April 30, 2004

It’s Friday #2: You Own A Patent On What? [4:44 pm]

Beyond belief: Reality-TV human baby giveaway, pissed-off Uri Geller claims trademark breach

(Sorry, you just have to read the whole thing)

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It’s Friday: Analysis of the Google SEC Filing [3:35 pm]

Wired News: More Reasons to Love Google

My favorite:

Geek humor: If you take a close look at the form Google filed with the Securities and Exchange Commission, the exact value of its planned offering is $2,718,281,828 dollars, which some would immediately recognize as the mathematical constant e.

E [sic], for those not blessed with a Ph.D. and a job at Google, is Euler’s number, which is used as the base for natural logarithms.

See also, from the NYTimes - An Egalitarian Auction? Bankers Are Not Amused

For months, investment banks vied to win the job of underwriting Google’s much-anticipated initial public offering. But as details emerged yesterday about the unusual auction process that Google’s founders have chosen, questions have arisen about whether the scramble for a piece of the action was worth the trouble.

[...] Indeed, for Wall Street investment banks, the Google structure comes as a cannon shot across their collective bow.

As online stock trading has sharply reduced commissions over the last 10 years, the 7 percent underwriting fee is in many ways that last purely high-margin business on Wall Street - and it is a fee that bankers have guarded zealously.

[...] Google, in rejecting the traditional Wall Street way of going public, has also eliminated the ability of banks to allocate hot shares to their best clients, a practice that yielded windfall profits to favored investors during the technology boom.

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Copyright bills reported out of committee [3:05 pm]

Briefly: Senate to mull copyright, piracy measures

The Senate Judiciary committee on Thursday approved four intellectual property bills, clearing the way for votes on the Senate floor. The measures would criminalize using camcorders in movie theaters; increase fees for patent applications; clarify existing law dealing with joint applications for patents; and permit the Justice Department to bring civil lawsuits against copyright pirates.

Chairman Orrin Hatch, R-Utah, said at the hearing he would delay a vote on a fifth bill that changes penalties for copyright infringement and increases reporting of computer hacking and copyright prosecutions. “I will hold the Hatch-Feinstein Enforce Act for an additional week as I understand that we will be able to achieve more consensus among stakeholders,” he said.

For you Thomas-fanatics:

Update: Slashdot discussion - Making The Justice Dept. A Copyright Busybody

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RIAJ Gets Busy [9:38 am]

The Recording Industry Association of Japan is ramping up: RIAJ started instant messaging toward P2P users to prevent illegal uploading of music files.

We are also carrying out the “Respect Our Music” campaign and other various educational activities on copyright. We have requested thorough management to the academic institutions and companies where illegal uploading acts were found. We also had sent letters to about 1,200 universities and junior colleges nationwide to call on the enhancement of their LAN management. Due to the effect of this, the number of illegal uploads on their networks has been decreasing.

However, there is no end of P2P users who upload music files illegally, so we started sending notices to individual users. Against certain malicious users, we are preparing to take legal actions. The number of IM sent will surpass 1 million by the end of May.

It is interesting to note that Japanese copyright law has some interesting differences when it comes to sound recording. From the RIAJ FAQ:

Q10 : What is the condition and impact of record rentals in Japan?

There are about 3,700 record rental shops in Japan and more than 85% of these rent records along with videos and game software. There are almost no shops that illegally rent records. The shops pay a use fee in accordance with their contracts and the system is working smoothly.

Q11 : How about music piracy?

There are basically no pirated copies of records produced in Japan. As for overseas, a recently widespread method for piracy has been utilized to obtain music via the internet, and made pirate CDs using CD-R burners. However, this type of pirated CD is not seen in Japan. The piracy problem for Japan is really a problem of unlicensed copying in Taiwan of Japanese music. The current problem involves is that these products being imported into and sold in Japan.

Q12 : Is there a system for protecting the right of records?

In Japan, the right of records are protected by the system of the neighboring right of copyright system. This includes exclusive rights of reproduction, transfer, making transmittable and lending; and the rights to claim secondary use fee (broadcasting fee of records) and the remmuneration for rental record (right following 1 year rental right), and the right to receive compensation for private audio and video recording. These rights are equally granted to record producers of the countries that are members of international conventions covering record rights.

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Another "Hey Ya!" Creation [9:21 am]

For you video game fans; 152896_hey_ya___VG_style_.swf

And my apologies for taking the links to "Hey Ya! Charlie Brown" down - you wouldn’t believe the bandwidth it took!

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An EU Copyright Ruling on Licensing & Competition [9:08 am]

From the NYTimes: Court Ruling in Europe Could Affect Microsoft

Although the final word in this case rests with a court in Frankfurt, Thursday’s judgment by Europe’s highest court clarified European law in this field, where intellectual property law and competition law meet.

The court said in a statement that a refusal by a dominant company to license its copyright to rivals breached competition law only if this prevented products or services from coming to market, or if such a refusal was “capable of eliminating all competition on the relevant market.”

[...] On Thursday, Microsoft said the court’s judgment “is a fatal blow to the commission’s compulsory licensing case” against it. Microsoft is planning an appeal of the ruling to the European Court of Justice within a couple of months. The commission, on the other hand, said that the judgment supported its ruling last month.

“We believe that these exceptional circumstances as set out by the court have been met in the Microsoft case,” the European Commission spokeswoman, Amelia Torres, said.

[...] One competition lawyer, who asked not to be named, said that if the court intended to require a dominant company to license its copyright only once the company had eliminated all its rivals, “This would render European competition law completely useless.”

See also InfoWorld’s Court clarifies antitrust law in Europe

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NYTime Editorial on iTunes [9:04 am]

What’s on Your Playlist?

Apple is likely to face increasingly stiff competition from other online music stores and from other makers of MP3 players. Its lead is not impregnable. But the iPod and iTunes have already begun to redefine the basic unit of music consumption. It used to be the CD. Now it is the song. Soon it will be the playlist, a personalized mix of musical tracks.

The iTunes Music Store already sells celebrity playlists — like a clutch of songs chosen, say, by Tom Petty or Sheryl Crow. And the new version of the iTunes software introduced this week offers users the chance to publish their own playlists seamlessly. We are entering a world of collective eclecticism, in which music lovers can guide one another into the hidden recesses of the library of recorded music.

Also, see Jason Schultz’ read on the recent iTunes "upgrade" - Meet The New iTunes, Less than the Old iTunes (FurdLog entries: iTunes Updates; CNet’s Rundown on iTunes)

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Thumbdrive Distribution [9:02 am]

Wired News: ‘Dude! This Thing Is Awesome!’

The technology is quite simple: The music fan goes up to the touch-screen kiosk after the show and buys the keychain drive with a credit card from a dispenser alongside the screen. Once that’s done, the miniature drive is inserted into a slot in the kiosk, and the recording — stored as MP3 files — is loaded onto the device’s 128-megabyte hard drive. That is enough space for 110 minutes of music.

A receipt for the transaction is sent to the concertgoer’s e-mail address.

“I can remember when I started the debate was whether the 45 or 33 would be more successful,” said Richard Gottehrer, author of hits like “My Boyfriend’s Back,” and “I Want Candy,” and chairman of The Orchard. “Now the Napsters of the world are yesterday’s news and this is the newer, legal, next step.”

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More on the MPAA/Junior Achievement Program [8:57 am]

And, according to Wired Magazine, things aren’t going as swimmingly as the MPAA would like: Wired 12.05: File-Sharing Is, Like, Totally Uncool

The point of the program, says MPAA spokesperson Rich Taylor, is for “students to reach their own conclusions about being a good digital citizen.” The real point, of course, is to protect Hollywood from the fate of the record industry. While the music business has already suffered from file-sharing, the film industry has so far been largely unaffected. In fact, according to an Adams Media Research report, Hollywood has seen revenue rise 27 percent in the same four-year period that the recording industry went into free fall. So consider this a preemptive attack, a giant guilt trip on the file-sharing public. Compared to the recording industry’s strategy to sue everyone in sight, “What’s the Diff?” seems downright enlightened.

Critics aren’t mollified. The program presents a “tremendously one-sided view of copyright,” says Wendy Seltzer, a lawyer for the Electronic Frontier Foundation. “There’s no balance; it’s entirely corporate driven. If anything, it’s an exercise in how efficiently you can brainwash students.”

Seltzer might be considerably less concerned had she sat in on a recent lesson at Commerce Middle School in a working-class neighborhood of Yonkers, New York. As in Santa Clarita, the kids here read their stock responses, but unlike their Californian counterparts, they do it in a sullen monotone, as if reciting some musty poem. Only the computer user, an animated wiseass in baggy jeans, delivers a passionate response. “It’s not hurting anybody. I’m not selling it. I’m using it in my home.” The other kids nod energetically at this, and hands shoot up throughout the room. One boy says, “If the computer user is just downloading music, how are the carpenters who work on movie sets being hurt?” The other students regard this as irrefutable logic, and a chorus of “mm-hmm” and “that’s right” fills the room.

A confident, articulate girl in cornrows and too-tight jeans speaks up. “Look, you preview what’s on the CD, and if you like it, you go out and buy the CD because you get a booklet and, like, extra stuff with it.” This, whether she knows it or not, is exactly the argument that the major music labels are hearing from many of their own consultants.

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And Technology Marches On [8:50 am]

File-swapping gets supercharged on student network

A new file-trading network has sprung up on Internet2, the university network that offers researchers and students a way to communicate at blazing speeds while avoiding the ordinary Internet’s data traffic jams.

Dubbed i2hub, the network has drawn thousands of students from universities around the country to trade files and chat at speeds that far exceed what even ordinarily swift campus networks can provide. It has drawn rave reviews on student Web sites and from users but has already sparked concern among other Internet2 denizens.

The students involved say they’re simply looking to use unused Internet2 bandwidth, which can be less expensive for their colleges than ordinary commercial Net connections. But some also see it as a way around limitations that many universities have begun to impose on widely used file-swapping applications such as Kazaa.

[...] Universities, most of which have strict policies against using their networks for copyright infringement, have begun installing software that blocks or limits the amount of bandwidth used by file-swapping applications. Some have begun investigating tools that actually look inside individual file trades, identify copyrighted music and block the transfers.

[...] Officials at the central Internet2 project said they had no theoretical objection to the students’ action, at least from the strictly technological side. The network was developed to spur innovation wherever it arises, much as users of the original academic networks developed e-mail and chat features, a representative for the project said.

[...] “Internet2 is for research. It’s not for downloading music,” said Marc Ray, a senior computer support specialist at Florida State University. He’s still evaluating the program, he said. “The fact is, (the network) cost a lot of money, and downloading games and music should be the last priority on any campus network. I think it’s borderline taking advantage of the system.”

Update Slashdot - Internet2 Plus P2P Equals…

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What If … ? [8:47 am]

What if media consolidation were greater? Would ABC’s Nightline even have tried this?

Some Stations to Block ‘Nightline’ War Tribute

Sinclair, which owns 62 television stations in 39 markets, also made news in September 2001, when it ordered news personnel at its Baltimore station to read patriotic statements supporting President Bush.

[...] Janet Weaver, dean of faculty at the Poynter Institute, an educational foundation for journalists, said she was surprised that anyone could find the mere reading of such a list a political act. “It is a piece of this reality,” she said. “It would seem to me you can read it as you read it, depending on your point of view. It’s really a Rorschach test.”

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April 29, 2004

That Didn’t Take Long [4:44 pm]

Slashdot: iTunes 4.5 Authentication Cracked

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Sloganator Lives! [10:02 am]

Posted at TechPolicy: The Sloganator — the linked Sloganator Memorial includes one that I searched for when I first posted on this, but could not find: "Master of Strategery."

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Winning Paper from Yale Law School Cybercrime and Digital Law Enforcement Conference writing competition [9:03 am]

The New Surveillance [via BoingBoing]

Abstract

A few years ago, it was fanciful to imagine a world where intellectual property owners - such as record companies, software owners, and publishers - were capable of invading the most sacred areas of the home in order to track, deter, and control uses of their products. Yet, today, strategies of copyright enforcement have rapidly multiplied, each strategy more invasive than the last. This new surveillance exposes the paradoxical nature of the Internet: It offers both the consumer and creator a seemingly endless capacity for human expression - a virtual marketplace of ideas - alongside an insurmountable array of capacities for panoptic surveillance. As a result, the Internet both enables and silences speech, often simultaneously.

This paradox, in turn, leads to the tension between privacy and intellectual property. Both areas of law face significant challenges because of technology’s ever-expanding pace of development. Yet courts often exacerbate these challenges by sacrificing one area of law for the other, by eroding principles of informational privacy for the sake of unlimited control over intellectual property. Laws developed to address the problem of online piracy - in particular, the DMCA - have been unwittingly misplaced, inviting intellectual property owners to create private systems of copyright monitoring that I refer to as piracy surveillance. Piracy surveillance comprises extrajudicial methods of copyright enforcement that detect, deter, and control acts of consumer infringement.

In the past, legislators and scholars have focused their attention on other, more visible methods of surveillance relating to employment, marketing, and national security. Piracy surveillance, however, represents an overlooked fourth area that is completely distinct from these other types, yet incompletely theorized, technologically unbounded, and, potentially, legally unrestrained. The goals of this Article are threefold: first, to trace the origins of piracy surveillance through recent jurisprudence involving copyright; second, to provide an analysis of the tradeoffs between public and private enforcement of copyright; and third, to suggest some ways that the law can restore a balance between the protection of copyright and civil liberties in cyberspace.

Update: EFF comments: The New “Piracy Surveillance” - Whither Due Process?

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Future of Music Coalition’s Policy Summit #4 [8:50 am]

Quite a lineup for the upcoming Policy Summitt

Now in its fourth year, the FMC Policy Summit is a forum for musicians, lawyers, academics, policymakers and music industry executives to come together to discuss and debate some of the most contentious issues surrounding digital technology, artists’ rights and the current state of the music industry.

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CreativeCommons @ Business2.0 [8:45 am]

Giving It Away (for Fun and Profit)

But what’s really interesting is that as more and more artists use Creative Commons to tell the world that it’s OK to copy, distribute, and build on their work, the first glimpses emerge of an economy based on the free exchange of digital content. The “sharing economy” is built on a supply-and-demand equation wholly alien to traditional media companies — the record labels, Hollywood studios, and publishing houses that support strict copyright enforcement. It’s powered instead by the Allan Vilhans of the world, digital artists who promote sharing as a means to obtain everything from 15 minutes of Internet fame to licensing deals, job offers, and mainstream publishing contracts. For these artists, rampant Internet file swapping isn’t a threat, but a blessing: the cheapest way to move from unknown to known.

[...] At a cafe near his San Francisco home, Lessig explains the economic logic that underpins Creative Commons. He draws a timeline on a napkin, labeling one point “1888.” “That’s when the first Kodak (EK) camera was introduced,” he says. “And around this time, a legal question arises: Do I need your permission to capture your image? The courts say no, I can pirate your image in most cases.” Lessig then draws a line that spikes upward, representing the boom in photo equipment and processing sales that resulted from the liberalization of image content. “Imagine if the decision went the other way, so that I had to get permission every time I took someone’s picture,” he says. “The growth of the photography industry would have been very different.” And much less lucrative.

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Yale Caves? Hmmmm [8:16 am]

Yikes! Cflix Teams With Musicnet To Power Music Service For Yale University

Cflix and MusicNet announced today a partnership that will dramatically improve the choices that college students have to access digital music. Cflix, a video on demand provider for universities, will launch a new offering, called Ctrax, to offer an economical, legal music alternative for students. MusicNet, the world’s leading online music service provider, will power the Ctrax service, which is available, starting today, as a pilot at Yale University. Cflix has been offering its media content to universities including Yale, Duke, Wake Forest and the University of Colorado for more than two years. MusicNet provides a full-scale, customizable digital music solution to some of the world’s biggest brands including AOL and Virgin.

MusicNet will provide Ctrax with a subscription service and download store featuring more than 700,000 tracks, original programming, playlists, and other features. Additionally, the Ctrax service will incorporate community features specifically for Yale University to provide an outlet for locally produced music and video. Yale University students will have access to the first production release of the service and test both functionality and aesthetics to provide feedback.

As many as 20 colleges and universities will be rolling out the Ctrax service for the fall of 2004. Ctrax works through the university’s local area network, with files stored locally to deliver faster and more reliable music content. The Ctrax service will be available for below market prices, making it very appealing to the cost-conscious student population.

Note the local storage angle — another deployment of an MP3.com concept that was construed as copyright infringement at the time, but now there doesn’t seem to be a problem. Nothing like being early/late to the party…..

Missed this Reuters wire from CNet: MusicNet launches pilot download service at Yale And nothing at LawMeme about this. Maybe Ernest has some contacts that can shed some light on this.

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Is the Movie Industry Learning? [7:56 am]

While the movie industry is certainly guilty of excesses in their move toward the DVD, including the endless re-release of variants of popular films, there also are indications that they are giving serious thought to improving the value proposition through the use of the medium’s features (something that the record industry never seems to have managed, or even tried, with the CD format). See, for example, Lots of Bells and Whistles (DVD Included)

With DVD releases of movies becoming as competitive as traditional theatrical releases for viewer dollars, Hollywood producers say they are increasingly looking to eye-popping technologies to make their DVD’s stand out.

“There are certain expectations the market has now,” said Steve Beeks, the president of Lions Gate Entertainment. “The most popular are alternative endings and deleted scenes, stuff you would not originally see in the film.”

But even those features have become commonplace extras on DVD’s. So when Lions Gate was preparing for the release last week of its surfing documentary “Step Into Liquid,” it created a two-DVD set that included not only the film, directed by Dana Brown, but also a previously released video game, Kelly Slater’s Pro Surfer, on one of the movie discs.

[...] What’s more, the combined DVD and video game is selling for a suggested price of $25; the game alone, published last fall, is $30 at Aspyr’s Web site.

Karim Farghaly, director of strategic sales for Aspyr, said the advantage for the game maker was exposure to a different group of buyers, and a potential second life for the game. “We saw a very good opportunity in terms of extending our market reach,” he said. “We didn’t see any cannibalization in people actually buying the DVD instead of the game itself. They are two different markets.”

An added attraction of the DVD, a format with far greater space than the two CD-ROM’s on which the game alone is sold, is that it allows the game’s graphics to be enhanced, Mr. Farghaly said.

[...] Responding to many of the same competitive forces, New Line Home Entertainment has developed a series of DVD’s called Infinifilm that feature a number of viewer-driven video extras. The line will grow to 10 when versions of “The Butterfly Effect” and “Elf” are released later this year, said Mike Mulvihill, vice president for content development at New Line.

New Line, which is credited with creating “Easter eggs” - video features hidden on DVD’s, like the images furtively placed in some video games - maintains that it is important to offer the consumer more than a movie.

[...] “The concern is, in the future, will DVD’s be relevant?” Mr. Goodman said. The answer, he said, will depend on “making DVD’s more than just the experience of viewing movies.”

In a related article, see a discussion of the developing blue laser standards fight: Dueling Visions of a High-Definition DVD

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More on Nintendo Music Performers [7:46 am]

Cited earlier in Salon (NES Tunes At Clubs ), and although this article says nothing about the copyright issues, one can imagine an imaginative DMCA-based claim from what this article adds to the story: Resurrecting the Riffs, a Nintendo Rock Band

When Mr. Seim heard two Nevada Union High School classmates play a set of Nintendo cover songs at a talent show in 1999, he felt he had found his true calling. He joined the band on drums and began his career as a video-game-song cover artist. His video-rock band, the Advantage, consists of high school buddies (minus the original two members, who moved to Milwaukee). It plays nothing but music from the original Nintendo console games, most clocking in at under two minutes; a typical set list from the Advantage’s live show might include such chestnuts as “Double Dragon II Stage 2,” “Ghosts ‘n’ Goblins Intro” and “Castlevania Epitaph.”

While the tunes have a kitschy nostalgia appeal for listeners who were weaned on the games, the Advantage’s approach is respectful, even reverential, toward the original source material, much of it written by classically trained Japanese composers like Nobuo Uematsu, Koji Kondo and Yoko Shimomura. Mr. Kondo, Nintendo’s in-house composer, wrote the Super Mario Brothers theme and is regarded by aficionados as the Mozart of video game composers.

[...] To deconstruct the songs, Mr. McWhirter loaded the music files from the games onto a PC and ran them through a piece of software called Nosefart. Developed primarily by Matt Conte, a programmer who worked on games like Finding Nemo and Tony Hawk’s Pro Skater 3, the software is a plug-in that decodes files in NES Sound Format, or NSF, ripped from Nintendo games. It allowed the band to separate the component parts and listen to them at reduced tempos, allowing note-perfect facsimiles.

[...] “This music does weird things to people’s brains,” Mr. Seim said. “It takes me back to the days of eating mac and cheese at a friend’s house and learning the games. Good times.”

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Some More (Of the Same Ol’) Record Biz [7:27 am]

Madonna Goes to War, This Time in Court

“I find myself in the ludicrous position of being sued by my own record company, whom I have been loyal, industrious and reliable to for over 20 years,” Madonna said in a statement, her first comment since the two sides filed dueling lawsuits late last month. “For them to behave this way is nothing short of treason.”

[...] The object of the tussle is a boutique record label. Maverick, created in 1992, experienced its biggest success with Ms. Morissette, the singer and songwriter whose “Jagged Little Pill” (1995) has sold 14 million copies and is the one of the best-selling albums of all time, according to Nielsen SoundScan, which tracks music sales in the United States. Eight of the 10 albums from Maverick that have sold more than one million copies were released before the venture with Warner Music was renegotiated in 1999. Its roster also includes the singer and songwriter Michelle Branch and bands like Deftones and the Prodigy. In 2003 Maverick releases accounted for a little more than half of 1 percent of album sales in the United States.

Mr. Bronfman declined to comment on the suits, but Will Tanous, a company spokesman, issued a statement repeating Warner Music’s statement in the lawsuit that Maverick has been unprofitable for the last five years. In its complaint Warner Music says that Maverick has amassed more than $60 million in losses since 1999, and would have to repay $92.5 million before it could buy out Warner’s’ half of the joint venture.

[...] Among numerous charges, the Maverick complaint says that Warner Music manipulated figures to show that Maverick was losing money by not crediting it with the profits generated by the manufacturing, distribution and international sales of Maverick CD’s. If profits were properly accounted, Mr. Fields, a well-known Hollywood lawyer, said, they would show that Maverick has made $100 million for Warner.

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