March 12, 2004

McD and Starbucks: Surveillance Required? [1:09 pm]

Ernie raises an ugly spectre in the face of today’s MacDonald’s and Starbucks postings: Can a City Require Surveillance Cameras in Cybercafes?

God I hope not. But apparently, according to this article, that’s what the City of Garden Grove, CA tried to do.

Update: Ernest Miller points out that there are wheels within wheels for this particular case. His analysis goes into many of them: CyberCafe Ordinance Decision - First Amendment Victory - Privacy Defeat. His conclusion in the immmediate case is that only places that rent time on computers are subject to the current ordinance.

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It’s Friday: Balkinization Posting [11:59 am]

I get the feeling Jack Balkin has had a week like mine: Bush Endorses New Constitutional Amendment to Protect Democracy

Because the Federal Marriage Amemdment seems not to have taken off, the Administration is offering this carefully worded substitute, the Protection of Democracy Amendment:

Democracy in the United States shall consist only of the union of one Republican candidate and one Presidency. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that Presidential status or the legal incidents thereof be conferred upon non-Republican persons or groups.

Presidential spokesman Scott McClellan explained that the new amendment will ensure that “the wrong sort of people don’t hold power in our freedom loving democracy.” When asked to specify who the “wrong sort of people” were, he replied, “I didn’t say that.”

Attorney General John Ashcroft stated that the Administration had tried unsuccessfully to convince the courts that only Republicans could be members of the federal government on the basis of Article IV, section 4 [I picked a faintly different link than Prof. Balkin's here], the so-called Republican Government Clause, which states that “The United States shall guarantee to every state in this union, a republican form of government.” “As I’ve said to the courts over and over,” Ashcroft explained, ” what part of the word “republican” don’t you understand?”

McClellan added that “because unelected judges have refused to read Article IV according to its plain meaning, and because unnamed persons have insisted on running for the Presidency and garnering significant public support, it is now necessary for the President to get behind this new amendment.”

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Doc Searls’ Links [10:45 am]

Doc Searls has some strong comments and links on the ongoing "decency" push, with a headline that summarizes the threat: House fucks broadcasting

Moreover, he links to a current article in Reason: The Music Never Stopped:

Recordings depend on music, not vice versa

Despite record-mogul fear mongering about the sounds of silence that will descend if they can’t sell you $18 CDs, you can’t tell me people won’t still perform music — and even reproduce it in forms that people might be able to pirate — merely because they won’t be able to make a healthy living at it.

There are no more AFM bosses like Petrillo, who in the ’30s had enough clout to make all the radio stations in Chicago hire union musicians to flip records. But as the moribund music site MP3.com proved in its heyday, there are tens of thousands of people making their own music and yearning for an audience, though not necessarily a paying one. Music was a vital part of human culture long before anyone was able to mass reproduce and sell recordings of it. And music will survive any number of upheavals in the systems for selling recordings that developed in the last century.

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Derek on Today’s Section 115 Hearing [10:38 am]

Derek runs down al the key players and links in today’s hearing on compulsory licensing: Hearing on Section 115

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P2P United Asks For Audible Magic Testing [10:33 am]

P2P Trade Association Calls On “Big Five” To Make Troubling And Unverified Software Available For Independent Testing

P2P United has written individually today to the Chairmen/CEOs of the five major recording companies whose subsidiaries comprise virtually the entire membership of the RIAA, requesting that they take immediate steps to make Audible Magic software (touted by the industry as a solution to unlawful downloading) available for independent testing and analysis.

Well, not exactly. The press release goes on to challenge the premises upon which Audible Magic has been marketing its product. For example:

Specifically, the group called on [Audible Magic's CEO] Mr. Ikezoye to:

  • cease misleading the public and policy-makers by characterizing your “fingerprinting” software as a “filter” as if it might simply be installed – like Net Nanny and other true popular content screening software — without the forced and fundamental redesign of decentralized peer-to-peer programs;

  • clearly state whether your surveillance software will be warranted to block only unlawful peer-to-peer communications and, if not, what liability Audible Magic believes that it should have for improperly blocking lawful communications (e.g., messages that make fair use of copyrighted material in connection with an online course on American Popular Music);

  • indicate whether Audible Magic believes that its fellow software developers in the peer-to-peer industry should be required to re-engineer their products to accommodate not only every successive generation of Audible Magic’s program, but also every successive generation of every other program like Audible Magic’s that exists now and may be developed in the future by Audible Magic’s competitors;

  • and clarify whether it is Audible Magic’s contention that its product, and its product alone, should be adopted as a technological mandate for all peer-to-peer communications and, if so, whether Audible Magic also believes that such a mandate should apply to other popular forms of electronic communication, such as conventional e-mail and instant messaging. If not, why?

For background, see near the end of Ernest Miller’s recent post

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Nintendo Handheld Emulator Patents [9:56 am]

Slashdot reports that Nintendo is getting ready to crack down on emulators, based on patent #6,672,963 : Nintendo Patents Handheld Emulation, Cracks Down

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Starbucks Music Download Service [9:50 am]

Starbucks Tunes In to Digital Music [Via The Register]

Here’s a deal: Sip on a mocha latte while using headphones to listen to any of 250,000 songs you call up on a computer. Then order the ones you like — burned on your own CD — to go. Who’s the dealer? Starbucks (SBUX ).

BusinessWeek has learned that on Mar. 16, the Seattle coffee giant will unveil an in-store music service allowing customers to do just that, using Hewlett-Packard (HPQ ) tablet computers to make their choices. The first musical Starbucks opens in Santa Monica, Calif., and the service will expand into 2,500 stores over the next two years. “This is not a test,” says Starbucks Chairman Howard Schultz. “We’re going for it.”

[...] Starbucks execs also tout this as an opportunity to introduce people to new and more obscure music and artists. At the very least, being able to listen or buy music in a Starbucks café will enhance the company’s core business and keep customers coming back. “The time it takes you to order a latte, you could have any CD burned on demand for you,” says Don MacKinnon, vice-president for music and entertainment for Starbucks. “That’s truly transformative and unlocks for so many people a need that’s not being served — making it easier to learn about music, easier to get it, and easier to create your own compilations.”

Update March 14: Slashdot discussion, Burnt Coffee and Burnt CDs

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Red Swoosh Reaches Out To BitTorrent [9:39 am]

Legal P2P networks gaining ground

While prominent peer-to-peer companies such as Kontiki and Groove Networks have focused on business applications, Red Swoosh has kept its eyes on entertainment and consumers.

In part, that’s why the company’s CEO is now reaching out to the broad community of people using BitTorrent, an underground file-trading application using similar technology that has exploded in popularity among people distributing or downloading video and software programs.

Red Swoosh CEO Travis Kalanick said he wants to tap that energy. He’s offering free use of Red Swoosh’s content distribution services to noncommercial filmmakers, game developers or other publishers.

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Webcasting Royalty Details Released [9:35 am]

Feds hand out Webcasting rules

The U.S. Copyright Office on Thursday released details about how Webcasters will pay royalties to record labels. The rules say that digital music services must compile and submit information such as the artist name, album title, and how many times the recording was transmitted to listeners.

In a nod to Webcasters, which had objected to some suggestions from the Recording Industry Association of America, the Copyright Office did not require reporting of the length of the recording and the release year. SoundExchange, a music industry group, reacted by criticizing the Copyright Office for not making its rules retroactive to 1998 and for not specifying exactly how the Webcasters’ reports must be formatted.

Related: Webcasters Slam RIAA And CARP Reform Bill

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McFi? [9:28 am]

McDonald’s Wi-Fi recipe could define industry

McDonald’s has been testing Wi-Fi in partnership with three rival providers since July of last year and is expected to announce its long-term partners, its pricing scheme and the locations that will offer the service as soon as this month.

The fast-food giant’s entry into the hot spot service market could supersize the industry when McDonald’s begins offering the service nationwide. Cometa Networks, Toshiba’s SurfHere and Wayport are vying for the business, and the company’s decision could dramatically boost the winners’ prospects.

[...] Although it does not plan to install the service in all its locations, McDonald’s would be the largest potential partner for a hot spot operator in the United States. The chain is using an ampersand (@) with an M in the middle as a logo to help hot spot subscribers identify locations that offer the service.

[...] A side benefit for McDonald’s could be improved store management, something Starbucks has experienced.

Starbucks district managers have used the hot spot service to log into the corporate network from stores to order new supplies for each store and update sales data.

“One manager said to me that (hot spot service) was the single best thing they’ve been given to improve their productivity with the company,” Saunders said.

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Datapoints on Creativity: What Is Art? [8:57 am]

Artifice Can Be Art’s Ally as Well as Its Enemy

The artificiality that purists deplore may lead to entirely new kinds of art. If Ms. Spears isn’t singing much in her show, that liberates her to cavort about lasciviously and to interact efficiently with all that fancy lighting and stage machinery. What was music (folkies in plaid shirts strumming on acoustic guitars) can now be an extravaganza, the glitzier the better. Less is more has become more is more.

Those who prefer folk or blues singers find the operatic voice itself, even unamplified, to be highly unnatural. Operatic technique takes a natural voice and transforms it into something ornate and, to nonopera lovers (or opera nonlovers), weird. Some people are now so used to electronic coloration and amplification that they find that natural, or at least beautiful. John Adams’s inflections of acoustic orchestral instruments with electronic coloration and synthesized sound are a good example.

[...] Perhaps the real issue is deception. If a baseball slugger has taken steroids, why not at least say so? Everyone else does it, some players have claimed, and not everyone who takes steroids hits 73 home runs. If Ms. Spears lip-syncs, why not laughingly concede it and move on? At least the New York City Opera has been upfront about its doctoring of the State Theater acoustics.

But maybe, for all our moral posturing, we like a little mystery in our art, or even our sports. If everything were clear and aboveboard, what room would there be for skulking secrets, for the veiled obscurities of art? I have nothing against unamplified voices or pop singers who sing out tirelessly or unmodified athletic bodies. I just think there may be room for artistic deception, as well: artifice as well as austerity.

C.f., Janet Jackson, Almost Live!

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Technological Alienation [8:45 am]

Note the ironies in the way that RealTime is employing labor law: Synthesizer Maker Fights Musicians’ Union

A Manhattan company that makes a so-called virtual orchestra machine, an advanced synthesizer used to mimic the sound of live musicians, has filed an unfair labor practice claim accusing the Broadway musicians’ union of unfairly preventing theater and music companies from using its product.

[...] At the heart of the complaint is a deal the union announced in February with the Opera Company of Brooklyn to ban the use of the machine in all future productions.

In a statement released on Realtime’s Web site yesterday, the company said that the union’s deal violated federal labor laws and that the union’s “open hostility and false accusations” had hurt its business.

“It is illegal for 802 in their effort to procure more business for its members to ban the Opera Company of Brooklyn to do business with a third party, namely us,” said Jeff Lazarus, the chief executive of Realtime.

Leonard Leibowitz, a lawyer for Local 802, denied that the union had done anything wrong in drafting a contract requiring live musicians. “The purpose of the language is to preserve work for union members,” he said. “It is perfectly legal.”

"Shoes for industry!" (or not)

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