December 8, 2004

So, What Does This Mean? [6:05 pm]

End of the “Idol” machine in Oz? Or a market flip in distribution? Did downloads curb ‘Idol’ single sales?

Lower-than-expected sales for the single from Casey Donovan, this year’s Australian “Idol” TV show winner, may be due to fans preferring to pay for downloads of the track. [emphasis added] While Donovan’s single “Listen To Your Heart” debuted at No. 1 on this week’s ARIA chart, it sold far fewer copies than last year’s winner, Guy Sebastian. According to music news site Undercover, Donovan’s single sold 35,817 copies in its first week, while Sebastian’s tune sold 128,679–more than three times as many.

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Color Him Confused [5:37 pm]

Been a while since I’ve made a pass by TechCentralStation, but this muddled argument made it worth the trip: Bill Clinton Gets a Taste of His Own Medicine

It’s never nice to wish someone a taste of his own medicine, but since it has already happened to Bill Clinton, here’s hoping some good will come of it.

The subject is his runaway hit memoir, “My Life,” which according to reports in the New York Times has recently become the latest victim of copyright infringement in overseas markets. Despite official distribution of the work in Asia, many of the copies on the street are hastily pirated versions — sold for a fraction of the price and without any of the royalties due its rightful author.

[...] It would be funny if it weren’t so serious — or so redolent of the policies Mr. Clinton himself has supported in another arena of great demand and Western prices. That is, knockoff drugs to fight AIDS.

Since leaving office, Mr. Clinton’s Presidential Foundation has been engaged with a number of international health activists and charity organizations in trying to provide AIDS medicines to the countless suffering from the disease in underdeveloped countries in Africa, Asia and South America.

But while the goal itself is worthy, the Clinton Foundation has been a leading supporter of the use of knock-off pills, produced without permission or supervision by generics manufacturers in countries that do not recognize international patent rights.

So, let’s see. We get the conflation of copyright with patents, continuing the push toward “intellectual property,” without considering the distinctions between the two legal regimes. Then there’s the convenient neglect of the possible ethical and policy distinctions between a life-and-death and the extraction of economic rents. And finally, it’s the interesting celebration of government regulation from a group generally focused upon the idea that the market/profit motive is the answer to all problems — except in the case of IP, apparently. I mean, in this article, profits are downright unethical!

Ah, well. As I said, entertaining.

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Will This Go Anywhere? [5:18 pm]

MI2N posts this press release on the recently-decided Rossi v. MPAA in the Ninth Circuit: Ninth Circuit Court Ruling Gives Unmade Movie Future Protection Under DMCA. The point of the press release is that the “good faith” provisions of the DMCA allow the MPAA to submit (and prevail on) a notice and takedown even when the notice is factually impossible, to wit:

The MPAA claimed that, in 2001, made available for illegal download the third installment of The Lord of the Rings, not finished until 2003. The MPAA issued a cease and desist order to’s ISP to shut down the site.

Interestingly, the Ninth Circuit’s opinion never discusses the content of the notice and takedown, other than to assert that:

As discussed above, the MPAA exercised its statutory rights and acted reasonably in communicating with Rossi’s ISP about the allegedly infringing material on Accordingly, the MPAA’s statements to Rossi’s ISP were privileged.

“Privileged” — maybe no longer, now that Rossi seems to have taken his complaint online. Wonder if his lawyer knows he’s taking this approach?

This is the kind of opinion that demonstrates why you need to bring in professionals — there are enough terms of art in the writeup that it’s only possible for a layman like myself to grasp the basic elements. In this case, the opinion focuses on the distinctions between “good faith belief” and and an objective standard in submitting a notice and takedown, and gives some surprisingly broad (at least, IMHO) leeway to copyright holders:

A copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake. [...] Rather, there must be a demonstration of some actual knowledge of misrepresentation on the part of the copyright owner.

Now, it appears that Rossi is taking his argument public, asserting that the MPAA knew full well that the couldn’t possibly have the LoTR:RoTK available for download in 2001. It will be interesting to see if this goes anywhere.

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More Schools Succumb [4:49 pm]

Napster Adds Four Schools to Groundbreaking University Program

Napster, a division of Roxio (Nasdaq: ROXI), announced today that four more prestigious schools will enable their students to access Napster’s award-winning digital music subscription service at a significant discount. Beginning this January, students at Eastern Michigan University, the University of North Carolina, North Carolina State University, and the University of Tennessee at Knoxville will be able to enjoy the service that boasts the largest music catalog and more community features than any other, providing a compelling alternative to illegal peer to peer sites.

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Paul Boutin Picks a Next-Gen DVD Format [4:39 pm]

HD-DVD Must Die - Sony’s Blu-ray is the better next-generation DVD

Tech writers are bracing for a VHS vs. Betamax-style format war, with consumers forced to choose sides or buy two separate, incompatible players. Last week’s stumping for HD-DVD, which is sponsored by Toshiba and NEC, can only be read as a pre-emptive effort to make Sony’s Blu-ray look like Betamax 2.0—a technology that’s doomed to fail because all the movies you want will only be available on its competitor. If Hollywood makes that story come true, consumers won’t get a happy ending. There’s only one real difference between these next-generation DVDs and today’s models: storage capacity. The best format, then, is simply the one with the most possible storage space. By all accounts, that’s Blu-ray.

[...] It’s pretty obvious that HD-DVD isn’t being rolled out to benefit high-definition-deprived viewers. Consider that HD-DVD reps told the Times that, rather than increase capacity, they’re “considering more efficient software compression” to squeeze longer high-def movies onto their disks. Isn’t the whole point of these new disks that they’ll accommodate high-definition formats without stripping them of their high resolution?

The good news is that if HD-DVD does turn out to be a low-capacity sham, Hollywood probably won’t be able to force it down our throats. DVDs aren’t just for movies anymore: Whichever disk wins out will almost certainly become the standard for new computers, game consoles, and other gadgets, just as CD and DVD drives did. It’s unlikely that computer users—or computer manufacturers—will settle for a medium that stores 30 gigs of data rather than 200 because it saves Warner Bros. a little money.

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Missed This [2:18 pm]

Transposing the Copyright Directive: Legal Protection of Technological Measures in EU-Member States: A Genie Stuck in the Bottle? (via CoCo and Derek)

[T]he purpose of this study is twofold. First, it aims to provide an overview of the current state of implementation within the EU. Second, it seeks to provide a high-level overview of the ways in which EU member states have transposed the EUCD’s thorny provisions on the protection of technological measures — such as encryption, digital watermarking, copy-control technologies, etc, into national law in general, and to take a closer look at the relevant definitions, exemptions, sanctions and remedies in particular.

In this context, an initial analysis reveals that uncertainty over the scope of provisions aimed at protecting technological measures as well as the definition of crucial terms (such as ‘effective measures’) persists — even at a rather basic level. The question, for instance, as to what extent access control mechanisms fall under the definition of technological protection measures and, as a consequence, are protected by the anti-circumvention provisions has been contested.

Further, the study explores different ways in which national implementations have addressed the problem of privately applied technolgical protection measures vis-a-vis the traditional exceptions to copyright within the framework laid down in the EUCD. [...]

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Maybe I’m Missing Something [1:56 pm]

I’ve seen a couple of references to this article from The Economist on P2P, In praise of P2P [pdf], and, while it says some nice things about P2P technology, it also reveals some surprising blind spots. Or maybe they are just symptomatic of the thinking of those who still don’t quite “get” this Interweb-thingy.

With all this resource-sharing and decentralisation going on, one might be tempted to think the internet is finally becoming one big happy community, as some of its more optimistic visionaries had hoped. Alas, bursting that bubble is Bernardo Huberman, the director of the Information Dynamics Lab at Hewlett-Packard Laboratories. “P2P is an architecture–what we need is a market mechanism,” he says. [emphasis added] That way, P2P users can be properly compensated for sharing their computing cycles, storage capacity or bandwidth with others. His researchers have, for example, devised a system called Tycoon, which auctions off spare computing capacity. This sort of approach, he argues, is vital if P2P applications are to develop from today’s volunteer systems into something big firms might want to adopt. “If you noticed coins dropping into your machine, you might be tempted to do that,” he says.

Isn’t there’s a logical disconnect when someone demands financial compensation for sharing? Or am I just one of those unreconstructed reprobates who doesn’t believe that all my problems can be solved by (choose one):

  1. the market;

  2. the government; or
  3. the Supreme Being?

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Salon on BandAid, Revisited [10:34 am]

What do they know?

Like its predecessor, Band Aid 20 has churned out — surprise, surprise! — a hunk of sentimental garbage that has — again, surprise! — shot to the top of the U.K. charts.

But what’s really astounding is that 20 years later — 20 years down the road toward cultural sensitivity — Geldof and his pals recorded the same incredibly clueless song, “Do They Know It’s Christmas?” [...]

[...] And where can you find this delightful song? Well, if you live in the United States, where it’s not available for sale, you can do as I did and go to your favorite file-sharing network and download a copy — no doubt condemning my soul to eternal damnation for stealing a charity song. Or you could watch the video here. And how to solve the problem of hating the song but wanting its charitable mission to succeed? Band Aid Dilemma has a brilliant solution.

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More Delay on EU S/W Patent Vote [10:29 am]

EU patent decision delayed till ‘05

“The competitiveness council will not vote on this project before 2005,” Belgian minister Marc Verwilghen told his parliament on Tuesday, according to a summary transcript of his speech.

Verwilghen also told the parliament that there is a problem because the EU Council no longer has a qualified majority, according to a report by anti-patent group Foundation for a Free Information Infrastructure (FFII).

[...] Florian Mueller, founder of an anti-patent Web site, said that the EU Council could still adopt the proposal but that the delay may be a sign of mounting political pressure.

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Here We Go [8:45 am]

So, here’s my question upon reading this news — Chinese firm buys IBM PC business. Exactly how interested will a Chinese manufacturer (3rd largest in the world) be in incorporating hardware controls that comply with US copy protection policies, but also cripple the product?

Slashdot’s Going, Going, Gone: IBM Sells PC Group To Lenovo

Later: A response from Rik at CoCo.

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Tim Wu Channeling Jessica Litman [8:37 am]

Donna points out a key point from Ernest’s interview of Tim Wu

[T]he FCC is slowly building a complicated replica of the copyright law in what are called its “Broadcast flag” & “Plug-n-Play” proceedings. The goal is to control the problem of Tivo and similar devices. You might be wondering: what Tivo problem? Isn’t Tivo a good thing? But the fact that Tivos might be used for copyright infringement has spurred the FCC into action, in proceedings that seem destined for tragedy. The effort bears a close resemblance to what is called the FCC’s “Vietnam,” its efforts in the late 1960s to control the growth of cable television. Those were among the most disastrous and embarrassing episodes in FCC history. Meanwhile the real work of the FCC is languishing. What has happened, for instance, to large-scale spectrum reform? [...]

Copyright law should limit itself to promoting authorship, and communications law should forget about content regulation. That may, again, not sound very radical, but the fact is that today the two areas of law moonlight for each other in fairly shameful ways. Copyright is used to do things that would be embarrassing to propose in communications policy circles. Meanwhile, the FCC is effectively implementing copyright laws that couldn’t get through Congress.

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Setting Precedents [8:16 am]

Hollywood allies sue DVD jukebox maker [via TechDirt] - Note the repeat of the incredibly inaccurate canard that CSS is about preventing copying, when it’s well-established that CSS is all about preserving region coding/control of distribution — nothing in CSS prevents bit-for-bit copying.

A Hollywood-backed technology group is suing a high-end home theater system company, contending that its home DVD jukebox technology is illegal.

The DVD Copy Control Association, the group that owns the copy-protection technology contained on DVDs, said a company called Kaleidescape is offering products that illegally make copies of DVDs. The company, which has won several recent consumer electronics awards, said it has worked closely with the DVD CCA for more than a year, and will fight the suit, filed Tuesday.

[...] “The express intent and purpose of the contract and CSS are to prevent copying of copyrighted materials such as DVD motion pictures,” Bill Coats, a DVD CCA attorney, said in a statement. “While Kaleidescape obtained a license to use CSS, the company has built a system to do precisely what the license and CSS are designed to prevent–the wholesale copying of protected DVDs.”

The DVD technology group has stepped up its efforts in recent months to control hardware that it believes isn’t abiding by the rules of DVD copy protection, suing several chip companies. The Kaleidescape lawsuit in particular could help put legal boundaries around the burgeoning home theater market.

[...] The products don’t come cheap. A basic system, storing 160 movies, sold for about $27,000 earlier in the year.

Later: Slashdot - DVDCCA Sues Maker of Luxury DVD Jukebox; Washington Post: Film Industry Sues DVD Jukebox Maker [pdf]; Freedom To Tinker’s DVD-CCA Sues to Suppress Kaleidescape Product; Copyfight’s DVD CCA on the Prowl

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Those Negativland Troublemakers! [7:43 am]

EBay Negative on Negativland IPod

The iPod U2 vs. Negativland Special Edition commemorates a 1991 copyright battle between the two groups. Negativland released a single that parodied U2’s “I Still Haven’t Found What I’m Looking For” without permission. The collage group believes the song, and its other creations, are fair use. U2’s label, Island Records, sued Negativland and the case was eventually settled out of court. Negativland’s controversial song, “U2,” is illegal to sell in the United States and was not included in the auction.

Hwang’s auction offering included all the standard features of the U2 iPod plus the addition of the Negativland albums loaded onto the device. The Negativland CDs were also included. Hwang also meticulously modified the cardboard box, labeling it iPod Special Edition U2 vs. Negativland and adding pictures of the collage band to the box. Hwang also included a disclaimer in the auction that states that Apple did not authorize the work, so there is no confusion for the buyer.

[...] The item received nine bids — topping out at $455 — before it was pulled “because an intellectual-property rights owner notified us … that your listing infringes the rights owner’s copyright, trademark or other rights,” according to an e-mail Hwang received from eBay.

[...] Several intellectual-property attorneys said they didn’t see a reason for removing the listing.

“If he’s just modifying the box, he’s just reselling the box that the goods came in,” said Scott Hervey, an attorney based in Sacramento, California. Plus, “there’s no copyright infringement of the sound recordings.”

Later: Archived copy of the eBay posting

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December 2004
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