it is to take a personal use copy.

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Another Wrinkle for Music e-Tailers [8:29 am]

CDNow, SightSound settle patent suit

Bertelsmann division CDNow has settled a long-running patent infringement suit with Net company SightSound Technologies, agreeing to pay $3.3 million to the smaller company. SightSound contended that it owned patent rights in the process of selling digital music downloads over the Internet.

SightSound said it viewed the settlement–which followed several court rulings in its favor last year–as a victory and that it would likely now approach other digital song and movie stores for license revenues. However, the settlement did not necessarily mean an end to patent disputes, since CDNow did not admit that it infringed on the patents as part of the agreement.

See also the press release: SightSound Technologies Successfully Settles Patent Case Against CDnow And N2K

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