ECJ limits database protection [pdf]

In a rare departure from its own Advocate General’s opinion, the Court ruled that sporting data compiled by the British Horseracing Board (BHB) and Fixtures Marketing did not deserve protection under the EU database directive.

The decision is a victory for defendants – including bookmaker William Hill – who use data such as football and horse racing fixtures to provide betting information.

It is however a setback for the BHB, which had estimated that it could raise £100 million ($186 million) a year from licensing its database, thereby securing its commercial future.

[...] In response to questions on what was meant by investment in obtaining and verifying data, the Court said (in the BHB case) that investment must be shown in the creation of the database itself, as distinct from the pieces of data that make it up: “It does not cover the resources used for the creation of materials which make up the contents of a database.”

The Court added: “The resources used to draw up a list of horses in a race and to carry out checks in that connection do not constitute investment in the obtaining and verification of the contents of the database in which that list appears.”

[...] One comfort for database owners is that the Court said that indirect copying of databases that had been put in the public domain is outlawed: “The fact that the contents of a database were made accessible to the public … does not affect the right of the maker to prevent acts of extraction and/or re-utilization of the whole or a part of the contents of a database.”

The Court also said that assessing whether someone had copied a “substantial part” of the database, evaluated qualitatively, involved taking into account the scale of investment made in the database.

David Harding, chief executive of William Hill, told MIP Week that he believed “common sense seems to have prevailed”. He added: “We were not seeking to steal the BHB’s data. And in any case we didn’t take it from them as it was already in the public domain.”

Rulings:

• BHB v William Hill

• Fixtures Marketing 1

• Fixtures Marketing 2

• Fixtures Marketing 3

See also the Scrivener’s Error entry: Database Protection

And makes a hash of a strange position - “regulatory restraint” from a profanity-fixated FCC> I guess I should be glad that Declan is so sure of his position — I’m still not sure where the FCC is going with VoIP. Maybe Declan is jockeying for a position he expects to open up with the start of the second Bush term?

VoIP backers should celebrate Bush win

The Federal Communications Commission’s vote on Tuesday in favor of voice over Internet Protocol, or VoIP, companies nicely captures the long-running discord between the Democrats’ regulatory fetishism and the Republicans’ regulatory restraint.

Led by FCC Chairman Michael Powell, the Republicans said VoIP must be freed from the clutches of busybody state utility commissioners–an argument also raised by Vonage and Internet companies worried about states regulating prices and levying onerous taxes in the manner of the former Soviet Union. As usual, that approach irked the two Democrats on the five-member commission.

See FCC on VoIP: Not Quite As “Unanimous” As Described

Slashdot’s The Music Man points to a (presently inaccessible) article, The Music Man – King Of The Pirates Has A Goal – Own It All! (Google cache), with someone who has accumulated over 900,000 songs, with the goal of having a copy of every song ever recorded.

While this looks, on one hand, like copyright infringement run amok, there is an odd problem — does his action really harm the artists? The industry? Is he really displacing that kind of demand? In fact, will he ever even listen to all those songs? And, if so, how would he ever have the time to work to pay for even a fraction of that content?

Although the article subject is trying to set a record, the fact is that there are lots of pure accumulators of MP3s and it’s interesting to consider how big their effect is on the music market if they aren’t sharing what they download.

Intellectual property [pdf] [via Slashdot]

n 1998 America introduced so-called “business-method” patents, granting for the first time patent monopolies simply for new ways of doing business, many of which were not so new. This was a mistake. It not only ushered in a wave of new applications, but it is probably inhibiting, rather than encouraging, commercial innovation, which had never received, or needed, legal protection in the past. Europe has not, so far, made the same blunder, but the European Parliament is considering the easing of rules for innovations incorporated in software. This might have a similarly deleterious effect as business-method patents, because many of these have been simply the application of computers to long-established practices. [...]

There is an urgent need for patent offices to return to first principles. A patent is a government-granted temporary monopoly (patents in most countries are given about 20 years’ protection) intended to reward innovators in exchange for a disclosure by the patent holder of how his invention works, thereby encouraging others to further innovation. The qualifying tests for patents are straightforward—that an idea be useful, novel and not obvious. Unfortunately most patent offices, swamped by applications that can run to thousands of pages and confronted by companies wielding teams of lawyers, are no longer applying these tests strictly or reliably. [...] What happens in America matters globally, since it is the world’s leading patent office, approving about 170,000 patents each year, half of which are granted to foreign applicants.

Music Download Vending Machines Set for Britain [pdf]

Customers will be able to download a single for about one pound onto a mobile phone or personal music player and the company launching the project said on Monday they hoped to initially offer two million songs.

The move follows continuing poor sales for traditional, over-the-counter singles.

[...] Inspired Broadcast Networks will open two music kiosks in Waterloo and King’s Cross stations next month and plan to have up to 20,000 others in high-street shops, service stations and pubs by the end of 2005.

See Dialtone P2P: What A Difference An Architecture Makes!

‘Music Is Not a Loaf of Bread’

WN: What are your thoughts on the RIAA’s ongoing lawsuits against individual file sharers?

Tweedy: We live in a connected world now. Some find that frightening. If people are downloading our music, they’re listening to it. The internet is like radio for us.

WN: You don’t agree with the argument that file sharing hurts musicians’ ability to earn a living?

Tweedy: I don’t believe every download is a lost sale.

WN: What if the efforts to stop unauthorized music file sharing are successful? How would that change culture?

Tweedy: If they succeed, it will damage the culture and industry they say they’re trying to save.

What if there was a movement to shut down libraries because book publishers and authors were up in arms over the idea that people are reading books for free? It would send a message that books are only for the elite who can afford them.

Stop trying to treat music like it’s a tennis shoe, something to be branded. If the music industry wants to save money, they should take a look at some of their six-figure executive expense accounts. All those lawsuits can’t be cheap, either.

[..] Tweedy: A piece of art is not a loaf of bread. When someone steals a loaf of bread from the store, that’s it. The loaf of bread is gone. When someone downloads a piece of music, it’s just data until the listener puts that music back together with their own ears, their mind, their subjective experience. How they perceive your work changes your work.

Treating your audience like thieves is absurd. Anyone who chooses to listen to our music becomes a collaborator.

People who look at music as commerce don’t understand that. They are talking about pieces of plastic they want to sell, packages of intellectual property.

I’m not interested in selling pieces of plastic.

Related (to Wilco’s Yankee Foxtrot): Dark Side of the Band which, interestingly enough, has its own copyright tale - Irdial-Discs and Copyright

Hey, Cool Music. And There’s a Video Game, Too?

When the rapper Snoop Dogg’s version of the 1971 song “Riders on the Storm” makes its debut tomorrow, it will not premiere on MTV or on the radio. Instead, the song, which was recorded with the surviving members of The Doors and includes outtakes of Jim Morrison’s vocals, will be heard on Need For Speed Underground 2, a video game from Electronic Arts.

[...] The contrasting fortunes of the record business and the video game industry explain the change in attitudes. Bedeviled by file sharing and claims of overpricing its products, the record industry suffered through three consecutive years of sales declines before finally stemming the losses this year. Meanwhile, game play is on the increase, rising 26 percent a year for the last five years among men between the ages of 18 and 34, according to Nielsen Interactive Entertainment.

As a result, video games have become an important avenue for the marketing of both emerging and established artists. “The way that music is integrated into games, when it is done well, it does help build awareness for artists,” says Courtney Holt, head of new media and strategic marketing at Interscope Geffen A&M, part of the Universal Music Group. That awareness also drives sales, she said.

Electronic Arts is further exploiting its musical prowess by moving into the music publishing business. [...]

[...] “It’s becoming in many ways what radio had been during our era,” said Michael Dowling, general manager of Nielsen Interactive. Gamers “feel in some ways that they are discovering these artists and helping to push them out into the public.”

Lee Stimmel, senior vice president of marketing for Epic Records at Sony BMG Music Entertainment, added: “Music in a game like Madden is just like a new game feature - it’s not seen as an advertising feature. It’s not viewed by the user as someone programming to them.”

Hiawatha Bray tends to bring a surprisingly limited perspective to his technology columns, but he certainly got the message right in his latest: Music industry aims to send in radio cops [pdf]

So it’s possible to build up a library of decent-quality music simply by capturing these Internet streams. It’s easy, it’s fun, and it’s legal, as long as you don’t share your recordings with others. That’s because the law recognizes your right to make copies of audio or video programs for personal use.

Except it doesn’t. At least, that’s the claim of Steven Marks, the top lawyer for the Recording Industry Association of America, the trade group representing the big record companies. Horrified by my article, Marks contacted me to declare that making a music library from captured Internet music streams is just as illegal as downloading pirated MP3 tunes over a file-swapping network.

“It is not legal for anybody to make a copy of something they don’t own,” Marks said. You can legally make MP3 copies of CDs you’ve purchased, said Marks, because you paid for the disk and can do what you like with it. But you never paid for the music on the radio, and so you have no right to copy it.

[...] To prevent this, the music industry begins by asserting that there has never been a right to copy Internet audio. Next comes the effort to require built-in audio anti-copying chips in all computers. Similar efforts in Congress were met with outrage and derision, but the record moguls hope for a friendly reception from the unelected commissioners of the FCC.

In essence, the music companies want to control the design of all future home computers. It’s been their fondest hope for years, but I never understood the scope of their ambitions until I got Marks’s phone call. He intended it as a correction. I consider it a warning of yet another threat to our right to listen as we like.

Related: BoingBoing points to Susan Crawford’s posting on the broadcast flag challenge by Public Knowledge: Does the White House know? (Slashdot discussion: FCC Claims Regulatory Power Over Home Computers)

In the context of both the flag rule and the IP-enabled services proceeding that was the subject of Bellhead/Nethead earlier this fall, the FCC has said that it has “ancillary” jurisdiction to act. Translation: “Congress hasn’t said that we DON’T have the power to do this, so we’re going to go ahead on the assumption that we do.”

The FCC’s brief, filed in response to PK’s challenge to FCC’s jurisdiction in the flag matter, is breathtaking. FCC’s position is that its Act gives it regulatory power over all instrumentalities, facilities, and apparatus “associated with the overall circuit of messages sent and received” via all interstate radio and wire communication. That’s quite a claim.

FCC believes that it has simply been restraining itself up until now.

Later: See Derek’s Downloading Internet Radio