A followup to A Little Bickering Going On — Recording Companies Show New Interest in a Global Music License - pdf

What’s going on here? Is it really possible that we could get the right to copy the music we own digitally and move it among our various music players in return for something as simple as a monthly fee? One group a year ago proposed the fee at €6.66, or $8.66, a month, which would then be distributed by the traditional collecting societies to musicians and other copyright holders.

Three key changes have taken place in the past year that make the environment a bit friendlier to such a proposal, at least from the point of view of the major recording companies, which the phonographic industry group represents. [....]

Ode to the R.I.A.A. (you might have to click twice; the NYTimes’ server sometimes thinks the URL doesn’t point to anything)

Young man,

You were surfing along,

And then, young man,

You downloaded a song,

And then, dumb man,

Copied it to your ‘Pod,

Then a phone call came to tell you:

You’ve just been sued by the R.I.A.A.!

You’ve just been sued by the R.I.A.A.!

Their attorneys say, you committed a crime,

And there’d better not be a next time!

They’ve lost their minds at the R.I.A.A.!

Justice is blind at the R.I.A.A….

“You’re depriving the bands! You are learning to steal,

You can’t do whatever you feel!”

….

How poorly it works, except as a mechanism for “control via obscurity” — which this article works to subvert. For example, did you know there are places where songs are available on iTunes at variable prices (i.e., different prices for different songs)? I didn’t. The insanely great songs Apple won’t let you hear

The iTunes Music Store has a secret hiding in plain sight: Log out of your home account in the page’s upper-right corner, switch the country setting at the bottom of the page to Japan, and you’re dropped down a rabbit hole into a wonderland of great Japanese bands that you’ve never even heard of. And they’re nowhere to be found on iTunes U.S. You can listen to 30-second song teasers on the Japanese site, but if you try purchasing “Killer Tune”—or any other tune—from iTunes Japan with your U.S. credit card, you’ll get turned away: Your gaijin money’s no good there.

Go to iTMS Japan’s Terms of Sale, and the very first three words, which berate you in all caps, are:

JAPAN SALES ONLY

So, what’s going on here?

Music labels have a good reason to lift up the drawbridge: iTunes spans 22 countries, often with somewhat uneven pricing between them, and the specter of cross-border music discounting has already been raised by services such as Russia’s much-sued allofmp3.com. But in Japan’s case, the blockade becomes downright tragic. If your knowledge of Japanese music barely extends beyond the Boredoms, you’re in for a shock at iTMS Japan: There are thousands of Japanese bands that play circles around ours—and they’re doing it in English.

Another university-targeted music delivery/student addiction/RIAA-litigation-avoiding/WMA-promoting mechanism: Big Labels Offer Free Music to College Students

In one more attempt to counter music piracy, major music labels have agreed to support a service that will offer free music downloads — with some substantial restrictions — to any college student.

The service, from Ruckus Network, will be supported by advertising on its Web site and on the software used to download and play songs. The four major record labels and several independent labels have agreed to license their music to Ruckus at lower rates than they charge other mass market music services on the theory that college students would rather steal songs than pay the $10 to $15 a month that such services normally charge.

[...] Ruckus uses Microsoft’s Windows media technology, so songs can be played only on a user’s personal computer. For $4.99 a month, users can buy the right to transfer the songs to portable devices compatible with the Microsoft format, including those made by SanDisk and Creative.

But the music will not play on Microsoft’s Zune player or, more important, on the Apple iPod.

Hollywood is seeing fans pull a power play - pdf

Sorkin may spend much of his show exploring the conflict between artists like himself and soulless media conglomerates, but in the new era of You Stardom, Sorkin and GE are in the same leaky boat. Just as the music industry saw its business crumble before its eyes as kids began sharing songs from unauthorized downloading services, media behemoths are scrambling to protect their content as it migrates to YouTube.com and other fan-driven video sites.

“Ultimately these big media companies are all wrestling with the same thing — the power is being taken out of their hands,” says Jordan Levin, the onetime WB network chief who now helps run Generate, a production and management firm active in Internet projects. “This is an industry that for its entire history has imposed its model on consumers. They’ve always said, ‘We’ll tell you when you’ll watch our TV show or see our movie.’ But that’s fundamentally changing. The whole structure of people who control content is being supplanted by the content users themselves.”

[...] The day isn’t far away when some studio executive, instead of buying a bestseller, will acquire the rights to a Web thriller that’s become a lonelygirl-style phenomenon. “The problem for us will be that people are going to create a movie character on the Web and they’ll own the content — we’ll end up just renting it,” says Sony Pictures chief Amy Pascal. “We’ll buy the movie rights, but they’ll own everything else. We haven’t bought anything from YouTube yet, but it’s going to happen. Trust me, when ‘lonelygirl’ was happening, everyone was asking, ‘Is that a movie?’ ”

Orphan works are just locked up, like everything else - or we can just say “Eldred Forever!” U.S. court upholds copyright law on “orphan works” - pdf

The U.S. Court of Appeals for the Ninth Circuit affirmed a lower court decision to dismiss Kahle v. Gonzales, which argued that legal changes made in the 1990s had vastly extended copyright protections at the expense of free speech rights.

Orphaned works are a hot-button issue for the publishing industry, which has resisted efforts by Web companies Google Inc., Yahoo Inc. (Nasdaq:YHOO - news) and the Internet Archive — working with major academic libraries — to scan orphaned and out-of-copyright works to make them available for free on the Web.

[...] “They (the plaintiffs) make essentially the same argument, in different form, that the Supreme Court rejected in Eldred. It fails here as well,” the eight-page opinion written by Ninth Circuit Judge Jerome Farris stated.

The opinion: Kahle v. Gonzales

Although the Supreme Court recently addressed similar issues in Eldred, Plaintiffs argue that their specific claims were not answered — or if they were, only in dicta. They place particular emphasis on the increased possibilities for archiving and disseminating expressive content over the Internet and the detrimental impact the change from an opt-in to an opt-out system has on those efforts. Plaintiffs articulate policy reasons behind their position; they do not, however, provide a legal argument explaining why we should ignore the clear holding of Eldred.

[...] Both of Plaintiffs’ main claims attempt to tangentially relitigate Eldred. However, they provide no compelling reason why we should depart from a recent Supreme Court decision.

With an anti-piracy push (see Microsoft to use comics in antipiracy campaign). The Microsoft Software Piracy Protection page is rife with the usual sort of stuff, but I was drawn to this assertion at the top of their types of piracy page:

While you may know that copying and/or distributing copyrighted software illegally is considered piracy, you may not be aware that even possession of software that has been illegally copied is piracy. There are actually many distinct types of software piracy, and familiarity with them can protect you from any connection, even if unintentional, to intellectual property theft.

Note the careful language — “you may not be aware that even possession of software that has been illegally copied is piracy.” Not illegal, though, but why not scare the reader?

Slashdot: Microsoft Launches Comical Effort to Fight Piracy

German, French groups want open iTunes - pdf

German and French consumer groups have joined a Nordic-led drive to force Apple Inc. to make its iTunes online store compatible with digital music players made by rival companies, a Norwegian official said Monday.

[...] Last June, consumer agencies in Norway, Denmark and Sweden claimed that Apple was violating contract and copyright laws in their countries.

[...] In a written statement after one such meeting in Oslo in September, Apple said it “is working to address the concerns we’ve heard from several agencies in Europe, and we hope to resolve these issues as quickly as possible.”

Thon said Norway gave Apple until September to change its polices, or face possible legal action and fines in the country.

Later from Reuters: Norway tells Apple change iTunes or face court - pdf — or, as we know, there’s another option - close iTunes Norway.

Also, a promoting a false dilemma: Music industry divided over digital future - pdf

Critics of the major players in the industry argue that they have been distracted by the fight against piracy and in doing so, hindered the growth of the legal business.

In response, the accused argue that they had little choice.

“Many people around the world tell me that we’ve handled our problems in an incorrect manner but no one tells me what we should have done,” John Kennedy, the head of the industry’s trade body IFPI, told Reuters in an interview.

“Free is just impossible to compete with.”

See, for example, this analysis of the recent arrest of mixtape artist D. J. Drama: Cracking Down on Mixtape CDs

Fans and music executives say the raid will most likely push the production and sale of mixtapes further underground — and encourage more efforts to skirt the edge of laws against the sale of unauthorized songs. At one major mixtape Web site, fans can choose from an array of current mix CDs on display. To get one, though, they must pay $7 for a sticker bearing the Web site’s name. Each sticker comes with a free mixtape.

See also Slashdot’s pickup of some wishful thinking: Music Companies Mull Ditching DRM; later - the NYTimes takes the same approach in its coverage - Record Labels Contemplate Unrestricted Digital Music

It’s not all porn, apparently: Comics get last laugh with tech boom - pdf

While the entertainment industry is still wondering how to make new technology work for it rather than against it, one group of performers appears to be hitting the digital jackpot.

The speed and enthusiasm with which fans now trade, e-mail, upload and consume all kinds of comedy — everything from short films to isolated sketch bits, classic TV moments and entire stand-up routines — has become a “huge driver of business,” say industry executives who gathered here for the second annual South Beach Comedy Festival, which wrapped Saturday night.

[...] In fact, many teens lately are more apt to know the names of such hot comedians as Brian Regan, Dane Cook and Frank Caliendo than what new music tops the charts. With entire episodes of some shows and stand-up acts freely traded among fans (and most copyright-holders either looking the other way or hammering out new partnerships), comedians are enjoying unprecedented promotion. And because much of it is viral, it carries the added, elusive prestige of peer endorsement, those in the industry say.

Sort of, although, in typical fashion, they seem to be hedging their bets: Downloads drive Detroit to update audio systems - pdf

Two-thirds of 2007-model cars will enable users to connect MP3 players to factory-installed stereos.

Leading the charge is Ford Motor, which at the Detroit Auto Show January 9 introduced a new factory-installed, in-car communications and entertainment system called Sync, developed in partnership with Microsoft.

While auto manufacturers have offered iPod-integration kits as a dealer-installed option for some time, Sync revolutionizes the way consumers connect MP3 players and mobile phones to the vehicle’s central nervous system. Using either a USB port — a standard feature on personal computers — or Bluetooth wireless technology, Sync lets users operate and control any MP3 player through voice commands, the car steering wheel or the dashboard stereo.

It supports not only the iPod but also files purchased from iTunes as well as subscription tracks on PlaysForSure devices. Users can even stream Internet radio feeds from mobile phones through the stereo system.

And can we cope with “immortal information?” E-mail from the grave? Microsoft seeks patent on ‘immortal computing’ - pdf

The project, dubbed “immortal computing,” would let people store digital information in physical artifacts and other forms to be preserved and revealed to future generations, and maybe even to future civilizations.

[...] “It is definitely a long-term project,” said Andy Wilson, the Microsoft researcher whose musings on the ephemeral nature of digital information inspired the research initiative.

One scenario the researchers envision: People could store messages to descendants, information about their lives or interactive holograms of themselves for access by visitors at their tombstones or urns.

And here’s where the notion of immortality really kicks in: The researchers say the artifacts could be symbolic representations of people, reflecting elements of their personalities. The systems might be set up to take action — e-mailing birthday greetings to people identified as grandchildren, for example.

The previously undisclosed project came to light through a newly surfaced patent application in which the researchers explain some of the concepts they’re exploring. The project seeks to address the fact that large amounts of valuable information are stored on media with limited life spans, in formats that could be rendered obsolete.

Patent application #20070011109: Immortal information storage and access platform; Slashdot’s Microsoft’s “Immortal Computing” Project

And the circumstances under which one might lose them: Unabomber Wages Legal Battle to Halt the Sale of Papers

Mr. Kaczynski, 64, is in a legal battle with the federal government and a group of his victims over the future of the handwritten papers, which include journals, diaries and drafts of his anti-technology manifesto.

The journals contain blunt assessments of 16 mail bombings from 1978 to 1995 that killed 3 people and injured 28, as well as his musings on the suffering of victims and their families. The government wants to auction sanitized versions of the materials on the Internet to raise money for four of Mr. Kaczynski’s victims.

But, citing the First Amendment, Mr. Kaczynski has argued in court filings that the government is not entitled to his writings and has no right to alter them. The writings were among the items taken from his remote Montana cabin after his arrest in April 1996. In a motion drafted in pen, he said he planned to argue that the government had too much discretion under a federal restitution law to confiscate writings.

Slate’s Explainer column adds a few more wrinkles: Who Owns the Unabomber’s Writings?

But for what? Is this a “chilling effect” strategy? Or something more? Gambling Subpoenas on Wall St.

The Justice Department has issued subpoenas to at least four Wall Street investment banks as part of a widening investigation into the multibillion-dollar online gambling industry, according to people briefed on the investigation.

The subpoenas were issued to firms that had underwritten the initial public offerings of some of the most popular online gambling sites that operate abroad. [...]

[...] Unable to go directly after the casinos, which are based overseas, they have sought to prosecute the operations’ American partners, marketing arms and now, possibly, investors.

The prosecutors may be emboldened by a law signed by President Bush last October that explicitly defined the illegality of running an Internet casino. Even before that law, the Unlawful Internet Gambling Enforcement Act, was adopted, the government said that Internet gambling was illegal under a 1961 provision.

[...] “It appears that the Department of Justice is waging a war of intimidation against Internet gambling,” said I. Nelson Rose, a professor of law at Whittier Law School in Costa Mesa, Calif., who is an expert on Internet gambling law.

Another lawyer, Lawrence G. Walters of Altamonte Springs, Fla., said the development was disconcerting because the prevailing wisdom had been that investment in a company that is legal and licensed in its jurisdiction was not grounds for prosecution.

“It would be the first time that that kind of liability has been imposed,” Mr. Walters said.

But he cautioned that the subpoenas could be part of a government fact-finding effort and might not signal a plan to prosecute banks.

The move to HD by an industry that has always been a technology leader, and an interesting strategic choice by Sony: In Raw World of Sex Movies, High Definition Could Be a View Too Real

Pornography has long helped drive the adoption of new technology, from the printing press to the videocassette. Now pornographic movie studios are staying ahead of the curve by releasing high-definition DVDs.

They have discovered that the technology is sometimes not so sexy. The high-definition format is accentuating imperfections in the actors — from a little extra cellulite on a leg to wrinkles around the eyes.

[...] The pornographers’ progress with HD may also be somewhat slowed by Sony, one of the main backers of the Blu-ray high-definition disc format. Sony said last week that, in keeping with a longstanding policy, it would not mass-produce pornographic videos on behalf of the movie makers.

The decision has forced pornographers to use the competing HD-DVD format or, in some cases, to find companies other than Sony that can manufacture copies of Blu-ray movies.

Later: EETimes says that’s not Sony’s position at all; anyone who’s a Blu-Ray licensee can produce porn DVDs, but Sony won’t touch the business itself - Sony denies preventing porn on Blu-Ray; pdf

I found this through a look at this weekend’s SomethingAwful SecondLife Safari column, but this Age article is a good summary: Anshes kinky past revealed

In November, Anshe announced that she had accumulated computer-generated assets worth the equivalent of more than $US1 million (in real money), making her - according to her press release - the world’s first virtual world millionaire.

The claims of the avatar’s past have come to light after a series of attempts by her company, Anshe Chung Studios, to cajole blogs and websites into removing images and video of a recent attack on her by hackers backfired.

[...] In recent weeks, Guntram Graef, the chief executive of Anshe Chung Studios, has been trying to smother images and video of an attack by hackers who sabotaged a recent appearance by Anshe inside Second Life.

In December, Anshe was holding a Q&S session in an auditorium inside Second Life owned by the technology publisher CNET when the hackers - known as griefers because they cause grief - unleased a phalanx of flying phalluses.

[...] Anshe Chung Studios also lobbied YouTube, the video sharing site owned by Google, to remove two videos that contained footage of the attack.

The Graefs claimed to own copyright over the images of Anshe Chung and that the videos (and images taken from the videos) were unlawful under the US Digital Millennium Copyright Act.

After receiving an email from a lawyer from the US-based Electronic Frontier Foundation that the videos fell under the “fair use” provisions of the act, the complaint was withdrawn and at least one of the videos was restored.

• Tech firms, rights groups to form Web conduct code - pdf

  Technology companies Microsoft, Google, Yahoo and Vodafone are in talks with human rights and press freedom groups to draw up an Internet code of conduct to protect free speech and privacy of Web users.

  The parties said in a statement on Friday they aim to produce a code by the end of this year that would counter such trends as the increased jailing of Internet journalists, monitoring of legitimate online activity, and censorship.

• Artists ponder future of digital Mona Lisas - pdf

  Today, a growing number of artists use computers to create, and with technology changing fast, their digital visions could face obsolescence in just a few years.

  “I often joke with my students that digital media will last forever — or for five years, whichever comes first,” said Richard Rinehart, digital media director at the Berkeley university’s Art Museum & Pacific Film Archive.

But, after all, what would you expect? DJ Drama Arrested

On Tuesday night he was arrested with Don Cannon, a protégé. The police, working with the Recording Industry Association of America, raided his office, at 147 Walker Street in Atlanta. The association makes no distinction between counterfeit CDs and unlicensed compilations like those that DJ Drama is known for. So the police confiscated 81,000 discs, four vehicles, recording gear, and “other assets that are proceeds of a pattern of illegal activity,” said Chief Jeffrey C. Baker, from the Morrow, Ga., police department, which participated in the raid.

DJ Drama (whose real name is Tyree Simmons) and Mr. Cannon were each charged with a felony violation of Georgia’s Racketeering Influenced Corrupt Organization law(known as RICO) and held on $100,000 bond.

[...] There have been mixtape busts before: in 2005, five employees of Mondo Kim’s, in the East Village in New York, were jailed after the store was found to be selling unlicensed mixtapes. But the arrest of a figure as prominent as DJ Drama is unprecedented. Record companies usually portray the fight against piracy as a fight for artists’ rights, but this case complicates that argument: most of DJ Drama’s mixtapes begin with enthusiastic endorsements from the artists themselves.

It also seems clear that mixtapes can actually bolster an artist’s sales. The most recent Lil Wayne solo album, “Tha Carter II” (Cash Money/Universal), sold more than a million copies, though none of its singles climbed any higher than No. 32 on Billboard’s Hot 100 chart. That’s an impressive feat, and it’s hard to imagine how he would have done it without help from a friendly pirate.

Later: Cracking Down on Mixtape CDs

With lots of links: The case for killing the FCC and selling off spectrum

Aside from bottling up debate, what the FCC really excelled at was postponing the creation of new technologies. It stalled the emergence of such feasible technologies as FM radio, pay TV, cell phones, satellite radio, and satellite TV, just to name a few. As Declan McCullagh wrote in 2004, if the FCC had been in charge of the Web, we’d still be waiting for its standards engineers to approve of the first Web browser.

Although today’s FCC is nowhere near as controlling as earlier FCCs, it still treats the radio spectrum like a scarce resource that its bureaucrats must manage for the “public good,” even though the government’s scarcity argument has been a joke for half a century or longer. The almost uniformly accepted modern view is that information-carrying capacity of the airwaves isn’t static, that capacity is a function of technology and design architecture that inventors and entrepreneurs throw at spectrum.

A provocative piece: Will EULAs Follow UCITA into Oblivion?

As we saw in Monday’s story, there’s a growing sense of frustration with the ridiculously one-sided terms the lawyers for software publishers throw into their license agreements. More and more experts are questioning the practice, such as Jennifer Granick’s recent prediction that contract law will the hot cyberlaw topic of 2007. Another must-read piece for anyone interested in the topic is Mark Rasch’s thorough analysis of the Windows Vista EULA and Microsoft’s product activation.

And you really should follow the Granick and Rasch links, too