March 31, 2004

NYTimes on the Surround Sound MP3 Format (Now with DRM!) [10:47 pm]

All the World’s a Soundstage as Audio Formats Evolve

Few paid music services use MP3 because, unlike most other formats, it does not have a built-in digital rights management mechanism to restrict copying and swapping, although companies can add that capability. That same trait, of course, has made the MP3 format wildly popular for ripping music from CD’s to compressed files and swapping them over the Internet.

But the surround-sound version of MP3 is unlikely to have much appeal to swappers because, unlike conventional stereo CD’s, the Super Audio and DVD Audio discs that contain surround-sound music use formats that prevent ripping.

Dr. Herre of the Fraunhofer Institute said he had just begun speaking with record labels about using the MP3 Surround format for legal downloading. The Recording Industry Association of America, which is pursuing an aggressive legal battle against music trading, has not taken a position on the format.

Another seeming barrier for surround sound in MP3’s or other formats is that the main devices using them - portable music players - have only two speakers: the left and right headphones. So some manufacturers view the issue of surround sound as largely irrelevant.

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HR 2517 — Piracy Deterrence and Education Act of 2004 [10:02 pm]

Feds Crank Up Heat on P2P; House panel approves copyright bill [IPNewsBlog has the DoJ press release]

The Justice Department said on Wednesday it has formed an intellectual-property task force to analyze how the department addresses issues like piracy of software, music and movies.

Led by David Israelite, deputy chief of staff and counselor to the attorney general, the task force will also recommend what the Justice Department should do in the future to combat unauthorized use of copyright material.

“I have asked the task force to look at ways the department can strengthen and improve our efforts to combat theft of intellectual piracy,” said Attorney General John Ashcroft.

[...] The task force was created in the wake of criticism by some members of Congress that the Justice Department has not done enough to crack down on digital piracy. The announcement took place on the same day that a House judiciary subcommittee unanimously approved a bill that would punish file swappers with up to three years in jail for first offenses, and up to six for repeat offenses.

[...] If signed into law, the “Piracy Deterrence and Education Act of 2004” [H.R.2517] would be the first to punish file sharing with jail time. The bill also takes aim at camcorder copiers who sneak into film screenings. Anyone who “knowingly uses or attempts to use an audiovisual recording device in a motion picture theater” to copy a movie could face up to six years in jail.

Here’s the text of the bill. The CRS bill summary includes this provision, whose implications are a little difficult to track:

Amends Federal copyright law to make importation into the United States without the copyright owner’s authorization of copies and phonorecords of a work that have been acquired outside the United State an infringement of the exclusive right to distribute such copies or phonorecords, regardless of whether that work has been registered with the Copyright Office or recorded with the Bureau of Customs and Border Protection (BCBP) of the Department of Homeland Security.

CNet’s article: Ashcroft creates task force for copyright violations

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Digital Distribution of Movies [9:28 pm]

Films: Have Hard Drive, Will Travel

For years independent cinema has been a big-city phenomenon, the non-Hollywood movies available only in major urban centers and — perhaps — on cable.

Now a New York-based company is trying to take art-house movies to small cities around the country by relying on digital projection. The company, Emerging Pictures, has sent computer hard drives to theaters in five cities to coincide with the opening on April 1 of the Full Frame Documentary Film Festival in Durham, N.C.

The hard drives, which can be connected to inexpensive digital projectors, contain 10 digital films from the documentary festival. The movies will be shown simultaneously in theaters in Grand Rapids and Kalamazoo, Mich.; Lincoln, Neb.; Charleston, W.Va.; and Sarasota, Fla., in addition to Durham.

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A Look At MP3 Utility [6:00 pm]

The best ways to listen to MP3s in your car

Despite the fact that over 80 percent of Americans drive to work every day and millions have MP3 players, auto manufacturers and car stereo makers have done a rather dismal job of bringing digital downloads to the (non-information) superhighway.

If you want to take your music collection on the road, you have three basic options, and none of them is particularly good. Either you must connect your portable MP3 player to your car stereo (which inevitably requires wires, gadgets, and a fair amount of fuss) or you have to buy one of the MP3-friendly car stereo systems that installs a hard drive into the vehicle itself (which requires a considerable amount of cash). The low-tech alternative—burning a bunch of CDs—takes loads of time. Every option entails some sort of compromise, whether it’s inconvenience, price, or audio fidelity, so choosing the right system becomes a matter of picking the appropriate poison. Here’s a rundown of the possibilities.

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Slate On The Singer-Songwriter Mythos [5:50 pm]

Simply Simpson: Why pop songwriting’s not what it used to be - a look at the music business, sort of, but also a chance to slam Jessica Simpson and other pop poseurs. (Although these excerpts don’t show it, the article author does acknowledge the singer-songerwriters of the 1960s — ancient history to many, I know <G>)

Pop singers used to be mere entertainers; songwriting was largely the domain of professionals who rarely performed. Today, they want us to believe they’re auteurs—singers who are also capable of writing their own songs. [...]

Why this shift? Strangely, the celebrity gossip industry of the late ’90s and early 2000s may be responsible. Artists, especially those who are expected to talk about their latest creative effort in People and on Access Hollywood, need a story to tell, and an auteur makes for a better interview. Marketing yourself as a singer who bares her soul is much easier than marketing a singer baring a songwriter’s soul

[...] More than ever, record companies are looking to sell artists as auteurs. From a business perspective, singer-songwriters can save record companies money that would’ve been spent to pay professional songwriters. Pop stars are able to cash in on the fat royalty checks earned from their songwriting credits and enjoy the recognition that they gain from their creative endeavors. And the camp of pop singers not as lyrically inclined can reap the same benefits by purchasing material from an independent writer and pawning it off as their own—a longtime practice in the industry, for which Elvis was infamous.

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Free Culture Book Club [4:01 pm]

I have my copy of the book, but am too swamped to read it yet. For those of you who are, as well as those of us about to, Prof. Solum’s online book club is a terrific resource. So far:

  • Monday, March 29–Preface, Introduction, & Chapter One (pp. xiii-30).

  • Tuesday, March 30–Chapters Two & Three (pp. 31-52).

  • Wednesday, March 31–Chapters Four & Five (pp. 53-80).

  • Thursday, April 1–Chapters Six, Seven, Eight, & Nine (pp. 81-115).

  • Friday, April 2–Chapter Ten (pp. 116-174).

  • Monday, April 5–Chapters Eleven & Twelve (pp. 175-212).

  • Tuesday, April 6–Chapters Thirteen & Fourteen (pp. 213-256)

  • Wednesday, April 7–Conclusion & Afterword (pp. 257-306)

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Canadian Opinion Online [3:37 pm]

T-292-04 (Citation: 2004 FC 488) Decision rendered on March 31, 2004, IN THE MATTER OF BMG Canada Inc. et al v. Jane Doe et al (see Just In From Canada for news articles)

It looks like the judge really rips into the CRIA’s presentation — that they really failed to make the case at any level. (Update: Ernest’s reaction seems to be similar to mine: An Unenthusiastic Response to the Canadian Filesharing Decision)

On the basis of the foregoing, it is obvious that in my mind the plaintiffs have not:

  • made out a prima facie case (their affidavit evidence is deficient, they have not made a causal link between P2P pseudonyms and IP addresses and they have not made out a prima facie case of infringement);

  • established that the ISPs are the only practical source for the identity of the P2P pseudonyms; and
  • established that the public interest for disclosure outweighs the privacy concerns in light of the age of the data.

Consequently, they have not met the test set out in paragraph 13 above.

On the other hand, there are indications that their pleadings might have worked if they had been more diligent. For example, against the privacy criterion:

In this case, the plaintiffs have a legitimate copyright in their works and are entitled to protect it against infringement. However before making the order, the Court evidently must be satisfied that the information about to be disclosed is reliable and should restrict disclosure to the minimum required for the plaintiffs to identify an alleged defendant. Any order made should also, having in mind the privacy interests of the defendants, be accompanied by restrictions and confidentiality orders as the Court sees appropriate. All of the ISPs have indicated that they can produce the required information if requested in a timely fashion. In this case the evidence was gathered in October, November and December 2003. However, the notice of motion requesting disclosure by the ISPs was not filed until February 11, 2003. This clearly makes the information more difficult to obtain, if it can be obtained at all, and decreases its reliability. No explanation was given by the plaintiffs as to why they did not move earlier than February 2003. Under these circumstances, given the age of the data, its unreliability and the serious possibility of an innocent account holder being identified, this Court is of the view that the privacy concerns outweigh the public interest concerns in favour of disclosure.

Or, the failure to establish that the ISP is the only source of the information includes instructions on how to go about doing so:

In this case, the alleged wrongdoers used software called KaZaA, KaZaA Lite or iMesh which they downloaded from websites by those names. The affidavits of Gary Millin and Kathy Yonekura do not at any point mention who operates these websites, where they are located or whether the name of the pseudonyms can be obtained from the operators of these websites. In the absence of such evidence the Court cannot make a determination as to whether or not the ISPs are the only practical source of information available to the plaintiffs.

Or, as Prof. Geist is quoted in the news articles, there’s recourse to the legislature:

The mere fact of placing a copy on a shared directory in a computer where that copy can be accessed via a P2P service does not amount to distribution. Before it constitutes distribution, there must be a positive act by the owner of the shared directory, such as sending out the copies or advertising that they are available for copying. No such evidence was presented by the plaintiffs in this case. They merely presented evidence that the alleged infringers made copies available on their shared drives. The exclusive right to make available is included in the World Intellectual Property Organization Performances and Phonograms Treaty, (WPPT), 20/12/1996 (CRNR/DC/95, December 23, Page: 16 1996), however that treaty has not yet been implemented in Canada and therefore does not form part of Canadian copyright law.

So, interesting reading all around…

Update: CNet News’ Judge: File sharing legal in Canada; also, The RegisterFile sharers not guilty of copyright infringement - Canadian judge

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SJ Mercury News on How the RIAA Uses P2P Nets [3:17 pm]

BigChampagne and the record industry — Music labels use file-sharing data to boost sales [via Copyfight] [pdf]

Record-label executives discreetly use Garland’s research firm, BigChampagne, and other services to track which songs are traded online and help pick which new singles to release. They increasingly use such file-sharing data to persuade radio stations and MTV to give new songs a spin or boost airplay for those that are popular with downloaders.

Some labels even monitor what people do with their music after they download it to better structure deals with licensed downloading services. The ultimate goal is what it always has been in the record business: Sell more music.

“I know of a case where an artist had obviously gone with the wrong single, and everyone loved this other song they had on their record,” said Guy Oseary, Madonna’s business partner and head of her label, Maverick Records. “In the world of what we do, it’s always good to have real information from real fans.”

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Just In From Canada [3:04 pm]

Judge: Sharing music via networks legal in Canada

Making copyrighted music available for sharing on a computer network is not illegal in Canada, a federal judge ruled on Wednesday, handing the record industry a sharp setback in its international fight against file swappers.

Canadian record labels had asked the court for authorization to identify 29 alleged file swappers in that country, in preparation for suing them for copyright infringement, much as the Recording Industry Association of America has sued more than 1,500 people in America.

But the judge denied that request. In a far-ranging decision, the court further found that both downloading music and putting it in a shared folder available to other people online appeared to be legal in Canada.

“The mere fact of placing a copy on a shared directory in a computer where that copy can be accessed via a P2P service does not amount to distribution,” Judge Konrad von Finckenstein wrote.

Nothing online that I can find yet at the Federal Court of Canada WWW sitehere’s where the decision will eventually appear. For some background, CRIA’s press releases are here

Slashdot: Music Industry Loses In Canadian Downloading Case. The source article cited there includes the following:

Some lawyers were saying the music industry might have hurt its case through legal sloppiness, Akin said.

“They really didn’t have their t’s crossed and their i’s dotted. They would likely go back and assemble the evidence the judge said was missing. The judge said clearly there’s some tests that have to be met, and the record industry failed to meet those tests.”

Once they do that, the industry can resubmit its case. Until then, Canadian online music traders are free to keep swapping songs, Akin said.

Other articles: Toronto Star–Court rejects music copyright suit

“No evidence was presented that the alleged infringers either distributed or authorized the reproduction of sound recordings,” von Finckenstein wrote in his 28-page ruling. “They merely placed personal copies into their shared directories which were accessible by other computer users via a P2P service.”

He compared the action to a photocopy machine in a library. “I cannot see a real difference between a library that places a photocopy machine in a room full of copyrighted material and a computer user that places a personal copy on a shared directory linked to a P2P service,” he said.

CNews: Judge: File swapping not illegal

Update: see this later entry for the opinion and more news.

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A Really Good Question [11:05 am]

Siva asks a really important question (Why is it a university’s business to restrict file sharing?) as his way of pointing to to this Chronicle of Higher Education article: Many Colleges Fail to Create Antipiracy Policies to Curb File Sharing, Report Says Siva also points to the report, University Policies and Practices Addressing Improper Peer-to-Peer File Sharing, whose conclusion embeds a certain notion of “mission creep” for the business of universities that is troubling:

The problem of unauthorized P2P file sharing is a significant problem on many college and university campuses. Much of the activity may be unlawful, and it can interfere with the use of campus computer networks for academic purposes. The collective impact of unauthorized file sharing is believed to be harming the entertainment market from which file sharers wish to draw enjoyment, a market that includes creators and artists as well as companies. A concerted and sustained effort by colleges and universities to substantially reduce or eliminate unauthorized file sharing through multifaceted efforts — by continuing education activities, use of network management technologies, and the development of legitimate online entertainment delivery alternatives — holds considerable promise of success. The Joint Committee of the Higher Education and Entertainment Communities will continue to try to assist work in all of these areas. [emphasis added]

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Speaking of Privacy [10:34 am]

Jason Schultz has a great discussion of Posner’s "skillful Googling" quote over at Copyfight: Judge Posner: “Skillful Googlers” Reason to Preserve Privacy in Abortion-related Medical Records

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Back to the ESD Symposium [9:17 am]

But I hope this is the last day of weak postings here for a while (well, until I go on vacation next week!)

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An SCO RoundUp [9:08 am]

A big day yesterday — here are a few links to chase:

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More DVRs Coming [8:28 am]

Study: DVR adoption on the rise

The rising adoption of DVRs–which use a hard drive to record television shows–has much to do with the competition between cable and satellite television providers. Initially, satellite providers promoted DVR-equipped set-top boxes to match cable companies’ investment in video-on-demand, and now, the cable industry is being forced to respond, IDC said.

[...] While the DVR market in Western Europe resembles that of the United States, Japanese consumers are starting to look to combination DVR/DVD-recording devices. Those hybrids will see shipments of 11.8 million in 2008, adding up to nearly 40 percent of the worldwide market, with the vast majority of the shipments occurring beyond the U.S. market, IDC said.

Wonder how the broadcast flag will influence the sales of those devices in the US?

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Another New Tool [8:26 am]

Will it get the same degree of scrutiny about legal and illegal uses that other technical innovations have? Oracle joins race to bring RFID to retailers and Oracle unveils next round of RFID solutions. For example, there’s this application: Passport Safety, Privacy Face Off, raising the interesting question of the extent to which "information will set you free"

An international aviation group is completing new passport standards this week, setting the groundwork for all passports issued worldwide to include digitized photographs that a computer can read remotely and compare to the face of the traveler or to a database of mug shots.

Supporters hope the system will banish fake passports and help fight terrorism. But critics say the standards will enable a global infrastructure for surveillance and lead to a host of national biometric databases, including ones run by countries with troubling human rights records.

[...] The ICAO has already settled on facial recognition as the standard biometric identifier, though countries may add fingerprints or iris scans if they wish. The standards body will vote on Friday whether to adopt radio-frequency ID chips, such as those used in Fast Pass toll systems, as the standard method of storing and transmitting the digitized information.

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A Part of the Emerging VoIP Battle [8:20 am]

Raising the question: is embracing a strategy to get around CALEA by exploiting the “information services” exemption a winning strategy, or just one that gives the DoJ incentive to fight even harder to eliminate the exemption?: VoIP provider to block eavesdroppers

VoicePulse said the new feature will prevent electronic or traditional eavesdropping on customers’ phone calls. It encrypts the part of the call that travels alongside other data on the public Internet, the first time this approach has been taken by a commercial voice over Internet Protocol service provider (VoIP), according to VoicePulse.

VoicePulse President Ravi Sakaria said he believes the company’s competitors, which now include AT&T, will also make it standard to protect the data in calls from being captured by outsiders. He said it will ease privacy concerns, satisfying current subscribers and making voice calling over the Internet more palatable to potential business customers.

“Encryption will not cost extra, and we do intend to encrypt every call on all plans,” Sakaria said. “As a service provider, we feel that providing encryption is a requirement, not an option.”

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NYTimes on the IFPI Suits [8:07 am]

The article, Fight Against Illegal File Sharing Is Moving Overseas, implicitly raises the question of how those countries that have not yet complied with the EU Copyright Directive might respond in the face of this initiative, particularly combined with the absence of “legal” alternatives in many European jurisdictions. The Mark Mulligan hyperlink takes you to his weblog entry on this subject.

The nature of the industry’s campaign - it announced no lawsuits in Britain or France, nor any in Asia - attests to the patchwork of copyright laws outside the United States. While the European Union has passed a uniform copyright protection law similar to that in the United States, it has yet to be ratified by all of the union’s current 15 member states.

The existing cases are being prosecuted under national laws, Mr. Berman said. He predicted that lawsuits would be filed in other countries, but said the timing is dependent on stricter enforcement of copyright protection.

[...] Critics of the lawsuits said the piecemeal approach would bewilder consumers, particularly in Europe.

“People won’t understand the message,” said Mark Mulligan, an analyst at Jupiter Research in London. “If you’re file sharing in Germany, you’re in trouble. If you’re file sharing in Spain, you’re fine.”

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Two Reuters News Pieces On Yesterday’s News [7:55 am]

  • Maybe the Music’s Just Lousy?

  • On the IFPI lawsuits: French Hound Music Pirates (while ordinarily I would look upon this title as an indication of Wired’s ideology, the fact that it’s a Reuters news wire article probably is a reflection of the fact that it’s about a French announcement)

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“Bray”ing from the Boston Globe [7:43 am]

Although he seems to be trying to be even handed, it’s clear where Hiawatha Bray stands on technological alienation and the DMCA (for those who were there, recall the discussion of transparency at Alan’s talk yesterday): Software pirates chip away at gaming industry revenue [pdf]

Like other DVD players, the game consoles contain chips that restrict their functions. American PlayStations and Xboxes won’t show foreign-made DVD movie discs or play overseas-produced games. Want to play a cool game you saw in Tokyo? You must buy a Japanese version of the console to play it. And another thing — if you use a DVD burner to make a copy of a game, the copy won’t work.

[...] A mod chip is a piece of silicon that seizes control from a similar chip built into the game consoles. The standard chip contains software that sets all those annoying limits on the machine’s performance. But solder in a mod chip and install some software available for free on the Internet, and those restrictions disappear. Suddenly your PlayStation or Xbox can play any game produced anywhere in the world. You can use Internet file-swapping software to download dozens of games without paying a penny, or you can rent games at the local Blockbuster, make copies, and add them to your permanent collection.

“The modding of the XBox itself should certainly be legal; why shouldn’t I have permission to modify a piece of hardware I’ve paid for?” said Mark, a 33-year-old researcher in Iowa City who spoke on the condition that his last name not be printed.

Strictly speaking, he’s right. Modding a game console voids the warranty, but it’s no more a crime than flinging it against a wall. It’s your machine; do what you please.

Even game companies admit this. A Microsoft spokesman said that the company tracks the vendors of mod chips and takes legal action against them on a case-by-case basis. For instance, a company that simply sells blank chips that can be used to modify a console is doing nothing illegal. But if they sell the software that circumvents the game machine’s limitations, that’s a violation of a 1998 federal copyright law. Just ask David Rocci, a Virginia man who was sentenced to five months in prison last year for selling Xbox mod chips with illegal software included.

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March 2004
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