June 17, 2004

CNET News on INDUCE [8:09 pm]

Antipiracy bill targets technology

The proposal, called the Induce Act, says “whoever intentionally induces any violation” of copyright law would be legally liable. In the draft bill seen by CNET News.com, inducement is defined as “aids, abets, induces, counsels or procures” and can be punished with civil fines and, in some circumstances, lengthy prison terms.

This measure represents the latest legislative attempt by influential copyright holders to address what they view as the growing threat of peer-to-peer networks rife with pirated music, movies and software. It was originally scheduled to be introduced Thursday by Sen. Orrin Hatch, R-Utah, but the Senate Judiciary Committee confirmed at the end of the day Thursday that the bill had been delayed. A representative of Senate Majority Leader Bill Frist, a probable co-sponsor of the legislation, said the Induce Act would be introduced “sometime next week.”

[... Jessica] Litman said that under the Induce Act, products like ReplayTV, peer-to-peer networks and even the humble VCR could be outlawed, because they can potentially be used to infringe copyrights.

OK — are we really planning to commit suicide? First stem cells, now digital technology? This is going to push every piece of digital technological innovation offshore — possibly permanently. After all, we’re not going to be able to draw the line at the software — eventually there’s going to be some clever lawyer who’s going to look at Intel’s, IBM’s or Motorola’s deep pockets and argue that the microprocessor is also implicated in “inducing” copyright infringement. After all, processor power is part of the picture. Will the 3 megahertz G5 cross the line? A G6?

Would the NRA put up with an identical theory — guns could kill people, so we need to make the producers of guns liable? Time to get serious — I look forward to (a) seeing who the co-sponsors are and (b) contributing to any opponent.

This kind of “know-nothing” pandering to the copyright cabal is too dangerous to let alone.

Test question: why does free speech get a more nuanced treatment? From International conference targets Internet hate speech [via Slashdot]:

U.S. Assistant Attorney General Dan Bryant acknowledged the American approach differs from that of other countries.

“We believe that government efforts to regulate bias-motivated speech on the Internet are fundamentally mistaken,” Bryant said. “At the same time, however, the United States has not stood and will not stand idly by, when individuals cross the line from protected speech to criminal conduct.”

He said the United States believes the best way to reduce hate speech is to confront it, by promoting tolerance, understanding and other ideas that enlighten.

See also Seth’s comments: INDUCE Act

Earlier Furdlog entry; Derek’s thoughts; Slashdot: Sen. Hatch to Introduce Wide-ranging Copyright Bill

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Oh, Boy [7:54 pm]

Copy-blocked CD tops U.S. charts

For the first time, the No. 1 album in the United States is loaded with anticopying protections, marking a clear step into the mainstream for the controversial technology.

According to figures released by Nielsen Soundscan, Velvet Revolver’s “Contraband” was the top-selling album in America last week, despite being prominently labeled on its cover as being “protected against unauthorized duplication.”

The success of the album is likely to prompt more experiments from BMG, the band’s label, and other record companies, industry watchers said.

I suppose the real test is whether (a) the copy protection works and (b) you can find the content on KaZaA or not. Something to research…..

Update (10:15PM): I’ve gotten an e-mail telling me that the album’s been available on Usenet for some time, so either a pre-release got out, or the DRM was cracked long ago

Later: From The Register — Lock-down CD scores No.1 hit and Slashdot (with confirmation of the fact that, DRM or not, the music’s online) — Copy-protected CD Tops U.S. Charts

Hmmm - is the folding chair working? Or will there be a backlash?

Ernest: CD DRM Keeps Music Off P2P Filesharing Networks - Oh, wait, that didn’t happen.

Ed Felten: Lame Copy Protection Doesn’t Depress CD Sales Much; TechDirt: Misunderstanding The Success Of A Copy-Blocked CD

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Speaking of this Administration [5:38 pm]

Today’s War Room report in Salon refers to this LATimes article: Spy Work in Iraq Riddled by Failures. One particularly priceless description (if hideously nightmarish at the policy level):

U.S. analysts also erred in their analysis of high-altitude satellite photos, repeatedly confusing Scud missile storage places with the short, half-cylindrical sheds typically used to house poultry in Iraq. As a result, as the war neared, two teams of U.N. weapons experts acting on U.S. intelligence scrambled to search chicken coops for missiles that were not there.

“We inspected a lot of chicken farms,” said a former inspector who asked not to be identified because he now works with U.S. intelligence. His U.N. team printed “Ballistic Chicken Farm Inspection Team” on 20 gray T-shirts to mark the futile hunt.

See also this NYTimes book review: How Feuds and Failures Affected American Intelligence

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Negroponte on Yochai’s Open Wireless Network [5:29 pm]

Q&A With MIT’s Nicholas Negroponte

Q: Which new products or services are likely to make the biggest splash?

A: Peer-to-peer is key. I mean that in every form conceivable: cell phones without towers, sharing leftover food, bartering, etc. Furthermore, you will see micro-wireless networks, where everyday devices become routers of messages that have nothing to do with themselves.

Nature is pretty good at networks, self-organizing systems. By contrast, social systems are top-down and hierarchical, from which we draw the basic assumption that organization and order can only come from centralism.

Slashdot discussion: Q&A With MIT’s Nicholas Negroponte

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Jack Balkin Sees A *Glowing* Lining [5:22 pm]

In Radioactive Judicial Candidates , Jack Balkin finds a ?silver? lining in his ongoing discussion of the Administration’s legal shenanigans on torture:

One of the little noted side effects of the Iraq war is that the Administration’s eagerness to remove legal constraints from its interrogation of detainees in Iraq, Afghanistan, and Guantanamo Bay may well have torpedoed the chances of a number of Administration lawyers to become federal judges or Justices on the Supreme Court. These ambitious people may well have thought that doing the Administration’s bidding would propel them into judicial office. In the case of Jay Bybee, who now sits on the 9th Circuit Court of appeals, the strategy worked. But that was before the Abu Ghraib scandals and the release of the OLC and Defense Department torture memos. Bush Administation lawyers who can be found to have participated in any way with these decisions are probably radioactive. Their judicial prospects are pretty much destroyed.

One of the most interesting examples is Alberto Gonzales, the President’s counsel. People have long assumed that Gonzales, who would have been the first Latino nominee, was at the top of the list for any future Supreme Court appointment. [...]

[...] The corruptions of power have brought us to a sorry spectacle in which intelligent lawyers, many with impeccable credentials, have argued vigorously for an Imperial Presidency that is above the law and for the right to abuse and torture fellow human beings. This failure of moral imagination and professional scruple makes the participants unfit for judicial office, and no one should hesitate in saying so. Put another way, if the torture memos have made these very bright and talented lawyers radioactive, it couldn’t have happened to a nicer bunch of guys.

See earlier posting: OT: Krugman on Ashcroft

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Who’s Surprised? [5:10 pm]

In RIAA Exceeds Expectations (the Low Ones), Jenny Levine points to the expectations and contrasts with the realities of the record companies’ CD settlement to libraries.

I don’t know why I’m surprised. I expected offbeat titles (I got one copy of “Ray Romano at Carneige Hall”, for example) and some grab-bag stuff, but not 47 copies of a Latin CD I’ve never even heard of (the Hispanic population of the city this library serves is 7%, according to the 2000 census, in case you’re thinking there might be a huge demand for this title and I am simply unaware of it). While there are titles I got that I will add to my collection and am glad to have, I’m angered by the hubris and or carelessness of whoever is sending me 23 copies of ANYTHING, much less some of the gems you see listed above.

Be sure to read the list as well as the percentage of "cut-outs" he got.

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Issues With Beastie Boys’ New CD [4:46 pm]

From SecurityFocus: Caveat Lector: Beastie Boys Evil [via the June 17th posting at MemePool]

It seems that Capitol Records has some sort of new copy protection system, that automatically, silently, installs “helpful” copy protection software on MacOS and Windows as soon as you insert the CD into default systems. I’m not sure exactly what it does yet, but I am sure regreting actually purchasing said media now… they don’t deserve my money if they choose to pull stupid stunts like this. Installing software without your permission sounds like viral malware behaviour to me. I certainly hope the AV companies put signatures into their products for this crap.

They include some sort of uninstaller buried on there for Windows, but I see no such thing for MacOS.

Note that the Beastie Boys message board is taking some flaming

Update: Slate’s review - Rhymer’s Delight

Even later: The Register, including how to circumvent - Beastie Boys CD installs virus

Much later: Beastie Boys Respond to DRM Claims

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Geist on Balance in Copyright Policymaking [12:35 pm]

Copyright reform needs a balanced approach [via Lessig Blog] — with some familiar rhetoric and some procedural suggestions for progress.

The conflicting responses reflect two very different visions of the Internet. Those calling for stronger copyright protections, including the Bulte committee, view the Internet primarily as a new distribution channel and method to copy. In their view, new copyright laws are therefore needed to control unsanctioned copying and to restore appropriate levels of compensation.

Those concerned about the effects of greater protections view the Internet primarily as a technology for creating, not a technology for copying. For this group, represented by the millions of Internet users that post messages to newsgroups, maintain blogs, or actively share their work online, the Internet is not a spectator sport. From their perspective, copyright law should support innovative and creative work, not obstruct it.

The challenge facing Canada’s parliamentarians and copyright policy makers is they must find a way to reconcile these opposing visions. The Supreme Court of Canada has indicated that a balanced approach is to be the guiding objective in that regard, noting in one recent case that “excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.”

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Copyfight on Luck’s Music Library v. Ashcroft [12:14 pm]

All Your Public Domain Are Belong to Us. The opinion argues, among other things, that the passage of the 1790 Copyright Act, and the fact that it gave copyrights to works created before 1790, was not the statutory recognition of an existing copyright (in common law or otherwise) but was, instead, the exercise of a Congressional power to award retroactive copyright — consistent with Eldred but practically nonsense, since such copyright awards clearly cannot have been necessary to “promote … Progress” — or the works so protected wouldn’t have been created in the first place.

I personally enjoyed the discussion of the plaintiffs claim that such a retroactive award violates the originality requirement of copyright (the work’s in the public domain, hence any effort to award copyright to it fails because a public domain work is, by definition, unable to claim originality), but the Court’s argument that originality is (a) not dependent upon a formal temporal definition and (b) that such works must have satisfied originality at one time, or they wouldn’t have been copyrighted in the past, is both unsatisfactory and painfully circular. (slip op. 18) But, IANAL.

Worse, the bar on originality is set dangerously low, IMHO:

In Eldred, the Supreme Court held that the originality requirement means only that a modicum of creativity exists, and did not depend on the timing of the grant of copyright protection. 537 U.S. at 211. Indeed, the requirement of creativity requires only that the author independently created the work.

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New Moves By Sen. Hatch [10:24 am]

From the EFF Deep Links site: INDUCE Act = Hollings II?
(timestamp updated owing to new content: original timestamp 9:06 AM)

Rumor has it that Sen. Orrin Hatch (R-UT) will be introducing a bill tomorrow that would add a new Section 501(g) to the Copyright Act granting copyright owners a cause of action against those who “induce” copyright infringement (cf. patent law). This bill, dubbed the INDUCE Act, would apparently also reach those who “counsel” infringers.

Even a moment’s reflection should make the danger to innovators clear — you now have to worry not just about contributory and vicarious liability, but an entirely new form of liability for building tools that might be misused. It will be interesting to see whether the bill expressly precludes any Betamax-type defense. This may also pose First Amendment problems, to the extent a journalist or website publisher might be liable for simply posting information about where infringement tools might be found or how to use them.

It’s the Hollings Bill by other means — an over-reaching new form of indirect liability that will force technology companies of all kinds to “ask permission” before innovating for fear of ruinous litigation if they don’t.

Copyfight has much, much more: Donna Wentworth’s posting - INDUCE Act = Son of Hollings?; Ernest Miller’s discussion - INDUCE Act is Free Speech Killer - with a link to Susan Crawford’s blog entry that has a link to the proposed text; Techdirt posting

Update: More from Ernest — Should Have Seen the INDUCE Act Coming; and thoughts from Ed Felten

Even later update: Antipiracy bill targets technology

Later: Slashdot discussion, Sen. Hatch to Introduce Wide-ranging Copyright Bill

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Paul Boutin on Starz, Movies and Piracy [10:14 am]

The Verdict: No Starz - The cable network’s new online downloading service is just good enough to drive you to piracy

To stop online piracy—or at least keep it to a bearable minimum—the companies whose copyrights are being violated need to offer consumers something better than what people can get for free. That’s a tough challenge, but the better music services, such as iTunes and Rhapsody, have figured it out. By contrast, online movies are still a bust. You might think there’s no market for people who want to watch movies on a computer, but that’s only if you don’t fly a lot. Lots of well-paid people spend a lot of time sitting on airplanes holding a laptop that doubles as a personal movie player. Why carry on a pack of DVDs when your disk drive will hold dozens of full-length movies? Yet while iTunes sells several million songs every week, Movielink and CinemaNow can convince consumers to pay for only about 135,000 flicks a month. That’s for both services combined.

But John Sie, the chief executive of the Starz TV network, gave the New York Times three reasons this week that Starz’s new movie-downloading service might be worth watching. He claimed the downloads would play at full-screen size, rather than the postcard-size videos offered by other services. Second, Starz would offer hit movies like Finding Nemo and Pirates of the Caribbean, not also-rans. Finally, the service would be affordable, $12.95 a month for up to 100 screenings. [...]

But on all three points offered by Sie, Starz comes in a distant second to piracy. If Hollywood wants to wean computer users from BitTorrent, the movie studios will have to offer something better than this.

[...] It’s frustrating, because the movie industry could do better than the pirates if it really wanted to. A ripped DivX version of a movie is nowhere near DVD quality. If the studios sold downloadable movies that the average viewer couldn’t tell from a DVD (the way MP3s offer “good enough” sound even though it’s not CD-quality), who’d want a grainy bootleg? The studios could compete on selection, too. Instead of letting Starz’s 100-movie inventory look generous, the studios need to create an online store with a catalogue comparable to Blockbuster or Netflix.

[...] An iTunes for movies—a well-designed, super user-friendly video store with fast, reliable downloads (there’s no reason it couldn’t use BitTorrent on the back end, linked to fast corporate servers)—would lure consumers into paying. Not by making piracy feel criminal, but by making it feel inconvenient.

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Maybe the Brand Isn’t All That Valuable? [10:01 am]

Napster to give away music players

Roxio’s Napster said Wednesday it is offering free digital music players with a one-year subscription, in the latest bid by an online music service to lure consumers with promotional offers.

Or maybe it’s just copying a page from the cellphone business.

Update: Techdirt makes a good point — Roxio Gets It Backwards - Giving Away Music Players To Napster Users

Even later: The Register - Napster gives away MP3 players: Derek’s Napster Players Can’t Play Napster Songs

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More "Disposa-DVDs" [9:56 am]

From Slashdot, raising a spectre of price discrimination between rental and retail DVDs that depends upon some economics that might be hard to support (are disposa-DVDs cheaper to make? Can we really recycle them? (not given what I know about optical grade polycarbonate)): Yet Another Degrading DVD

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A European Twist on Music eTailing [9:28 am]

Papers plan digital music moves

Five major UK newspapers are all looking to hop onto the digital music download bandwagon this year.

The Guardian, Times, Mail, Mirror and Sun are all considering rolling out commercial services provides via their web sites and tied to promotions run within the papers themselves, New Media Age reports.

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321 Studio’s Status [9:18 am]

Cited many places: 321 Studio moots bankruptcy

DVD duplication software maker 321 Studios has admitted that it is considering going bankrupt in order to fend off lawsuits from the music, movie and games industries.

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Jobs "Gone Hollywood?" [9:13 am]

I’m with J. D. Lasica — this is disappointing: Has Jobs gone Hollywood?

Well, this is disappointing. From Monday’s Wall Street Journal:

Steve Jobs stirred controversy a few years ago with his “Rip, Mix, Burn” advertising campaign, which encouraged consumers to use their computers to copy music. But when it comes to the consumer’s ability to copy future generations of the DVD movie format, Mr. Jobs is sending a very different message.

At a recent private meeting with Hollywood studio heads and tech czars like Microsoft Corp.’s Steve Ballmer and Hewlett-Packard Co.’s Carly Fiorina, Mr. Jobs argued that studios shouldn’t license their movies for use in the planned “high-definition DVD” format until Hollywood is assured by the tech industry that the discs can’t be copied by new DVD burners that will come along.

See also Ernest and Derek on this

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CALEA v. VoIP [9:00 am]

Senate Tangles Over VOIP Rules

Deputy Assistant Attorney General Laura Parsky told the Senate Commerce Committee that unregulated VOIP would be a “haven” for terrorists unless the government forces connected providers to build special wiretapping capabilities into their systems.

“If legal loopholes allow criminals to use new technologies to avoid law enforcement detection, they would use these technologies to coordinate terrorist attacks, to sell drugs throughout the United States and to pass along national security secrets to our enemies,” Parsky said.

Under Sen. John Sununu’s (R-New Hampshire) proposed bill, known as the VOIP Regulatory Freedom Act, VOIP providers would have to honor government wiretap orders, but would not have to design special capabilities to allow wiretaps.

The Justice Department wants Congress to require VOIP providers to adhere to the same wiretapping mandates that apply to traditional telecommunications companies.

Can we maintain "end-to-end" and satisfy CALEA? The knowledgeable people I’ve talked to about this say the two are almost perfectly incompatible — like insisting that airplanes obey any traffic lights they overfly.

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Update on Boucher’s HR 107 [8:56 am]

DMCA Foes Find Allies in House

The bill’s sponsor, Rep. Rick Boucher (D-Virginia), already has 19 co-sponsors, including powerful House Commerce Committee Chairman Joe Barton (R-Texas). It’s unlikely the bill will become law this year, but its proponents see the backing as a good sign.

In 1998, record companies and Hollywood lauded the DMCA as a way to stop piracy, which they said had accelerated because of digital copying technology. But the DMCA has since evoked buyer’s remorse in many lawmakers, who fear they handed copyright holders far more control than intended while eroding Americans’ fair use rights. They also worry that the law has criminalized otherwise innocent activities, such as making a personal copy of a purchased CD, or trying to get a DVD to play on a Linux computer.

Note that the failure to include the notion of "access" into the discussion of "fair use" remains the copyright cabal’s working rhetoric:

“That’s just not true,” said David Green, vice president and counsel for technology and new media at the Motion Picture Association of America. “The DMCA retains fair use. It doesn’t change fair use in any way.”

Rather, he said, the DMCA simply bars circumvention of copy-protection schemes. He also said fair use has never allowed people to make full backup copies of movies anyway — a notion that many HR107 supporters dispute.

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Can We Do This Analysis For Media? Communications? [8:35 am]

The Economic Value of Variety

In a recent working paper for the National Bureau of Economic Research, Professor Weinstein and Christian Broda, an economist with the Federal Reserve Bank of New York, estimate how much international trade has benefited consumers simply by increasing variety. (The paper is available at www.ny.frb.org/research/staff_reports/sr180.html.)

The results are striking. Consumers, they estimate, would be willing to pay $280 billion a year, or about 3 percent of gross domestic product, to have access to the variety of goods that were available in 2001, rather than what they could have bought in 1972.

That represents a huge, previously uncounted rise in the standard of living. It also suggests that measurements of real price increases, like the Consumer Price Index, are overstated.

So, there’s a revealed preference for variety — what might this mean for arguments that have been raised to suggest that monopolies are more efficient; does the increase in consumer value offset the loss the efficiency? And. what might this mean for policies that end up supporting increasd consolidation of media? Music? Operating systems?

Related, from Slate: Garfield: Why we hate the Mouse but not the cartoon copycat

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Hurrah! Push-back! [8:09 am]

Tragically, CNet’s editors have already fallen into a rhetorical trap by describing the issue as "Piracy battle begins over digital radio" when they could just have easily called it "Consumers’ right to record radio threatened." Yet, somehow the RIAA has already managed to get news organs to describe home recording of music as "piracy." What exactly were those performance rights licenses for digital broadcasts of sound recordings supposed to be for?

On Wednesday, the Recording Industry Association of America asked the FCC for new antipiracy protections that would prevent listeners from archiving songs without paying for them–and from trading recorded songs online. The RIAA and musicians’ trade groups are worried that consumers might one day forgo buying albums or songs from iTunes-like services in favor of recording CD-quality songs off digital radio services.

“We know this (technology) will be attractive to consumers,” RIAA Chief Executive Officer Mitch Bainwol said. “For us, it’s the challenge that peer-to-peer introduces but made more complex by the fact that there are no viruses, there is no spyware or other file-sharing (problems).” [Editor's note: not to mention that it's legally protected]

[...] Those ideas have drawn deep opposition from consumer groups and electronics companies, which say the FCC has no congressional mandate to impose content protection on radio broadcasts of any kind.

[...] “No one at the Recording Industry Association of America or the FCC has demonstrated any need whatsoever for content protection on a service that doesn’t exist in the U.S.,” said Gigi Sohn, co-founder of Public Knowledge, a copyright campaign group that is working with Consumers Union and the Consumer Federation of America on the issue. “The recording industry is trying to fool the FCC into regulating home taping of radio, which is protected by law.”

See earlier RIAA Ramps Up To Kill Digital Radio and the EFF Deep Link RIAA Gunning for Home Taping (Again)

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