Winning Paper from Yale Law School Cybercrime and Digital Law Enforcement Conference writing competition

The New Surveillance [via BoingBoing]


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?

Future of Music Coalition’s Policy Summit #4

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.

CreativeCommons @ Business2.0

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.

Yale Caves? Hmmmm

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 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.

Is the Movie Industry Learning?

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

More on Nintendo Music Performers

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.”

Some More (Of the Same Ol’) Record Biz

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.

CNet’s Rundown on iTunes

You can find several interesting articles at this link: A tale of two tunes

I was taken with this claim cited in the first article:

A recent Jupiter study found that 7 percent of people buying music players prefer files in Microsoft’s Windows Media format, versus less than 1 percent who prefer Advanced Audio Coding format.

If you go to the CNet article, what you actually get is:

The Jupiter Research survey also found that 20 percent of consumers said playing MP3 files is important, versus 7 percent who would prefer files in Microsoft’s WMA format and fewer than 1 percent who prefer the Advanced Audio Coding format, an open standard that was developed by the Moving Picture Experts Group and which is supported on Apple’s iTunes music store.

The power of selective quotation, IMHO