March 28, 2006

TorrentSpy Suit News [2:49 pm]

Sue Google, not us, Torrentspy tells Hollywood

In its filing Monday seeking to dismiss the case, Torrentspy argued that the MPAA might as well have sued Google, since Google does what Torrentspy does, only better. Torrentspy is a search engine that helps visitors find torrent files, which are often music or movie files stored in an easily shared file format.

“There is nothing alleged to distinguish defendants’ website from that maintained by Google,” Torrentspy said in its filing. “Everything alleged about defendants’ website is true about Google, and even more so, because Google outperforms the allegations in the complaint,” the filing reads.

Torrentspy argues that its site doesn’t contain any copyright works or links to copyright works, does not promote copyright infringement and can’t be held liable for the actions of visitors once they leave its Web site. The MPAA suit charges the company with secondary copyright infringement., Torrentspy said.

The MPAA’s charges against Torrentspy go beyond the U.S. Supreme Court’s opinion against Grokster, Torrentspy said. In that decision, the Supreme Court ruled that someone who offers a tool and promotes the use of that tool to infringe copyrights is liable for the user’s infringement.

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A Draft Telecomm Bill [9:41 am]

US House lawmakers offer bill to aid telcos’ video [pdf]

U.S. House Republicans on Monday offered legislation aimed at easing the path for telephone carriers like AT&T Inc. (NYSE:T - news) and Verizon Communications (NYSE:VZ - news) to enter the subscription television business.

[...] The House Energy and Commerce Committee plans to hold a hearing on the proposed legislation on Thursday. The panel’s Republican leaders had tried to win support from the top Democrats on the committee, but failed.

Later: ZDNN has this unhappy note on the bill: Net neutrality fans lose on Capitol Hill

A November draft of Barton’s bill (click here for PDF) explicitly said broadband providers “may not block, or unreasonably impair or interfere with” Internet access. The final version (PDF), on the other hand, simply gives the Federal Communications Commission the authority to set rules and publish violations.

Later: Reactions — New broadband bill draws fire

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An Inflammatory Look At Gaming And Governments [9:02 am]

Global Gaming Crackdown

American gamers aren’t likely to face dictatorial decrees to limit their play time, but within the next few years the courts will begin to examine how laws relating to taxes, copyright, and speech will apply in virtual worlds. In the near future, the IRS could require game developers to keep records of all the transactions that take place in virtual economies and tax players on their gains before any game currency is converted into dollars. “It’s utterly implausible that it won’t happen,” says Dan Hunter, who has coauthored law review articles like “The Laws of the Virtual Worlds.” A trickier issue is whether an avatar can be defamed: Will we see potion merchants suing for in-game slander, much like eBay sellers have litigated over negative feedback?

In the United States, virtual worlds could eventually have the same legal status as another lucrative recreation industry: pro sports. The NHL isn’t exempt from federal legislation like labor, antitrust, and drug laws. But inside the “magic circle,” on the field of play, sports leagues are given great latitude to make judgments, even though jobs, endorsement contracts, and the value of team franchises hang in the balance.

For example, the government lets referees police behavior in a hockey rink that would normally be the purview of local prosecutors. (Try high-sticking your mail carrier to experience the difference.) But the government still reserves the right to get involved. It should be the same in games. If your thief character picks the pocket of a nearby avatar, the local district attorney won’t prosecute. But if you hack into the player’s account to loot his virtual goods, you end up in the slammer.

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Denmark Considering Joining France [8:46 am]

Denmark next in line to challenge Apple, DRM

Apple’s problems in Europe look to be getting worse, not better. Following on the heels of France’s legislative push for DRM interoperability comes word that Denmark is thinking along the same lines. Reportedly, Maersk and the country’s largest telecommunications company, TDC, are speaking out in favor of such interoperability. Maersk and TDC are not only two of largest companies in Denmark, but they are amongst the largest and most powerful in Europe. Both also operate online music ventures.

Earlier posts: France Moves “Forward” (updated), The French Keep Pushing, Followup: France’s Digital Interop Bill, Those French!

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MythTV Gets Some Ink [8:26 am]

Yet no discussion of the degree to which this innovation, celebrated in this article, is vulnerable to a host of ongoing regulatory initiatives, starting with the mentality behind the broadcast flag: MythTV Invades Realm of Cable and TiVo [pdf]

In 2002, amidst a bulky, advertising-laden digital television experience, programmer Isaac Richards took matters into his own hands — he began to build his own digital video recorder system from scratch.

Now known as the MythTV project (, Richards’s effort to create DVR systems from commonly available computer components and the Linux open-source operating system, is gaining traction on the Internet.

[...] The MythTV project is centered on the idea of creating a low-cost home entertainment control unit that can be almost anything the user would like it to be. Software modules, once installed, can provide an array of bells and whistles to use.

For example, a video module within the MythTV software may control playback while music and DVD management programs store media libraries to use later. An Internet software module might allow the unit to use a Web browser, make VoIP-based telephone calls, videoconference and access podcasts. Additional features include full access to MythWeather, a free weather-tracking plug-in that uses MSNBC’s weather links for its information; and MythNews, a live news link hooked into an auto-updating Internet feed and CD and DVD importing features.

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“I Paid For This Microphone …” [8:21 am]

So I get to decide what gets said — apparently: Phone, Cable Trade Fire Over Ads [pdf]

AT&T Inc. yesterday accused cable television companies of suppressing public debate by refusing to air ads that urge lawmakers to make it easier for phone companies to get into the TV business.

Time Warner Cable shot back that it was under no obligation to carry its competitors’ ads while Comcast Corp. said it rejected the spots because they were riddled with false and misleading claims.

The charges are the latest in a long series of broadsides between phone companies, which want to offer TV without having to get thousands of franchise agreements at localities all over the country, and cable companies, which believe their rivals should have to secure local agreements just as they did.

Both sides have launched media campaigns to sway lawmakers debating whether to grant phone companies state or national franchises. The Federal Communications Commission is also studying whether local authorities are “unreasonably” denying franchises.

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What’s Your Privacy Worth? [8:01 am]

Increasingly, it depends on what you mean by “privacy.” Unfortunately, the definition seems to be more than a little mutable: E-Commerce Report: Pssst! You Can Get It Cheaper Over There

IT’S the kind of thing that can make bargain hunters rejoice: merchants that follow consumers to competing stores and show them a better deal just as they are about to check out. In the mall, that would be considered stalking. Online, it’s an idea that has been around for several years but has failed to catch on.

Now Barry Diller’s company, IAC/InterActiveCorp, among several others, is giving this kind of shopping software a revival. The company recently introduced Pronto, a software application that a user downloads at Once a user clicks on one of the 50,000 merchants in its database, Pronto silently monitors all of a user’s activity on a product page, then shows deals from other merchants on the same items, or similar ones, until it finds a better deal. Then it sends a message prompting the user to click away.

[...] Pronto’s software, which works on Windows machines (but not Macs), connects users to Pronto’s database of 50,000 merchants, which it has built by scanning and cataloging retailer’s Web pages. The software is activated when a user clicks on a specific product page on a retailer’s site, then it scrolls a window over the bottom right-hand side of the computer screen with alternative retailers and prices for the same product.

Someone shopping for a Canon PowerShot SD 450 on, for instance, could be shown a window saying they could save up to 29 percent at other retailers, like Abe’s of Maine or After clicking on that window, a larger page covers most of the screen with details on the other merchants’ offerings and links to those products. For items like teak benches or gas grills, which come in so many variations that apples-to-apples comparisons are difficult, the software will return suggestions of similar products listed by those names. Users may also set up the system so that it alerts them when prices for a particular item fall below a certain threshold.

When someone buys from a merchant that Pronto has suggested, the merchant pays Pronto a commission, typically from 5 to 15 percent of the sale. That’s a different approach from other companies, like WhenU and SmartShopper, which are paid by sites each time someone clicks on their links.

[...] Still, privacy-sensitive shoppers may feel uneasy about installing such software on their computers, since it essentially watches someone’s surfing habits and stores information about them.

WhenU’s software stores that information on the user’s computer, not the company’s servers. Others, like, say they track users anonymously, meaning they do not collect personal information. Pronto collects a user’s e-mail address so it can send sale alerts, among other things. Pronto also gives users the option to clear the system’s product history file, in case they are shopping for items they do not want Pronto to keep in its records.

Will merchants will feel comfortable having a service whisk away customers just as they are ready to buy? Executives of the shopping software companies are unapologetic.

“If you’re a merchant and you’re not competitive, you don’t want an educated user, that’s for sure,” said Ziv Eliraz, vice president of strategic alliances for SmartShopper, which is based in New York. Mr. Eliraz added, however, that he had heard no complaints from merchants about his service.

Related: Twilight of Tax Privacy

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A Parody Fight [7:57 am]

Both Sides in Parody Dispute Agree on a Term: Unhappy

“I’m a fan of parody myself, I watch ‘Saturday Night Live,’ I read The Onion, it’s funny. But when it gets too close to something that could be misconstrued as ours by someone looking for help. I take issue with that,” he said. Mathew D. Staver, the president and general counsel of Liberty Counsel, maintains that its only concern was to get the logo removed. On Friday, Exodus dropped its case against Mr. Watt.

But Tamara Lange, a senior staff lawyer with the A.C.L.U. Lesbian, Gay, Bisexual, Transgender Project, said that the point of the initial letter from Liberty Counsel was clearly not just about the logo. “It’s no surprise that they are backtracking now that their scare tactics didn’t work. The original letter from them was an attempt to make Justin take down his criticism.”

Mr. Watt said he was mainly happy that his message made an impression. “It’s bothersome that you could market in some way that you really target a minority group that already is underprivileged. It’s marketing in such a way to make someone feel bad about who they are.”

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The Continuing Apple v Apple Suits [7:55 am]

the joys of definitions: For a 3rd Time, Two Apples Meet in Court

Apple Computer will meet the Beatles’ Apple Corps in court this week in London, where a judge will determine whether Apple Computer’s iTunes online music service violates a 1991 agreement between the two companies that, the Beatles’ Apple claims, blocked the computer maker from selling music.

Apple Corps, which represents the Beatles’ business interests and markets their post-1968 recordings on disc, wants the computer firm to stop using the Apple trademark to sell recordings online, along with unspecified damages. Apple, the maker of Macs and iPods, said the 1991 agreement permitted using the Apple name to sell online data transfers, which are what downloaded songs amount to.

The judge hearing the case, Justice Edward Mann, is an iPod user, but neither side has asked him to recuse himself.

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Another Patent Case (updated) [7:53 am]

Too bad it’s structured so narrowly — the real question is what we were thinking when business method and software patents were created: Justices Will Hear Patent Case Against eBay

The United States Supreme Court will hear arguments on Wednesday in a protracted, closely watched patent case that pits a small company called MercExchange against eBay, the online auction and marketplace.

While the grounds in the case appear narrow — the court will reconsider the rules under which courts grant injunctions against a company found to be infringing another’s patent — it has attracted enormous attention because of the public rancor between the two companies, the supporters enlisted by both sides and the growing issue of how large technology companies deal with the constant threat of patent challenges.

The patent in question surrounds the “Buy It Now” feature that eBay uses to allow processing of transactions for the Web site’s fixed-price purchasing option.

The Supreme Court will decide whether a federal appeals court was correct in reversing a district court’s decision to deny an injunction against eBay’s use of the feature. In doing so, it will reconsider a precedent from 1908, which suggested that injunctions were always an appropriate remedy for patent infringement.

[...] The case has attracted an unusual amount of public attention in part because of recent attempts by large corporations to change patent law to lessen the threat posed by so-called nonpracticing patent holders.

“Large companies like Microsoft and Intel get hit by weekly patent infringement suits, the majority from smaller entities who may not be practicing the inventions,” said Dennis Crouch, a patent attorney in Chicago who has been following the MercExchange case closely. “The big guns behind eBay are trying to weaken the power of a patent and lessen the ability of a patent holder to obtain an injunction.”

In his decision to withhold the injunction, the district court judge noted that MercExchange “exists solely to license its patents or sue to enforce its patents, and not to develop or commercialize them.”

NYTimes OpEd: Editorial: EBay at the Bar

More broadly, granting MercExchange an injunction is not in the public interest. The patent office has been too willing to grant patents, especially technology patents, when applicants attempt to stake a legal claim on some basic process or relationship rather than on a genuinely new innovation. If the courts now give patent holders the right to nearly automatic injunctions against companies that infringe patents, patent holders will have the power to extract windfall payments from companies that are caught in their nets.

That would ultimately be bad not just for the companies, but for all of us. The Internet, and scientific progress in general, would suffer if abusive patent litigation was allowed to sap the resources of entrepreneurs and discourage innovation. If a patent has been infringed, courts can make the infringer pay up without bringing parts of the Internet and the technology world to a halt.

From Wired News: eBay Heads To High Court; Slashdot: U.S. Supreme Court Hears eBay Case Wednesday

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FEC Speaks [7:49 am]

An anticipated Federal Election Commission decision: Agency Exempts Most of Internet From Campaign Spending Laws

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Video-On-Demand vs. Recording? [7:43 am]

Should be interesting to see how the pricing negotiations go on this — particularly since ad placments may well be inescapable: Cable Negotiates to Offer Instant Reruns (for a Fee)

The nation’s second-largest cable operator has initiated talks with the four biggest broadcast networks — CBS, ABC, Fox and NBC — about testing a service that would give viewers access to top programs, as rated by Nielsen Media Research, soon after their broadcast.

A video-on-demand service based on the shifting whims of TV viewers would represent the first effort to package and sell television programs in a way that mimics the “wisdom of crowds” approach, which has become common on the Internet and underpins the way search engines like Google rank results.

Since their establishment a half-century ago, Nielsen ratings have mainly been used as a measure of the popularity of a program, and therefore its attractiveness to advertisers. The concept under discussion is aimed at making what was on TV last night as compelling to viewers as what is on tonight.

[...] One approach being contemplated, one participant said, would offer viewers on-demand access to programs ranked in the top 20 (over a period of time to be determined) for a fee of $10 a month, on top of the regular bill. A price for an individual program may also be contemplated, another person close to the talks said. “There have been high-level discussions, but no definitive decisions or deals,” Mr. Harrad said.

Such a service would be the latest in a string of new video-on-demand services for consumers who do not use the increasingly popular digital video recorders or who did not record a particular program and became interested in watching it as a result of its ratings success.

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A “Many Eyeballs, Shallow Bugs” Experiment On Iraqi WMDs [7:31 am]

A test of Linus’ Law? Or an excuse for a free-for all? Iraqi Documents Are Put on Web, and Search Is On

All the documents, which are available on, have received at least a quick review by Arabic linguists and do not alter the government’s official stance, officials say. On some tapes already released, in fact, Mr. Hussein expressed frustration that he did not have unconventional weapons.

Intelligence officials had serious concerns about turning loose an army of amateurs on a warehouse full of raw documents that include hearsay, disinformation and forgery. Mr. Negroponte’s office attached a disclaimer to the documents, only a few of which have been translated into English, saying the government did not vouch for their authenticity.

Another administration official described the political logic: “If anyone in the intelligence community thought there was valid information in those documents that supported either of those questions — W.M.D. or Al Qaeda — they would have shouted them from the rooftops.”

But Representative Peter Hoekstra, the Michigan Republican who is chairman of the House Intelligence Committee and who led the campaign to get the documents released, does not believe they have received adequate scrutiny. Mr. Hoekstra said he wanted to “unleash the power of the Net” to do translation and analysis that might take the government decades.

“People today ought to be able to have a closer look inside Saddam’s regime,” he said.

Mr. Hoekstra said intelligence officials had resisted posting the documents, which he overcame by appealing to President Bush and by proposing legislation to force the release.

The timing gives the documents a potent political charge. Public doubts about the war have driven Mr. Bush’s approval rating to new lows. A renewed debate over Saddam Hussein’s weapons and terrorist ties could raise the president’s standing.

Slashdot: Open-Government Technique Used on Iraqi Documents

Later: NYTimes’ Editorial: Surfing for W.M.D. on the Web

Much later: Salon is suspicious of some of the content — Bush’s bogus document dump [pdf]

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A Friend (and TPP Alum) Makes The Front Page of the NYTimes [7:22 am]

Once a Maverick, Google Joins the Lobbying Herd

In doing so, Google provides another example of how Internet companies, no matter how unconventional their roots or nonconformist their corporate cultures, increasingly find themselves wrestling with the same forces in Washington that more traditional industries have long faced. Google’s executives consider the moves necessary as they achieve a prominence that allows them to elbow their own interests onto the political stage.

“We’ve staked out an agenda that really is about promoting the open Internet as a revolutionary platform for communication,” said Alan Davidson, brought on board less than a year ago as the company’s policy counsel to set up offices in the Penn Quarter area of Washington. “It’s been the growth of Google as a company and as a presence in the industry that has prompted our engagement in Washington.”

[...] “They are brilliant engineers,” said Lauren Maddox, a principal in the bipartisan lobbying firm Podesta Mattoon that was hired by Google last year. “They are not politicians.”

[...]The big Internet companies, including Google, are bracing for an uphill struggle with lawmakers and the titans of the telephone and cable industries over whether fees should be charged for heavy data traffic, like video streaming over broadband width.

“Our belief is that this is going to be an issue of great concern for consumers,” Mr. Davidson said. “The telephone companies have been lobbying these committees for generations. Our industry is very young.”

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Surveillance Society Comes To Alaska [7:04 am]

80 Eyes on 2,400 People - Los Angeles Times [pdf]

Now the residents of this far-flung village have become, in one sense, among the most watched people in the land, with — as former Mayor Freeman Roberts puts it — “one camera for every 30 residents.”

Some don’t mind, but many others are furious and have banded together to force the city to take the cameras down.

“You better smile. You’re on camera,” says Roberts, 64, a barge captain. Roberts himself isn’t smiling as he points out a single camera on the side of a building. The camera is aimed toward an alley.

“It’s amazing, isn’t it?” he says. He drives around town in his pickup, spying on the cameras that he believes are spying on him. “Everywhere you look, there’s one looking at you.”

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The Movie Biz and Digital Tech [6:55 am]

An LATimes piece on embracing the future: Film projection [pdf]

In its obsession with quarterly earnings, the industry has failed to notice that movie lovers — led by young males, once the most loyal members of the tribe — are being transformed into media consumers, siphoned away from movie theaters by a growing assortment of more involving electronic toys. If you need more evidence, read the fascinating recent survey conducted by OTX, a leading movie research firm that found that under-25 males, the earliest adopters of new technology, saw 25% fewer movies in the summer of 2005 than in the summer of 2003. Even worse, young males now rate theatrical movies No.7 among weekend activities, behind everything from surfing the Web and playing computer games to (ouch!) going out to dinner.

“There’s an attitudinal shift in our culture,” says Kevin Goetz, who heads OTX’s West Coast media and entertainment division. “In the last 10 years there’s been a 500% increase in what the average digital consumer spends on entertainment, but that increase is going to iPods, cellphones and computer games, not more theatrical moviegoing. People have so many other things to do with their time that they view the prospect of going to the movies very differently than 10 years ago.”

[...] But studios can’t simply announce that they’re in the digital business. They have to adopt the DIY sensibility of young consumers who want to put an individual imprint on content. For young Web devotees, the most absorbing art right now is not movies but “mash-ups,” which began as idiosyncratic remixes of two different songs but have now made the leap to video, where “The Shining” trailer has been reinvented as a feel-good movie and “Sleepless in Seattle” recast as a stalker film.

Savvy studio marketers have jumped into the fray. New Line Cinema has encouraged fans to mash up its trailer for the film “Take the Lead,” with the results posted on YouTube and other sites. “Snakes on a Plane,” another upcoming New Line film, has generated plenty of buzz on fan-based sites as a result of a movie poster Photoshop contest at and a promotion that gives would-be recording artists a shot at movie soundtrack spot.

Young people still love movies. But with the exception of a steadily shrinking number of Big Event films, they don’t have an overriding desire to see them in a theater. And they aren’t willing to wait until the studios have cashed in their DVD profits. If it takes months for a movie to come to their preferred medium, they’ll find other content to absorb. Like it or not, this is a generation trained to access media when and how it wants it, not when it best fits the studio’s profit picture.

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