Barely Legal

It’s the dilemma of downloading: The guy in the next cubicle is using office bandwidth to download the new J.Lo album using Grokster. But then your mother sends you newspaper clippings of all of those nice-looking people getting arrested for file sharing. You want to have the records without having a record. So, there you are—caught between your greed and a guilt complex.

Until you find the silver bullet—the legal way to download music for free. Or at least almost for free. And almost legal: It’s called Allofmp3.com, and it’s the trendy, angst-free way to download copyrighted music. As the Supreme Court prepares to hear arguments tomorrow about the legality of Grokster, Aimster, and other file-sharing services, downloaders have been looking hopefully to Allofmp3.com as their only legitimate way to get 50 Cent for less than face value.

Allofmp3.com is Russian, and its self-proclaimed quasi-legality stems from its claimed ownership of Russian music distribution rights.

Johnson snapshots lead to tug of war [pdf] [via IPMemes]

In about 1935, Mississippi bluesman Robert Johnson mounted a stool at Memphis’s Hooks Brothers Photography studio, picked up his Gibson L-1 guitar, tipped his fedora and gazed into a camera lens.

Nearly four decades later, Mr. Johnson’s half-sister dug the resulting photo out of a cedar chest to show to a dogged blues historian who had tracked her down. The trunk she opened that afternoon in 1973 has since turned into a Pandora’s box.

That now-famous photograph and another one that was buried in the chest have become the subjects of a convoluted legal tug of war between the blues sleuth and relatives of the legendary musician, who died penniless and without a will in 1938. At stake: Who is the rightful owner of the iconic images, the only known photographs of the legendary musician, and who holds their lucrative copyrights?

The dispute is the final chapter in an epic legal struggle, now entering its 15th year, over Mr. Johnson’s legacy. Earlier, a dramatic trial elevated a sole heir from a handful of contenders, entitling a once-poor truck driver to share in the lucrative rights to Mr. Johnson’s music. Now the dispute over the photos is proving just as tangled, thrusting the blues historian and his business dealings into the spotlight.

“This has been an odyssey every bit as turbulent as the life of Robert Johnson himself,” says Connecticut lawyer Stephen Nevas, who represents two family members.

See also this Guiding Rights Blog entry

TechDirt points, in outrage, to a Houston Chronicle printing of a AP Wire story, As cell phones go Hollywood, who’s in control? [pdf], asking when did Hollywood get to define what a cellphone can do?

Who put the gag in Motorola Corp.’s mouth just as it was going to unveil a new cell phone featuring the iTunes music download service from Apple Computer Inc.?

Motorola initially said it acted alone, then quickly pointed to Apple, citing the computer company’s long practice of never unveiling new products until they’re actually available to buy.

Many industry players, however, suspect that a wireless service provider intervened, essentially telling Motorola that, ‘I’ll be darned if I’ll sell your phones to my customers if it means they can buy songs through Apple and Motorola without giving me a piece of the pie.’

[...] In fact, Motorola also plays a role in a second drama involving these choppy uncharted waters.

Earlier this year, a class-action lawsuit was filed in three states involving a Motorola phone sold by Verizon Wireless. The v710 handset was equipped with a short-range wireless technology called Bluetooth and was configured to work with cordless headsets. Only one problem: Its file-transfer capabilities had been disabled.

The suit insinuates that Verizon Wireless is obliging subscribers to use its cell network if they wish, for example, to send a photo taken on a camera phone to a computer or another cell phone.

Verizon charges extra for such transmissions, while a direct Bluetooth transfer would cost nothing.

Verizon says the Bluetooth function was not disabled to prevent picture transfers but rather to satisfy the demands of media companies who don’t want their content shared with nonpaying customers.

From the Code Blog, tracking the wikification of Lessig’s Code: 2005-3-20-A Note From Reed Hundt

I was chairman of the Federal Communications Commission (1993-97) when the Internet was, in a mass user sense, invented (1993-95, in my view). This is to report that a tiny group of bureaucrats did indeed sit in a room, or actually more than one room on more than one occasion, and decide that it was our great opportunity and duty to make sure that the Internet would be as nearly free as we could make it, that the telephone lines would be used by Internet service provider for as close to no cost as we could manage, that as many service providers would be able to start providing Net access as we could conceivably foster, and that we would encourage this new medium, as McLuhan predicted, to swallow all previous media and use them as content. And from 1994 to 2000 that is pretty much what happened. There are myriad specific rules that assisted in these ends coming about, which is not to say that technology and history were irrelevant. Indeed they may have been more significant causes of the various resulting effects. But it would be wrong to impute to government a lack of thought or even, in this case, foresight.

[...] Even the most extreme libertarians ought to acknowledge the historical significance of the G.I. Bill, the Marshall Plan, social security, and the atomic bomb — all world-changing events stemming from decisions by small groups in government made under conditions of limited knowledge and necessary compulsion to act. Similarly the Internet’s shape in its first decade stemmed in large part from an architecture of law designed to foster its disruptive impact and its rapid growth and its usage in particular by the young. It all could have been decided differently, as it was in most other countries and as it may well be decided differently in the broadband era. Because, you see, many of these rules have been changed in recent years, and whether all are reversed remains to be seen.

(Sorry, old news, but …) Larry Lessig points out that Yahoo! has set up a search portal directed toward content released under the Creative Commons licensing schemes.

This is exciting news for us. It confirms great news about Yahoo!. I met their senior management last October. They had, imho, precisely the right vision of a future net. Not a platform for delivering whatever, but instead a platform for communities to develop. With the acquisition of Flickr, the step into blogging and now this tool to locate the welcome mats spread across the net, that vision begins to turn real.

Local net TV takes off in Austria

The people of Engerwitzdorf are filming, editing and producing their own regional news channel.

The channel covers local politics, sports, events and anything that residents want to film and are prepared to upload for others to watch on PCs.

The pilot has been so successful that Telekom Austria is now considering setting up other projects elsewhere.

Growing Number of Lawsuits Could Hurt Google’s Ad Revenue

The Associated Press in New York and Kyodo News Agency in Tokyo have been negotiating with Google in connection with what they contend is its unauthorized use of material from the two news services.

Agence France-Presse, which had been talking to Google for almost six months in the same kind of dispute, sued the search engine in France in February and in the United States this month for $17.5 million in damages.

“The core issue is the same,” said Joshua Kaufman, A.F.P.’s lawyer in Washington. “Google is using A.F.P. pictures and stories without authorization in violation of copyright.”

The keyword lawsuits have been filed by companies ranging from the hotel chain Accor to LVMH Moët Hennessy Louis Vuitton, the luxury goods manufacturer, which in February won its case. Keyword advertising is particularly sensitive for luxury retailers because manufacturers of knockoffs and counterfeits could advertise alongside trademarked names.

That has quietly changed in France, where rival advertising has been eliminated on Google’s French Web site next to search results for prominent brand perfumes like Dior or Chanel. Yet similar advertising still surfaces with the same brand names on Google’s Web sites in Britain and Germany.

[...] According to Google’s Web site: “When we receive a complaint from a trademark owner, we will only investigate whether the advertisements at issue are using the trademarked term in ad text. If they are, we will require the advertiser to remove the trademarked term from the text of the ad and prevent the advertiser from using the trademarked term in ad text in the future.”

A Service That Aims to Make Cold Calls a Bit Warmer

The idea of circumventing the drudgery of finding potential clients helped inspire Mr. Fowler and several colleagues to start Jigsaw Data. The company, based in San Mateo, Calif., is a marketplace of business contacts that are all contributed by and, perhaps more important, vetted by the members. Jigsaw then provides the online organizing infrastructure.

“The power of Jigsaw is that we have thousands of people that collect and maintain the data,” Mr. Fowler said. “It’s the concept of many people all bringing small pieces of the puzzle, and we assemble them for the benefit of the community.”

Each contact, the company has decided, is valued at one dollar of its membership fee. Every month, the service’s members pay $25 for access to 25 contacts or, alternatively, the member can contribute 25 contacts. Other members can challenge a contact if they believe it to be invalid, but if the contact lasts 30 days without a successful challenge, the originating member is granted another contact from the pool.

[...] The vetting process is central to Jigsaw’s system, which attempts to bolster its shared data by letting anyone challenge a contact for any reason. If the challenge stands - meaning the contributor grants that the contact is faulty or does not respond- the challenger receives two new contacts.

The system also tries to prevent inconsistent information by penalizing and sometimes banning those who submit too many spurious contacts or whose challenges are frequently overturned.

“There’s some very natural self-policing mechanisms that also reinforce the constant level of quality,” says Jeff Crowe, a partner at Norwest Ventures, which, along with El Dorado Ventures, financed Jigsaw with more than $5 million. “So the fact that the users are motivated to keep up the quality level is a very powerful concept.”

Supreme Court to Hear Case on Cable’s Regulatory Duties

The case revolves around a ruling issued in 2002 by the Federal Communications Commission that the service provided by cable companies should be defined as an “information service,” and not a “telecommunications service,” which is the designation given to traditional telephone companies.

Companies with the “information service” designation do not have to comply with regulations requiring them to lease lines to competitors, or meet certain service standards and state public utility requirements.

In October 2003, the United States Court of Appeals for the Ninth Circuit, responding to a lawsuit filed by an Internet service provider called Brand X, rejected that F.C.C. interpretation. The court, in upholding a lower court decision, found that cable providers cannot be relieved entirely of obligations placed on telecommunications services.

The cable industry and the Bush administration are appealing that decision. The case is at the heart of an evolving regulatory environment in which telecommunications providers, including traditional telephone and cable companies, are seeking greater freedom from government oversight.

See also Infoworld’s Supreme Court to hear cable modem case

U.S. broadband customers would have more choices of providers, and the new competition could drive down prices if the Supreme Court rejects a U.S. Federal Communications Commission (FCC) attempt to classify cable modem service as an unregulated information service, say the ISPs pushing for cable-sharing rules.

Supporters of the FCC action say broadband adoption in the U.S., hailed by President George Bush and other politicians as an engine of economic growth, would slow if cable providers were forced to share their networks with competing ISPs. Cable providers would have less incentive to improve connection speeds and otherwise upgrade their networks if they have to sell their networks at wholesale prices to competitors, said Dan Brenner, senior vice president for law and regulatory policy at the National Cable and Telecommunications Association (NCTA).

[...] The Brand X case … is nothing less than a battle for the soul of the Internet,” Jeff Chester, the Center for Digital Democracy’s executive director, said in December. “While the cable industry is intent on transforming the Internet into an extension of its tightly controlled cable business, it is critical that we maintain an open, nondiscriminatory platform for the exchange of ideas and information.”

Under New Chief, F.C.C. Considers Widening Its Reach

Leading lawmakers and the new leader of the F.C.C. have proposed a broad expansion of indecency rules, which were significantly toughened just last year. They are also looking for significant increases in the size of fines and new procedures that could jeopardize the licenses of stations that repeatedly violate the rules.

Some senior lawmakers, including Senator Ted Stevens, the Alaskan Republican who is the leader of the Commerce Committee, as well as Kevin J. Martin, the new chairman of the commission, have suggested it may be time to extend the indecency and profanity rules to cable and satellite television providers, which now account for viewership in 85 percent of the nation’s homes. And organizations opposing what they consider indecent programming have joined forces with consumer groups that have been trying to tighten regulation over the cable industry and force it to offer consumers less expensive packages of fewer stations, known as à la carte services.

Some of the anti-indecency groups see à la carte services as a way of helping consumers block out programming they consider indecent. “We are at a rare moment when there seems to be bipartisan energy on both sides of the political aisle and both sides of the ideological divide,” said L. Brent Bozell, president of the Parents Television Council, a leading advocacy organization that officials say has been responsible for the vast majority of complaints against the broadcasters.

Mr. Martin and the senior Democrat on the commission, Michael J. Copps, have consistently been among the most aggressive members of the agency on indecency issues. President Bush is expected shortly to announce the appointment of two new members to the five-person commission. Those appointments will determine whether the views of Mr. Martin and Mr. Copps on indecency issues will prevail at the agency.

See also Donna’s post on how the FCC’s expansion of its purview has influenced Microsoft policy - Why Microsoft Won’t Fight the Broadcast Flag

• CNet News: Top court to hear landmark P2P case Tuesday

  Ken Fuhrman’s Colorado-based start-up company is a television junkie’s dream, making powerful home media servers to hold digitized versions of television shows, movies and music.

  But Fuhrman is worried. On Tuesday morning, the Supreme Court will hear arguments on whether file-swapping software companies Grokster and StreamCast Networks should be held responsible for the widespread copyright infringement on their networks, and he’s afraid his company, Interact-TV, could be affected too.

  Like many other technology entrepreneurs, he owes his business to a 20-year-old court ruling that said the Sony Betamax VCR was legal to sell, even though it could make copies of television shows. Tuesday’s file-swapping case is the first time in 20 years that the Supreme Court has revisited that landmark ruling in a substantial way.

  If not for Betamax, “we wouldn’t have done the products we’re doing now,” Fuhrman said. “Trying to repeal or modify those rules would strangle innovation on the digital media front.”

  See also FAQ: Betamax–tech’s favorite ruling

  If copying at home is OK, why are people being sued for file-swapping?
  People who are uploading music though peer-to-peer networks aren’t viewed as doing it for personal use. Their actions potentially have an effect on the market for music or videos in a way that recording a TV show and watching it later does not. Record labels have said that “ripping” a CD to MP3 files, or burning a few copies, as long as they’re for personal use, is OK.

  OK, but why isn’t DVD-copying software legal?
  Home copying is legal, but entertainment companies aren’t required to let you do it. There’s another law called the Digital Millennium Copyright Act which makes it illegal to break through any antipiracy protections put on digital media. Movie studios protect their DVDs against copying, and so all the software that breaks through this protection is illegal to distribute in the United States.

• Wired News: Supreme Showdown for P2P’s Future

  “All these internet technologies share this common mass-copying capability: e-mail, web servers, web browsers, basic hard drives,” said Jason Schultz, an attorney with the Electronic Frontier Foundation, which represents StreamCast Networks. “There’s no principal distinction between (P2P) and other internet technologies in the way it’s designed.

  “I think the court will find it very, very difficult — if not impossible — to draw any distinctions between the programs in front of them in this case and other internet communication programs,” he said.

  [....] The Supreme Court is expected to rule on the case in June. Whatever the outcome, observers think the issue may end up in Congress.

• NYTimes: A Supreme Court Showdown for File Sharing

  The case, M.G.M. v. Grokster, is in many ways the culmination of five years of escalating legal, technical and rhetorical attacks against file-sharing systems and their users by the music industry. It is being eagerly followed by a range of media and technology companies because the court may use this case to redefine the reach of copyright in the era of iPods and TiVo.

  But no matter how the court rules, both music executives and file-sharing advocates like [LineWire's Mark] Gorton agree that it will probably always be possible for fans to find loads of free music with a few clicks of a mouse.

  [...] [S]ince the court can do little to alter the spread of technology or the interests of copyright owners to protect their material, many expect something resembling a permanent war.

• NYTimes Editorial: When David Steals Goliath's Music

  The founders wrote copyright protections into the Constitution because they believed that they were necessary for progress. Movies, music and books require investments of money and time. If their creators cannot make money from them, many will be unwilling or unable to keep producing. Or they may have to finance their work in troubling ways, like by building in product placements or taking money from donors with agendas.

  Grokster’s supporters are justified in worrying that if the courts are too quick to rein in new technology, innovation can be stifled. They are also right to point out that copyright has sometimes been given too much protection, notably in the Copyright Term Extension Act, which gratuitously added 20 years to existing copyrights. But these concerns do not erase the continuing importance of intellectual property, which is unquestionably under assault.

  Both the court and Congress should be sensitive to evolving technologies. But they should not let technology evolve in a way that deprives people who create of the ability to be paid for their work.

• CNN (largely a regurgitation of earlier info): Stolen songs: Who’s to blame? [pdf]

• LA Times: High Court Prepares for Case Against File Sharing [pdf]

  However the case turns out, the loser is widely expected to take the issue straight to Congress, where lawmakers have struggled to reach consensus on online piracy.

  The case has driven a wedge between two groups — large-scale copyright holders and technological innovators — whose works and ideas receive special protection under federal law. Both sides contend that they have as much or more at stake as they did when the court took up two studios’ lawsuit against Sony Corp. over the Betamax home video recorder.

  [...] Several copyright experts predicted that the court would try to adapt Betamax to the Digital Age, offering at least a clearer definition of “capable of substantial non-infringing use.” If the Betamax shield applied to any product that could someday be put to legitimate use, then every technology would be protected, said attorney Georges Nahitchevansky of Fross Zelnick Lehrman & Zissu, a firm that represents numerous entertainment companies.

  “You can’t let technology developers just say, ‘All right, I’m going to come up with alternative usages,’ knowing full well [their product] is going to be used to facilitate infringement,” Nahitchevansky said.

  Said Stacey Dogan, an associate professor of law at Northeastern University: “It’s easy to oversimplify the Betamax case. It’s easy to describe it as ‘technology must always prevail.’ But the Supreme Court in that case was actually trying to achieve some balance between the interests of copyright holders and those of technology developers.”

• USA Today interview with Sony BMG CEO Andrew Lack, staking his position: Sony BMG exec seeking balance [pdf]

  Q. Instead of attacking a technology, isn’t it your challenge to find ways to use it constructively?

  A. I’ve tried. The P2P services … aren’t willing to discuss in good faith a legitimate usage of their material. … There are new technologies that would allow someone to use a service and purchase the music at an agreed-to rate.

  The reason they aren’t employing these new technologies, I think, is because they believe they’ll go out of business. They’ve said to me, “Well, if everyone would do it, we’d do it. But not everybody will do it.” That’s where the courts and Congress should step in and say everyone should do it. Then I look forward to negotiating with these services and converting them to legitimate models.

• Two other USA Today articles: Who’s liable for actions of people who share? [pdf] and Online file sharing to face judicial test [pdf]

• Wired News: Supreme Showdown for P2P’s Future

Donna points to the critiques; and finds an entertaining article in the UK Times: Downloaders of the world unite [pdf]