August 27, 2004

Now, What Were You Saying About Promoting Innovation? [8:09 am]

Homegrown satellite radio software draws XM fire [pdf]

So the 35-year-old computer programmer from Ottawa, Ontario, wrote a piece of software that let him record the show directly onto his PC hard drive while he snoozed.

The software, TimeTrax, also neatly arranged the individual songs from the concert, complete with artist name and song title information, into MP3 files.

Then MacLean started selling the software, putting him in the thick of a potential legal battle pitting technically savvy fans against a company protecting its alliance — and licensing agreements — with the music industry.

MacLean says he is simply seeking to make XM Radio — the largest U.S. satellite radio service with over 2.1 million members paying $10 a month for about 120 channels — a little more user-friendly.

“The larger issue here is they came out with one lock and another creative person goes out to create a key,” said Michael McGuire, an analyst at technology research firm Gartner. “It’s very hard for policy and copyright law to keep up with the pace of technological change.”

A spokesman for the Recording Industry Association of America said his organization had not reviewed the software, but said that in principle it was disturbed by the idea. “We remain concerned about any devices or software that permit listeners to transform a broadcast into a music library,” RIAA spokesman Jonathan Lamy said.

Slashdot: TiVo-like Application for XM Radio Under Fire; Wired News: Homemade Sat Radio Software Bump

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August 26, 2004

GrepLaw Interviews Downhill Battle’s Nicholas Reville [3:36 pm]

Blog Torrent and Participatory Culture

You’ve come a long ways since last August. I notice that now you have some cool projects, lots of people linking to the resources on your site, and some press coverage. Tell us about that transition and growth.

We never imagined that Downhill Battle would become such a long-term project for us. When Holmes and I started the site in August 2003, we saw it as a chance to make a timely push-back against a totally one-sided debate about the future of the music industry. Now we’ve been sucked in to an even bigger fight for the future of our culture and the role that the internet can play in reshaping it. What started as a webpage turned into 60-hour work weeks before we new what hit us, but we care deeply about this stuff and, most of all, we’re confident that our side can win.

[...] You’ve definitely interviewed some cool musicians (of which Thievery Corporation is my favorite). What is a recurring theme that surfaces in those interviews?

Our interviews are conversations about music and the music industry with important independent musicians. It’s crucial that we and everyone else hear from musicians while we’re in the midst of this huge debate about what direction music should take, and we want the interview series to be a resource for people.

Standing at this intersection between art and technology, there’s really a fascinating connection that comes out in the interviews between how a lot of musicians feel about music and how free, open-source software people feel about software. Proprietary software monopolies like Microsoft are exactly the same as the record industry monopoly: at one point they were useful enough to people that they made a lot of money and got themselves into a position of exclusionary control. The major record label market share is almost as high as Microsoft’s. They both use that power to deploy a series of dirty tricks that destroy competition– in music that means payola on radio and in magazines that silences independent musicians. Ian MacKaye compares record companies to bottled water companies: it’s convenient to have a company take water from a river and put it in bottles for you to use, and it’s convenient to put music on a CD so you can listen to it. But gradually the record companies have started working against the public interest.

Slashdot - Blog Torrent: Downhill Battle Interview

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Spinning the JibJab Outcome [11:30 am]

Get a load of this: Guthrie Publisher Lets Cartoon Use Song [pdf]

In return, JibJab dropped a lawsuit against Ludlow that sought an order saying its use of the song was protected because it was a parody and “This Land” was in the public domain.

The creators also agreed to provide a link on their Web site to the song’s original lyrics and to donate 20 percent of any profits to the Woody Guthrie Foundation.

“The settlement accomplished Ludlow’s goals, which was to bring people back to the immediate message of Woody Guthrie,” said Paul LiCalsi, an attorney for the firm.

LiCalsi said JibJab’s version of the song wasn’t protected under copyright law because it targeted the election rather than the song itself. Protection under the fair use clause of the law requires that copyrighted material be the subject of the parody, he said.

JibJab’s lawyers said Ludlow was misinterpreting the law and that the song in the cartoon clearly was a parody.

Ernest’s Ludlow Got Some Concessions in JibJab Case has some further links and discussion

Furdlog JibJab related postings

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French Lawsuit Over Copy Protected CDs [9:56 am]

Lawsuit Challenges Anti-Piracy Technology [pdf]

Copy protection technologies used to prevent CDs from being pirated online are facing a legal challenge in France, where a judge began a formal investigation of record label EMI Group PLC for using them.

Confirming a report in French financial daily Les Echos, the record store Fnac said Wednesday it has also been placed under investigation by a French judge along with EMI’s French arm.

[...] Filed on behalf of several individual consumers, it alleges that the copy protection system used on certain EMI discs makes it impossible to play them on many car stereos, hi-fi’s and personal computers.

French consumer association UFC-Que Choisir is seeking damages in the legal action, which also claims that EMI’s copy protection stops customers from making personal copies of their CDs — a privilege granted to French consumers by a 1985 law.

Julien Dourgnon, deputy director of the consumer group, said the ability to make copies for private use — for example by transferring music to a portable MP3 player — was important to many record buyers.

“We’re defending that freedom, we’re not defending piracy,” he said.

TechDirt has another link

Later: CNet News’ French investigators probe copy-protected CDs

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Stamp of Failure on Real’s PR Move [8:39 am]

And the New York Times’ take on the role of DRM in our culture: A Digital Divide

If nothing else, this dispute demonstrates the increasing importance that digital rights play in our lives. Digitally encoding music, selling it and sending it over the Internet, not to mention carrying thousands of songs around on a music player the size of a box of cough drops - these things are easy to do. What’s hard, and yet what makes it all possible, is creating the software bottleneck that protects the rights of copyright owners.

It would be better for consumers if Apple began licensing its digital rights management software, only because the iTunes Music Store will not be able to lock up access to all the copyrighted music in the world. But RealNetworks’ contention that Apple is stifling freedom of choice is self-serving. You can play music from any CD on an iPod, once it has been digitally copied, and the device works on PC’s and Macs. Some critics like to argue that Apple is making the same mistake that it made by not licensing its operating system back in the 1980’s. At the moment, Apple seems to hold most of the cards.

See earlier Real Seems To Be Losing The PR Battle

Later: Ed Felten’s thoughts - NYT Chimes in on the Real/Apple Issue

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IICA Gets More Support [8:20 am]

Induce Act Draws Support, Venom

But since its introduction, nine co-sponsors have signed on, both Democrats and Republicans.

And significantly, that list of co-sponsors now includes two of Congress’ most influential members: Senate Majority Leader Bill Frist (R-Tennessee) and Senate Minority Leader Tom Daschle (D-South Dakota).

[...] “The act’s proponents have emphasized that they only want to target ‘rogue’ P2P companies while leaving the Sony Betamax decision intact, so the technology associations have drafted a bill that takes them at their word,” said [EFF's Fred] von Lohmann. “Of course, the RIAA and MPAA will predictably complain that the language is too narrow, which will then beg the question — who else did they want to target with this legislation? How many legitimate technology companies do they want swept up in the web of legal uncertainty created by this bill?”

“There is no implication here that the passage of a bill is inevitable,” said von Lohmann. “This is intended to force the RIAA/MPAA to tip their hand, to show just how radical a change to copyright they are really after. Once that is accomplished, I imagine any congressional eagerness to pass a measure will wane.”

Others are less optimistic, including Adam Eisgrau of file-sharing industry group P2P United.

“Powerful political forces under pressure can, and often have, produced very bad law,” said Eisgrau. “There’s no doubt that the combined muscle of the recording and movie industries could well move a cosmetically changed, but innovation-chilling, version out of the Senate Judiciary Committee and to the Senate floor with the help of the bill’s influential co-sponsors.

“With the end of this Congress approaching, anything can happen — and often does,” he said.

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How Isn’t This Entrapment? [7:56 am]

Followup to yesterday’s Tax Dollars At Work — I am not an lawyer - so I look forward to learning why this didn’t constitute entrapment: U.S. Searches Computers, Trying to Disrupt Piracy

The F.B.I. conducted a covert investigation by loading two computers with copyrighted material and joining the Underground Network, a move that let it identify five hub computers that coordinated the file sharing. An F.B.I. agent then downloaded 84 movies, 40 software programs, 13 games and 178 songs from the network.

The network operates a Web site - - that is registered to an address in San Antonio. A man who answered the telephone at the number associated with the domain, who declined to give his name, said the government’s charges were baseless. The Underground Network, he said, is an online community that is used for social communication and to share tips. It is used by people involved in file sharing and others, he said, but the network itself is not involved in trading files.

“Everybody is pretty upset we are being targeted as a distribution group,” he said. “We never distributed any kind of material. We did nothing illegal.”

The case relates to the No Electronic Theft Act, a 1997 law that extends criminal copyright law to cases where there is no clear profit motive. It imposes fines of up to $250,000 and jail terms of as long as five years for those who distribute copies of copyrighted works.

See also CNet News’ Justice Dept. probes for pirates

Until a few years ago, only commercial pirates doing things like selling illegal copies of CDs or DVDs could be prosecuted under a criminal charge, while copyright infringers who weren’t doing it for profit had to be sued in civil court. Then, in response to an Internet piracy case involving a Massachusetts Institute of Technology student, Congress enacted a 1997 law called the No Electronic Theft (NET) Act that made nonprofit piracy a federal crime.

The NET Act says that peer-to-peer pirates may be given up to $250,000 in fines and prison terms of up to three years–though people targeted under the law typically agree to plea bargains that carry milder punishments. In general, violations of the NET Act are punishable by one year in prison, if the total value of the pirated files exceeds $1,000. If the value tops $2,500, that term is not more than five years in prison.

Proving that file swappers violated the NET Act is not a trivial task. It requires a prosecutor to demonstrate not only that defendants made the files available, but that they actually made or distributed copies.

That’s why the RIAA is lobbying hard for new legislation that would make it easier for federal prosecutors to land convictions under the law. The RIAA is backing the Piracy Deterrence and Education Act (PDEA), which says prosecutors would no longer have to prove that copyrighted materials were downloaded by others. Instead, they would need only to show that those files had been publicly accessible in a shared folder.

Here’s the Thomas entry for PDEA - HR 4077 - Sponsored by Lamar Smith, co-sponsors include Reps. Berman, Bono and Coble. Surprisingly, MA Rep Meehan is also on the list. And the text of the bill is well worth a read - See, for example, Section 10 - Enhancement of Criminal Copyright Infringement, giving significant latitude in defining the “retail value” of the infringement; more ugly is the “Sense of the Congress” section 9, full of some significant nonsense.

Also: p2pnet’s DoJ raids p2p operators; BBC’s FBI action over illegal file-swap; InfoWorld’s U.S. government cracks down on P-to-P piracy; bIPlog’s The War on File-sharing

Later: This p2pnet article just reinforces my question - UDGNET to AP, DoJ, FBI -

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August 25, 2004

EC, Microsoft and DRM [3:52 pm]

EC launches Microsoft DRM probe

The European Commission will, after all, launch a probe of the deal between Microsoft and Time Warner to take joint ownership of a US DRM company, ContentGuard. The probe is warranted, the Commission announced in a press conference today, because the deal could lead to Microsoft extending its monopoly in operating systems to the locks and keys for the digital distribution of books, music, movies and third party software.

See also InfoWorld’s EU extends MS, Time Warner probe; and AP’s European Union Extends Review of Microsoft Deal

Later: NYTimes’ Europe Opens Another Microsoft Inquiry

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Tax Dollars At Work [3:45 pm]

And note the use of language: Justice Dept. probes for pirates

The U.S. Department of Justice announced on Wednesday that it has launched its federal criminal probe of piracy on file-swapping networks.

Federal agents have searched five homes and one Internet service provider in three states, seeking evidence of criminal copyright infringement, according to a Justice Department statement. The investigation is targeting a specific private file-swapping group called the Underground Network.

“The execution of today’s (search) warrants disrupted an extensive peer-to-peer network suspected of enabling users to traffic illegally in music, films, software and published works,” Attorney General John Ashcroft said in a statement. “The Department of Justice is committed to enforcing intellectual-property laws, and we will pursue those who steal copyrighted materials, even when they try to hide behind the false anonymity of peer-to-peer networks.”

The DoJ press release: Attorney General Ashcroft Announces First Criminal Enforcement Action Against Peer-To-Peer Copyright Piracy; The Register - US DoJ searches homes of P2P evil doers; Slashdot Justice Dept. Raids Homes of File Swappers; Techdirt’s Forget Slamming Spam, Ashcroft Wants Those Evil File Sharers

Note that Richard Posner’s perspective on filesharing is particularly ironic given the resources that the DoJ is bringing to bear:

We are in the presence of an arms race between encryption and copying technologies; if the latter prevails in this competition, copyright law will be ousted from one of its domains.

With all due respect for the interests of the recording industry and the file sharers, I regard this particular interaction of law and technology as relatively trivial in its overall social consequences. I am much more concerned about the ability, or rather inability, of the law and other policy instruments to cope with the issues thrown up by the relentless progress of science and technology.

Oh, yeah! New lawsuits, too - Music Industry Sues 744 for File Sharing [pdf] — The Register has a different count, including 152 who refused to settle — Music labels sue 896 more music lovers; p2pnet; Slashdot’s RIAA Sues More Music Lovers

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Bjork on File Sharing [9:02 am] : medulla special : interview [via Xeni at BoingBoing]

So Bjork is not superstitious then?

“You know, its ironic that just at the point the lawyers and the businessmen had calculated how to control music, the internet comes along and fucks everything up.” Bjork gives the finger again, this time waving it into the air. “God bless the internet,” she adds.

And what about you, then?

“I’ll still be there, waving a pirate flag.”

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Wonder If The Licensing Is Settled? [8:58 am]

CD on one side, DVD on the other

The consortium, which includes major labels EMI Music, Sony BMG Music Entertainment, Universal Music Group and Warner Music Group, said the DualDisc product has a full album on a CD side of the disc and the album in enhanced sound–such as DVD-Audio–on the other side. The DVD side also includes a range of features, such as music videos, interviews, photo galleries, Web links, concert footage and lyrics, the DualDisc Consortium said.

See An Old Issue Heating Back Up for the backstory.

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StreamRipper Primer [8:55 am]

Hmmm - any “INDUCE”ing going on here? Three easy apps to record Internet radio

I have a lot of CDs, and I’ve ripped most of them to MP3 so that I can make my own mix CDs. I always want more music, though, and CDs are expensive. Legal issues surrounding file sharing and the music industry have pushed me to find a new source for music. I’ll spare you my opinions on the subject, but suffice it to say I’d rather find other ways to get new music rather than roll the dice on paying a big fine.

That’s why I use stream rippers , which record the currently playing stream and save it in MP3 format. Fortunately, recording Internet radio still remains in legal limbo, and there’s some precedent for it being legal, since you can record regular broadcast radio. There are plenty of good Internet radio stations if you do a little searching, and you can even find some that cover the exact genre of music you like.

Whenever I find a really good station, I use a stream ripper to save the music on my hard drive. That way, I always have some good music on hand to push me through the rest of my workday. Here are my three favorites–and they’re all free.

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Something to Think About [8:45 am]

Apple continues its moves into the consumer electronics space? Apple iPod team seeks Wi-Fi engineer

Apple is looking for two iPod hardware engineers both with Bluetooth and Wi-Fi experience, opening the possibility that the portable music player may be upgraded with wireless connectivity.

[...] But we suspect Apple has its eye on wireless not as an alternative to the cable connecting the iPod to a host Mac or PC, but to equip the device with the tools needed to communicate remotely with said host and Apple’s AirPort Express music-routing Wi-Fi access point.

Right now, there’s no way of sitting in a living room in which an AirPort Express unit is hooked up to a hi-fi and to control what’s being streamed off the Mac up in the spare room. If the computer’s portable, you can bring it down, or you can pop into the other room and change iTunes’ playlist. What’s needed is a remote control.

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TechDirt on Verizon and Fiber Buildout [8:35 am]

TechDirt’s take on this CNet News article, Verizon blames federal rules for broadband holdup, is definitely worth reading: Verizon Admits It’s Holding Fiber Lines Hostage Until Regulations Change

If fiber is a “natural monopoly” product, why not view it like the highway system: get it built, and then open it up to everyone. Either way, this seems like pure posturing from Verizon. Later in the article Verizon’s president admits that fiber is going to be the “turning point for our own businesses.” If they realize it’s so valuable, you would think they would see the benefits as being much more valuable than the risk of having to share the lines.

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Posner on Misuse of Copyright [8:31 am]

Fair Use and Misuse

Here is a very worrisome problem concerning fair use. It has to do with a dichotomy long noted by legal thinkers between the law on the books and the law in action. They often diverge. And fair use is an example of this divergence. As I said in an earlier posting, fair use often benefits rather than harms the copyright holder. However, it doesn’t always; moreover, even if a copyright holder is not going to lose, and is even going to gain, sales from a degree of unlicensed copying, if he thinks he can extract a license fee, he’ll want to claim that the copying is not fair use; and finally, because the doctrine has vague contours, copyright owners are inclined to interpret it very narrowly, lest it expand by increments.

The result is a systematic overclaiming of copyright, resulting in a misunderstanding of copyright’s breadth. [...]

What to do about such abuses of copyright? One possibility, which I raised hypothetically in my opinion in WIREdata, pp. 11-12, is to deem copyright overclaiming a form of copyright misuse, which could result in forfeiture of the copyright. For a fuller discussion, see the very interesting paper by Kathryn Judge, not available online but obtainable by emailing her at

The underlying problems are two: the asymmetry in stakes in disputes between owners of valuable copyrights and people who are either public domain publishers or don’t anticipate that the works they’re creating will have great commercial value; and the vagueness of the fair-use docrine. I have suggested that this vagueness can be reduced by a categorical approach, under which types of use are given essentially blanket protection from claims of copyright infringement. If only one could define “glimpse”!

See Donna’s thoughts; and Seth’s JibJab Lawsuit Outcome and Creating A Copyright Lawsuit Downside

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IP and Internet Standards [8:27 am]

Microsoft Quits a U.N. Standards Group

Advocates of proprietary and open approaches to software technology standards had clashed within the organization, which is known as the United Nations Center for Trade Facilitation and Electronic Business, or U.N./Cefact. Microsoft, a maker of proprietary software, opposes the use of open-source software, which is freely shared.

But Microsoft’s withdrawal on Monday was apparently not directly related to the earlier controversy, according to several industry representatives. Rather, they said, it stemmed from a set of thorny issues over control of intellectual property that is being contributed to the standards-setting effort.

In an e-mail message sent Monday to two officials of the U.N. standards group, Dave Welsh, a Microsoft program manager, wrote: “Microsoft regularly evaluates its standards participation and its available resources for effective participation. Unfortunately, for now, we have made the decision to stop participating in U.N./Cefact for business reasons and this serves as notification of our immediate withdrawal from all U.N./Cefact activities.”

The e-mail message also noted that previous Microsoft contributions to the group were not bound by the negotiations taking place over the control of intellectual property.

Later: Slashdot suggests another rationale — Free Software Day Around The World

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JibJab Settlement Announced [8:19 am]

This Song Belongs to You and Me (press release)

EFF has just announced that the JibJab suit has been settled. The resolution was a complete victory for JibJab, which will be entitled to continue distributing the “This Land” animation without further interference from Ludlow.

Two things made this outcome possible. First, JibJab’s fantastic animation is a clear case of fair use, for the reasons described in detail in our earlier letter to Ludlow’s attorney.

But also important was our other discovery: “This Land Is Your Land” has been in the public domain since 1973.

Note also that the EFF posting suggests that they used something of the emerging GrokLaw model of legal research.

Thanks to everyone who expressed support for JibJab and to the many people who helped us to do the research that needed to be done regarding the history of the song.

Ernest; Seth; Donna; Wired News’ rather oddly titled JibJab Is Free for You and Me; CNet’s JibJab beats copyright rap; Ernest’s got a wrapup; and there’s Slashdot

Later: This APWire story puts quite the spin on the result: Guthrie Publisher Lets Cartoon Use Song [pdf]

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Real Pirates [8:07 am]

Polish Cops Bust Computer Piracy Gang

Polish police have broken up a gang of more than 100 hackers who sold pirated music and films, using academic computer systems around the world to store their wares, a police spokeswoman said on Tuesday.

See also Police cuff ‘international computer piracy gang’

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August 24, 2004

I’m *Still* Confused [6:51 pm]

Katie Dean’s Music Services Score an A-Plus still doesn’t answer my question — how does losing money on every transaction mean that the problem is “solved?” Does someone expect that the government is going to *mandate* that colleges and universities adopt these services? And who’s going to set *those* prices?

More than 20 colleges and universities have adopted legal music download services in the past year, and the trend is continuing, according to a report released to Congress Tuesday by a joint committee of entertainment executives and university officials.

That’s good news for both the music industry and colleges that have suffered from rampant peer-to-peer file sharing of copyright content on campuses, both groups say. Music labels blame such illegal behavior for dismal CD sales, while schools have dealt with rising bandwidth costs and legal action against their students.

I think this particular bit is the worst:

Penn State is paying a discounted rate for the Napster streaming service. The school is using its yearly information technology fee to support the program.

Students can stream an unlimited number of songs for free and download songs that are “tethered” to their computer, meaning the songs stay on the computer as long as the person (or in this case, the school) subscribes to Napster. But if students want to burn music to a CD, they must pay the regular rate — a buck a song.

Later this year, students will be able to transfer the music to a portable device for an additional fee. Napster is offering this option in partnership with Microsoft.

Spanier acknowledged some students were skeptical of the music service initially, but not anymore.

“Those complaints have pretty much vanished,” he said. “I think if we tried to take it away at this point, there would be a rebellion.”

Napster has also been useful in some music classes, he said. Instead of sending students to the library to check out CDs, students can use the service for such course work.

He’s confident that more universities will follow with similar programs: “I think this will all mushroom.”

It’s a buried fee!! With, I am guessing, a significant number of payers who are not using the service. And I’d love to know whether this fee ends up being a part of the overhead at PSU.

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Enter the Gorilla [6:41 pm]

MS to ‘quietly launch’ iTunes rival this week, citing Microsoft to join battle of the beats with music store

Microsoft will this week release the next major version of its Windows Media system - incorporating its ‘Janus’ DRM technology - along with its much-anticipated online music store.

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