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June 30, 2005

The Return of “Convergence?” [7:54 am]

Years After Giant Flop, Online Media Take Hold [pdf]

Five years ago, at the height of the dot-com boom, entrepreneurs and visionaries predicted that new online venues would overtake traditional media as viewers like Finn enjoyed shows and other content tailored to their tastes and schedules.

It didn’t happen.

[...] But it turns out the dot-com crash may just have been the prologue. After licking their wounds, a rash of companies — including small players such as ManiaTV, Web giants such as Yahoo Inc. and traditional media titans such as Walt Disney Co. — are again investing heavily to bring more audio and video to the Internet.

This time, though, few people expect a crash because the companies are making money, capturing audiences and, yes, transforming the way news and entertainment are produced and consumed.

Technology has improved. People have grown accustomed to getting news on their BlackBerries and watching video on their computers. And old-media giants are working with the new-media leaders to make changes more soberly.

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N+784 [7:46 am]

RIAA sues new group of 784 swappers

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Lessig Interview on Grokster [7:28 am]

From BusinessWeek: “Ten Years of Chilled Innovation” [pdf]

Q: So the problem with the decision is just that the Supreme Court rendered an opinion at all, rather than letting legislators decide?

A: Right. By making it a process that goes through the courts, you’ve just increased the legal uncertainty around innovation substantially and created great opportunities to defeat legitimate competition. You’ve shifted an enormous amount of power to those who oppose new types of competitive technologies. Even if in the end, you as the innovator are right, you still spent your money on lawyers instead of on marketing or a new technology.

In Congress, we might have a lot of argument about what the statute should look like. But that would be a process that would resolve this intensely political issue politically. Instead, Justice Souter engages in common-law lawmaking, which is basically judges making up the law they want to apply to this particular case. And not just Supreme Court judges — what they’ve done is invite a wide range of common-law lawmaking by judges around the country trying to work out the details of what this intent standard really is.

Q: Do you think in fact we’ll see a dampening of innovation?

A: Yes. Now, I don’t think we’re going to see tons of litigation. What you’re going to see is innovation that’s channeled in ways the copyright owners can agree to, or channeled in ways that avoids any kind of possibility of this kind of litigation.

That has already had its effect in the Valley, and already money has shifted into places which will avoid any conflict with the copyright holders. Why buy a lawsuit when you can buy a new innovation that doesn’t get you a lawsuit? And you don’t even see it — you don’t even know what you don’t get because people are afraid.

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June 28, 2005

P2P Distribution and Promotion [2:19 pm]

Rejected TV Pilot Thrives on P2P [via Slashdot]

A sacked TV pilot about a large number of people who stay in touch through an underground data network has popped up on … well, an underground data network.

The WB television network passed on the pilot for Global Frequency, a sci-fi adventure series based on the graphic novel by English scribe Warren Ellis.

But that didn’t stop someone from leaking the pilot on the internet. The file eventually found its way into the BitTorrent network.

Over the last couple of weeks, enough people have downloaded and viewed the pilot online to give producers hope that TV executives might take a second look at the show.

[...] [WB spokesman Craig] Hoffman added that the pilot’s unauthorized distribution is “unacceptable and illegal … no matter what the underlying motives” and said the company hasn’t ruled out taking legal action “when it comes to stopping the illegal distribution of our copyright material.”

[...] Morpheus CEO Michael Weiss called the leak “just another positive example” of P2P.

“There have already been countless success stories on how musicians — either aspiring or established — have turned to P2P to build or reinvigorate their careers,” he said. “It is not surprising that the same effect is now beginning to happen in film and TV.”

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Siva on Grokster at Salon [11:33 am]

Supreme Court’s unsound decision

The peer-to-peer phenomenon is often miscast as the proliferation of a radical set of technological tools meant to steal music. But the fact is, the Internet is fundamentally peer-to-peer. All that Grokster, Kazaa, or LimeWire do is let you efficiently search for keywords of content that sits on other people’s hard disks. If you have a problem with peer-to-peer you have a problem with the Internet. And short of shutting it down or radically reengineering it, there is nothing that Hollywood or Washington can do to stifle the file-sharing capabilities of those who use the Internet. Regardless of Monday’s decision, the software, music and movies will keep on flowing.

But the grand innovations in American technology may not. If the lower courts read the court’s ruling broadly, watch out: This could severely restrict other, more important innovations for decades to come. Even without broad readings, the courts could soon be filled with frivolous copyright suits against technology companies — handing big entertainment companies like MGM a potent economic weapon to wield against smaller innovators and upstarts that are developing new devices and models of distribution. Souter struggled to construct a decision that would not impede the inventor in her garage who is tinkering away at the next great thing. The problem is, she will definitely have to hire a lawyer now.

[...] What about Google? Consider this: Google, like Grokster, is primarily a search engine. Its business model relies on advertisements. And the more we use Google, the more money it makes. Like Grokster, Google resolves communication queries. It generates a link from an information provider to an information seeker. And almost all of what it delivers is copyrighted.

The fact that no major copyright industry player has brought Google to court so far is merely a function of the fact that most copyright holders want Google to index and offer links to their materials. There is no explicit contract. You have to opt out of the Google world.

But there is one major difference between Grokster and Google. Grokster does no copying itself. It merely induces and enables.

If anyone infringes, it’s Google: The company caches millions of Web pages without permission (again, giving copyright holders the option of protesting).

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CDT Set Up Public Access To Congressional Policy Briefings [7:53 am]

Hard-to-Get Policy Briefings For Congress Are Now Online — The CDT is asking for a collaborative effort — ask your Congressperson for copies of Congressional Research Services reports in PDF form, and then upload it to their file sharing site set up to distribute these otherwise difficult to access reports.

A Washington research group has created a Web site where the public can read, submit and download the difficult-to-find public policy briefs members of Congress use to get up to speed on issues.

The Center for Democracy and Technology has created an online database of Congressional Research Service reports that anyone with an Internet connection can now tap free of charge.

[...] The CDT, a technology policy organization, complained that the reports are paid for with taxpayer money and ought to be readily available for free to anyone who wants one.

“Taxpayers pay $100 million a year for this resource, yet they don’t have ready access to it,” said CDT spokesman David McGuire. “We don’t think they should have to pay twice to get their hands on it.”

McGuire predicted the Web site, http://www.opencrs.com , will find an audience among academics, reporters, bloggers, librarians, college students and anyone else looking to bone up on an issue.

[...] “Take Action!” the Web site says. “Call your members of Congress and request a PDF copy of the following CRS report. Once you receive it, submit it to Open CRS.” The group estimated it has collected almost half of the reports the agency has produced in the past five years.

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Brand X Roundup [7:37 am]

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Grokster Roundup [7:31 am]

Well, I still haven’t read the opinion, but here’s a set of articles that purport to explain it all to you. While it appears that the innovation issues raised to get mention, most writers seem to be falling back on the tired “theft” argument, rather than asking whether the construction of copyright is as misguided as their misguided and perjorative conflation of copyright infringement with thievery.

And, of course, since this is formally only a remand, there’s still the question of what it will take to make the apparently necessary showing of intent to promote infringement to actually win a suit. Mind-reading is not that easy to accomplish, even if the Supreme Court says you are now allowed to. But the chilling effects of the assertion that now one must consider such things when devising new technology in the face of increasingly calcified legal constructs is the real worry here.

  • CNet has a roundup of articles:

  • Boston Globe: Suits OK’d against makers of file-sharing software [pdf] and Some doubt ruling will stop downloading [pdf]. Worse, this nasty editorial: High court harmony [pdf]

  • NYTimes: Justices Reinstate Suits on Internet File Sharing — this article at least points out that it’s still up to the courts to make a ruling, as well as putting a lot of faith in the notion that “inducement” is something that distinguishes legal and illegal technology deployment

    On the other hand, groups including the American Civil Liberties Union, Consumers Union, the Consumer Electronics Association and other elements of the computer and technology industries warned the court that too broad a rule of contributory copyright infringement would stifle innovation if there was a possibility that consumers might put a product to an infringing use.

    It was clear from the opinion, Metro-Goldwyn-Mayer Studios Inv. v. Grokster Ltd., No. 04-480, that the justices had taken note of that argument and tried to draw a line that would protect both copyright holders and innovators. The court identified the line as “inducement” - deliberately urging consumers to make illicit use of the product or showing them how it could be done.

    “Mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability,” Justice Souter said. He added: “Nor would ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability in themselves. The inducement rule, instead, premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.”

  • Another NYTimes view: No Pot of Gold in Court Ruling for the Studios

  • Washington Post: File-Sharing Firms Can Be Held Liable [pdf]

  • Wired news’ Grokster Loss Sucks for Tech

  • Slate’s A Supreme Court Conversation - Part 6

    The most interesting part about Grokster is that it purports to leave Sony untouched, while adding this new cautionary against operating a crooked business. In other words, the court is saying that it’s all about the marketing. By this logic, if Xerox in the 1970s had said,”Don’t buy that textbook—photocopy it!” the photocopier, just like that, would have become contraband.

    If a rule that’s based on marketing seems odd, that’s because it is. Can we really know, by looking at a company’s ads, whether they’re up to no good? The aftermath of Grokster will be a long debate over what exactly it means to “promote” violations of copyright. [...]

    What the court is doing boils down to asking judges to be on the watch for monkey business. In the eyes of the justices, companies like KaZaA and Grokster were clearly up to no good, but iTunes—now there’s a respectable operation. What the court is trying to do, however awkwardly, is prevent copyright from killing new technologies while at the same time preventing scofflaws from getting away with the technological equivalent of murder. The result is almost like a rule of etiquette—yes, you can sell something that will destroy the recording industry, as long as you don’t flaunt it. That’s a lesson that’s already been learned by Steve Jobs’ iTunes, the leading legitimate music download service. The court, in short, has cursed KaZaA, blessed iTunes, and told us that TiVo is OK, too. And while today’s decision nominally declares victory for the recording industry, I doubt there will be much celebration going on in industry headquarters tonight.

A reader points me to further roundups (thanks, Luis!) — while pointing out that it’s worth reading the opinion for yourself [something I have not yet managed :( although links are here]

A Wall Street Journal roundtable

Later: a glowing Washington Post editorial: No License to Steal [pdf]

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June 27, 2005

0 For 2!?! [11:28 am]

The opinions: National Cable & Telecommunications Assn. v. Brand X Internet Services and Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.

Supreme Court rules against file swapping and Cable wins Supreme Court battle — lots to read - and no time today.

EFF’s Grokster reading guide.

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Big Day Today [7:55 am]

So, about the time that Grokster and Brand X get handed down, I’ll be moderating a panel session at a conference being held here today. (Not that I’ve been that effective at staying on top of the news the past couple of days, for this and other reasons <G>) Ordinarily, I’d sneak peeks from my laptop, but it’s kinda hard to do that when I’m supposed to be in charge. Something to look forward to when I’m done.

Not to mention the fallout if more than one Justice announces his/her resignation!

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Magnatune, Others Profiled [7:39 am]

Continuing the evolution of the digital distribution models: Online music stores singing a new tune: No big labels allowed [pdf]

Launched in the shadow of large digital distribution empires such as Apple’s iTunes and Napster, these independents-only music stores are designed to serve musicians who find themselves buried beneath the major labels’ artists.

Even on the Internet, where inventory isn’t limited by real-world display space, unsigned artists don’t stand a chance unless they have a record deal.

But the tables are starting to turn, with the emergence of indie-only online music stores that not only give exposure to musicians on independent labels but to unsigned musicians. Businesses like Audiolunchbox.com and Magnatune.com are changing the way fans download music.

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Stopped Clocks Right Twice A Day… [7:36 am]

And Hiawatha Bray gets it right on occasion, too: Local WiFi plan turning into a federal case [pdf]

If Boston Mayor Thomas M. Menino is tempted to imitate the Philadelphia plan, he may have to clear it with Pete Sessions, a Texas Republican in the US House. This month, Sessions offered a thoroughly odd bill that would ban cities from running communications networks that compete against private-sector telecom companies.

Those of you who thought Republicans believed in states’ rights might be puzzled. If the leaders of Philadelphia or Boston or Sioux Falls want to dabble in WiFi, why should a Texas congressman make a federal case of it? Maybe it has to do with his previous career as an executive of SBC Corp., a large phone company that isn’t too eager to face fresh competition.

[...] What do these examples prove? Mainly, that it’s silly to try to resolve this by law, either state or federal. This is why we have 50 states; so the various regions can experiment with different solutions. Given the fact that half of US Internet households have broadband, it’s not clear there’s really a problem here. But Philadelphians are keen on making the effort, and the rest of us can learn from their experience. It may prove to be a fiasco, but I don’t pay taxes in Philly.

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June 26, 2005

Today’s Monty [3:49 pm]

Don’t miss it: Monty; 2005 June 26

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June 24, 2005

Another Round of Ringtone Stats [3:07 pm]

Ringtones make sweet music for record label [pdf]

Plus, some thistling past the graveyard by Sony:

While download services like Apple Computer Inc.’s (Nasdaq:AAPL - news) iTunes seem to have settled on a standard price of 99 cents per song, ringtone sellers can charge two to three times as much for a 15-second snippet.

“This is not a fad that will go away in the next year or so,” said Thomas Hesse, president of global digital business at Sony BMG Music Entertainment.

[...] “Ultimately we believe the phone will be the player of choice for mobile music,” said Sony’s Hesse.

Sony BMG already makes as much money from ringtones as it does from computer-based digital downloads, and ringtone revenues at rival EMI Group Plc (EMI.L) only slightly trail those from song downloads.

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Declan on the Brewing Public WiFi Battles [11:16 am]

Should cities be ISPs?

An opening federal salvo has come from Rep. Pete Sessions, R-Texas, who introduced a bill last month that would effectively prohibit state and local governments from providing Internet, telecommunications or cable hookups if a private company offers a “substantially similar service.” Existing municipal services already in place would be permitted to continue.

[...] Another bill veering in precisely the opposite direction could be introduced as early as this week by Sens. John McCain, R-Ariz., and Frank Lautenberg, D-N.J. Their proposal, the Community Broadband Act of 2005, is expected to permit a town or city to explore the option of deploying its own broadband network.

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OT: Poor Wendy…. [10:48 am]

The EFF’s Wendy Seltzer gets skewered in one of the entries for this week’s Photoshop Phriday, Sensational News Stories! — the perils of a bad frame and video capture software.

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Promotion in the Digital Age [8:28 am]

Fans Spread Jams With Music Mixes

Music fans once turned to radio DJs to expose them to new music. But as music grows on the net, listeners are relying on friends and strangers to feed them — often in creative combinations.

Forget the album and corporate radio. Fan-built playlists and mixes are taking over the way people get their music.

[...] While amateur mixing has been around since the days of taping the radio, making mixes is faster and easier with digital songs. And as people pick and choose what they like, they are sharing these musical collages with their friends — and strangers — on the web.

“Mix tapes and playlists are really the new container for music,” said Lucas Gonze, creator of Webjay, a site that allows visitors to build playlists from free (and legal) MP3s compiled from sources all over the web. “They’re dirt simple, they’re social and they work.”

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IP, Drugs and Aids [7:53 am]

The NYTimes editorial comes out in support of Brazil’s efforts to exercise the WIPO treaty exemptions for key drugs: Brazil’s Right to Save Lives

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June 23, 2005

IFPI Piracy Report [8:36 pm]

Press release: One in three music discs is illegal but fight back starts to show results

The report, with lots of fun facts to know and tell (plus some graphics): The Recording Industry 2005 Piracy Report

Global pirate sales of music totalled an estimated 1.5 billion units in 2004, worth US$4.6 billion at pirate prices. The value of the world pirate market for music equates to the entire legitimate music markets of the UK, Netherlands and Spain combined.

Disc piracy, which makes up the bulk of the problem,grew only 2% in 2004 to 1.2 billion units. Despite this, global pirate disc sales are almost double the level of 2000, and 34% - one in three - of all music discs sold worldwide in 2004 was a pirate copy.

Sales of all pirate recordings (discs plus cassettes) fell slightly in 2004, mainly due to falling cassette piracy and, particularly in Asia, to piracy on the internet. There were stepped-up anti-piracy initiatives in several territories, including Mexico, Brazil, China, Hong Kong and Spain. However, disc piracy increased overall with particular growth in India, Eastern Europe and parts of Latin America.

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Marybeth Peters on Licensing Reform [8:29 am]

I am sure that there is a lot of discussion of this testimony and the § 115 issues that underly it — I’ve just been swamped, so here’s a placeholder until I get a chance to do something with this: Statement of Marybeth Peters, The Register of Copyrights before the Subcommittee on Courts, the Internet, and Intellectual Property, Committee on the Judiciary (June 21, 2005)

The increased transactional costs (e.g., arguably duplicative demands for royalties and the delays necessitated by negotiating with multiple licensors) also inhibit the music industry’s ability to combat piracy. Legal music services can combat piracy only if they can offer what the “pirates” offer. I believe that the majority of consumers would choose to use a legal service if it could offer a comparable product. Right now, illegitimate services clearly offer something that consumers want, lots of music at little or no cost. They can do this because they offer people a means to obtain any music they please without obtaining the appropriate licenses. However, under the complex licensing scheme engendered by the present Section 115, legal music services must engage in numerous negotiations which result in time delays and increased transaction costs. In cases where they cannot succeed in obtaining all of the rights they need to make a musical composition available, the legal music services simply cannot offer that selection, thereby making them less attractive to the listening public than the pirates. Reforming Section 115 to provide a streamlined process by which legal music services can clear the rights they need to make music available to consumers will enable these services to compete with, and I believe effectively combat, piracy.

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