2003 March 20

(entry last updated: 2003-03-20 15:42:57)

  • Announcement: I’m taking this machine down in the next hour to install a new hard disk. I *expect* it will be a short outage, but we all know how Murphy gets involved in these things….

    Update: OK – the disk is in and I just finished formatting the smaller partition. The next one will take even longer, so this site will be a little sluggish until it finishes.

  • Like several local schools, MIT has been working up to the big march this afternoon against the war. When I went to the rally at the Student Center today, I saw two signs that I am confident would only appear on this campus:

    </p> <p>^Z</p> <p>^Z</p> <p>^Z</p> <p>^Z</p> <p>Ctrl-Alt-Del</p> <p> MIT Nerds against the War</p> <p>

    and the Windows equivalent:

    </p> <p>Alt-F4</p> <p>Ctrl-Alt-Del

    (although my Windows friends tell me that the Ctrl-Z could be interpreted as the Windows ‘Undo’ command, too)

  • Billboard discusses the push toward DVD-Audio at the National Association of Record Merchandisers (NARM) conference yesterday.

    In a discussion that accompanied the presentation, DVD-A advocates, including David Dorn, senior VP of media for Warner Strategic Marketing, noted that a shift to a new format is needed in part because consumers no longer see value in the CD. Retail and label executives acknowledged that DVD-A offers a better value proposition, with its ability to carry pictures, videos, lyrics, and downloadable portable music files all on one disc. The challenge, they said, is in creating consumer awareness for the product and building off the installed base of DVD hardware.

    Recall the March 13 posting citing this NYTimes article on the subject.

  • CNet News says that the Copyright Office will be holding hearings over the next two months to solicit comments on the DMCA anti-circumvention provisions.

  • Lisa Bowman’s interview of Robert Moore, the CEO of 321 Studios, makers of DVD copying software, is finally up. (The headline was on the front page long before the links worked.)

    He identifies the rhetorical problem, but I didn’t see a solution

    Companies haven’t had very much luck taking on Hollywood or the record labels. Why would yours be different?

    I don’t really see that any company in the past has put forth the effort to become the voice of reason and to try to reach a middle ground everyone can agree on. In the past, I’ve seen two different camps. One is the extremist intellectual property camp, who want a pay-for-play business model. They would like legislation passed in Congress to enforce their business model. On the other hand, you’ve got the free-use camp. Their motto is, “If we’ve got it, you can have it.” These are two extremes, diametrically opposed to one another. I vehemently disagree with the Napsterites of the world. I believe in everybody’s right to create, author, invent and exploit their works for profit–or even not for profit, for public recognition.

  • As Derek gets ready for Spring Break, he posts his followup to the Brown University P2P issues raised earlier this week.

  • Mary Hodder sent me an e-mail notifying me of a faintly different kind of posting over at bIPlog – here’s the intro and here’s the post: Revolution is not an AOL Keyword. Give it a read – and some thought.

  • Wired has more on a topic Ed Felten touched on a couple of days ago: the perceived need for DRM in cellphones.

    The latest must-have feature for cell phones is the ability to wirelessly send text messages accompanied by pictures, audio or video files.

    But people who want to send a wireless greeting with a cute cartoon character using the multimedia messaging, or MMS, function on their phones may be in for a surprise. If they’re sending the e-greeting using one of Nokia’s newest handsets, they’ll probably receive this message: “Cannot forward copyrightable content.”

    In fact, all of Nokia’s new MMS cell phones carry such warnings, and even include software that prohibits people from sending certain material to another handset or to a PC — even the cell-phone user’s own desktop computer

  • The Wired story that I mentioned yesterday to Derek has gotten some Slashdot coverage: Texas Rep Wants To Jail File Traders.

  • As I said the day before yesterday (and yesterday), I’m with David Weinberger on supporting the Dixie Chicks.

  • Donna has ferreted out the weblog of one of the people who got to ask a question at the Copyright & Fair Use Symposium last weekend – "Matt" of Matt Rolls a Hooverstart here and scroll down to get his thoughts.

2003 March 19

(entry last updated: 2003-03-19 18:25:12)

  • A brief notice, FWIW: time to add some hard disk capacity to this machine; and since it’s not hot swappable, that means there’s going to be some downtime the next day or so while I shoehorn that activity into the rest of my day.

  • Via Boing-Boing – According to Larry Lessig, looks like the MIT Press has taken on a fight that Siva Viadhynathan said (at the JOLT Fair Use Conference) that many publishers won’t do – assert fair use rights in the face of copyright owner intransigence. Hope to learn more about this, since they’re just around the corner…

  • While you’re at Larry’s site, you probably should read his entry about software patents, as well as the FT pieces that got him going. The project that he proposes sounds like a great place to start on bridging this chasms.

  • Ed Felten’s got better sources than I; first his mother and now this – he’s pointing to the latest salvo in the Verizon v. RIAA subscriber subpoena battle.

  • Derek Slater points to a Tech Law Advisor posting, citing a decision by Judge Posner that appears to claim that copyright restricts fair use copying to a single copy.

    IANAL, but after reading the entire decision, I actually found the concurring opinion from Ripple more entertaining. (I’m not sure whether Posner’s statements were meant to be definitive or illustrative, but that’s why IANAL <G> Since Derek is more closely connected with the folks up at Berkman, I’m sure he’s got the more accurate representation).

    Ripple’s concurrence is particularly interesting because it centers on the interesting problem of just how difficult it can be to sell a copyright (and why Creative Commons is such an important activity). Not only does he allude to specific statutory requirements which exist to protect creators (e.g. see slip op. p. 17, 19 or 21), but he also points out that, since copyright is about exclusive rights, it cannot be owned by more than one party at a time. This argument is used to draw several conclusions about who owned what at the close of the bankruptcy at the center of this case in the face of certain ambiguities, and it is quite instructive to read the words of the opinion:

    The bankruptcy s order makes clear that Amerifreight was not granted the copyright. Nor was it granted an exclusive license. The order could not grant either a copy-right or an exclusive license to Amerifreight because it granted to both Southern Pacific and Amerifreight ex-actly the same rights. There is only one copyright and only one owner of each piece of an exclusive right. Goldstein, Copyright § 4.4.1. Therefore, the bankruptcy order could not have given both Southern Pacific and Amerifreight the same exclusive rights. Thus, whatever was transferred had to be a nonexclusive license.

  • Aimee Deep posts (from her increasingly racy weblog – ah, to be 17 again) on the latest stage in the Aimster/Madster copyright/bankruptcy suit.

  • Like I said, an occasional warblog item – I’m just back from lunch, where I had a chance to read Thomas Friedman’s opinion piece in the NYTimes today. I think Friedman’s got it exactly right – while I agree with Jack Balkin’s thoughts, they’re beside the point now – at least as a guide to action (although I hope they return to everyone’s mind by the next election). These are the cards that we’ve been dealt. So we have to play them as intelligently as we can, building upon the moral and political ideals upon which this republic is founded.

    But, once we’ve finished this hand, let’s all remember that we really ought to consider a new dealer next time around.

  • Speaking of needlepoint, I see that Ed Felten has contacted his inside source on the subject. (Siva Viadhynathan’s added his thoughts from this part of JOLT)

    Update: Looks like Ed’s been Slashdotted over his posting on DRM threat analysis – is DRM supposed to stop casual copying or any copying?

  • Something that came to mind yesterday as I was working through the needlepoint discussion (I’m still working on it): it’s interesting to note just how many of the firms cited in the materials currently have a web presence – and seem to be making sales through their sites. Linn Skinner describes the industry as still facing huge problems, yet it would be interesting to test whether there are any offsetting benefits to these firms accompanying their embrace of WWW distribution – and if so, how do these benefits compare with the losses due to piracy? An interesting potential research angle……..

  • Derek asks about the effectiveness of education programs to combat copyright infringement – here’s one that’s been floated recently (from Wired):

    College students, listen up: Don’t mess with Texas.

    Texas Rep. John Carter, that is.

    During a recent hearing of the Subcommittee on Courts, the Internet and Intellectual Property, the Republican congressman said jailing college students who download copyrighted music would help stop piracy.

    “What these kids don’t realize is that every time they pull up music and movies and make a copy, they are committing a felony under the United States code,” Carter said in an interview. “If you were to prosecute someone and give them three years, I think this would act as a deterrent.”

  • A TCS column raises some excellent issues: Hollywood Stasists vs. Valley Dynamists – a look at the reactions of entertainment industries to new technologies.

    Postrel once told me that she describes the dynamists as a group of individuals who want to allow for more individual exploration and experimentation; a group “looking for improvements in their own lives, in their businesses, in technologies they work with. And doing this in a very decentralized way.”

    On the other side of the equation, Postrel says, “There are a lot of people who are very uncomfortable with that choice or with that process”; uncomfortable with individuals having too much control. “And this group wants stability or control at the level of the whole society. They want some form of stasis. Some form of holding the future still.” And says Postrel, they typically want the government to do this on a national level.

    The dynamic computer industry of Northern California’s Silicon Valley is busy creating technology that lets people make their own music, burn their own CDs and DVDs, create their own movies, and go as far as their brains, and talent will let them. But those Hollywood stasists are having none of it.

  • On a related topic, my pre-ordered copy of The Audible Past: Cultural Origins of Sound Reproduction arrived yesterday. I’ve only had a chance to read the introduction. From the introductory chapter:

    If sound-reproduction technologies changed the way we hear, where did they come from? Many of the practices, ideas and constructs associated with sound-reproduction technologies predated the machines themselves. The basic technology to make phonographs (and, by extension, telephones) existed for some time prior to their actual invention. So why did sound-reproduction technologies emerge when they did and not at some other time? What preceded them that made them possible, desirable, effective and meaningful? In what milieu did they dwell? How and why did sound-reproduction technologies take on the particular technological and cultural forms and functions that they did? To answer these questions, we move from considering simple mechanical possibility out into the social and cultural worlds from which the technologies emerged.

    If this book can only show some of the answers to these questions, it should be great!

  • Billboard reports on the declining (but not disappearing) reaction to the Dixie Chicks’ political commentary. Siva Viadhyanathan has some related thoughts (note the renaming ofr his weblog to Sivacracy.) Also, Salon has published reader’s letters to the editor on the subject.

  • More on the RIAA push to stop P2P at work from John Borland at CNet.

2003 March 18

(entry last updated: 2003-03-18 16:49:18)

  • It appears that, if the report that this Ad Age article cites is true, Jamie Kellner’s got nothing to worry about. Slashdot discussion: Study Finds Tivo Less of a Threat to Advertisers – the power of the blipvert revealed!

    For you non-Max Headroom fans, here’s the definition from Tech TV:


    Advertising in the future. High-speed commercials condensed into a few seconds that prevent channel changing and embed themselves in viewer’s minds. Sometimes they cause the heads of viewers to explode.

  • As mentioned earlier, FreeNet has a new release out – Slashdot discussion: Freenet 0.5.1 Released, P2P Network Stabilizing

  • The Register really gives Hilary Rosen what for in this analysis of her valedictory speech given upon receipt of the Harry Chapin Award from the National Association of Recording Merchandisers.

    Departing RIAA chief Hilary Rosen yesterday invoked the name of slain black civil rights leader Martin Luther King as she defended the music oligopolies’ right to prevent people sharing music. She also vigorously defended poisoning peer to peer sharing networks with junk music – presumably not a situation that the civil rights leader could have envisaged, in a clutch of policy statements that are a must-read for even the most casual music-lover.

    Billboard’s take is a little milder, of course.

  • For a while there this weekend I thought I was going to have to add a Dixie Chicks album to my CD collection – as an act of solidarity and pro-American/pro-freedom sentiment. But, as this Salon article suggests, the imperatives of recording contracts extend beyond musicianship and creativity. Ms. Maines still did a great thing, and I probably will still buy that CD (suggestions, anyone?) – but isn’t it interesting that the industry that proclaims it defends artistic freedom (and therefore should receive our support of the institutions that purport to support and defend creativity) works this hard to pressure their own artists over certain kinds of expression?

  • Is your company on this new RIAA hit list? – Piracy warning targets 300 companies – Wired’s coverage; SFGate’s feed from the LATimes

  • Maybe this BBC article can give you some ways around the problem: Online music pirates dodge capture – not really, though. Rather, this is piece on port-hopping P2P applications, making it hard to block them

  • An e-mail exchange with Ed Felten (wherein he pointed out that, despite my speculations, the JOLT conference was not on his mind when he posted his regulatory ratchet post) got me to find out a little more about Alec French’s tale of woe of the needlepoint designers.

    • I found this in the Sept 26, 2002 hearing record before Berman’s committee on “Piracy of Intellectual Property on Peer-to-Peer Networks” [pdf]:


      …Now another fact. P2P piracy doesn’t just affect the bogeymen—record companies and movie studios. P2P piracy destroys the livelihoods of everyday people.

      What do piracy profiteers have to say to Linn Skinner, a Los Angeles needlework designer whose livelihood has been destroyed by Internet piracy? Or about Steve Boone, a Charlotte small businessman who has watched P2P piracy decimate his karaoke tape company? How do they response to Mike Wood, a struggling Canadian recording artist who believes P2P piracy will derail his recording career before it gets off the ground? What do piracy profiteers say to the vast majority of songwriters who make less than $20,000 per year, and have yet to make one thin dime from the massive P2P piracy of their works?

    • A little more web-work yields this quoted article from the LATimes:

      Needlepoint Outlaws

      By P.J. HUFFSTUTTER, Times Staff Writer

      If the $40-billion global music business thought it had problems with the

      emergence of a revolutionary Internet tool called Napster, consider the

      now-terrified needlepoint industry.

      For years, grandmotherly hobbyists, hungry for doily-and-swan patterns, have

      forked over $6 and $7 for them. Without a peep of complaint, they have

      provided a steady stream of revenue to pattern publishers such as Cross My

      Heart and Pegasus Originals.

      In a good year, Pegasus can pull in about $500,000 from selling the

      copyrighted patterns to its aging customers.

      No more. Taking a cue from music-bootlegging teenagers, sewing enthusiasts

      have discovered that they too can steal copyrighted material over the

      Internet, thanks to anonymous file-sharing techniques. “I’m only sharing

      [the patterns] with my friends, and their friends,” said Carla Conry, a

      mother of six who runs PatternPiggiesUnite!, a 350-person underground Net

      community of stitchers who swap the patterns. “Why shouldn’t friends help

      each other out and save a little bit of money?”

      What is neighborly fun for Conry is outright theft to needlepoint companies

      and the artists who create the patterns. Sales at the South Carolina design

      shop Pegasus have dropped as much as $200,000 a year–or 40%–since 1997, in

      part because of such swapping, said founder Jim Hedgepath. He and a handful

      of companies and pattern designers are gathering evidence to wage a legal

      battle against the homemakers.

      “They’re housewives and they’re hackers,” Hedgepath said. “I don’t care if

      they have kids. I don’t care that they are grandmothers. They’re bootlegging

      us out of business.”

      …”This is a homey industry,” said Sabrina Simon, corporate counsel for

      Southern Progress Corp. “What kind of [damages] could we possibly get from a

      grandmother?” For now, the cross-stitch war must be waged on the

      grass-roots level. In hopes of gathering evidence and quashing the problem,

      publishers and designers say they are mobilizing small groups of spies to

      infiltrate the pattern-swapping clubs and nail the ringleaders.

      Designers say they have recruited friends and fans, sometimes offering free

      patterns in exchange for their snooping. Fellow artists like Linn Skinner of

      Hollywood, a 57-year-old needlepoint designer, spies on the clubs “for the

      greater good. I have friends who have been hit badly by this.”

      What’s REALLY noticeable about this article is that Alec appears (note: I said appears) to have conflated the tale of Pegasus (and their loss of business from $500,000 annual turnover) with the tale of Ms. Skinner, who’s cited in a different role in this tale.

      On the other hand, Ms. Skinner does seem to be making some noise on this subject:

    • UPDATE: Ms. Skinner has contacted me by e-mail to discuss her role in the copyright discussion surrounding her field. (Thanks, Linn!!) As can be inferred from the articles linked above, Ms. Skinner has spent considerable time within the Internet groups where needlepoint and patterns (and their “sharing”) are discussed. As she states:

      I would rather be known as a researcher who merits a reader’s ticket at the British Library than a copyright harpie, but the role seems to have been thrust upon me after I contacted the LA Times and furnished their top Napster reporter with my id and passwords for research.

      I spent over two years as a clandestine member of various online groups of needlework file swappers but now confine my efforts to amateur lobbying on behalf of our industry.

      She points me to a yahoo group that is concerned with copyright, focusing on the needlework industry; http://groups.yahoo.com/group/copy_rights/. She describes it as:

      …an open forum for both those who believe scanning and uploading needlework designs is appropriate and those who don’t and all the range of opinions in between. It is pretty quiet right now, but there are some rather frank exchanges of opinion in the archives.

      In reference to my earlier posting about her site (in my JOLT notes), she told me that:

      No, there aren’t many references to copyright on my website – those issues have been attended to elsewhere amongst peer groups and I get enough phone calls telling me to get stuffed from infringers as it is<G>

      As far as Alec French’s characterization of her situation, she points out that:

      I did make it clear (I thought) to Rep. Berman that I personally had not [been] financially damaged by infringers (they have little interest in historic needlework design) but our industry is facing difficulties of all sorts.

      She has graciously offered me access to the results of some studies that have been done to demonstrate the scope of the problem that this industry faces, and I will pass along what I can as I look into it.

2003 March 17

(entry last updated: 2003-03-17 17:54:33)

Happy Evacuation Day! And Happy Birthday, Tracy!

  • More of the same – first it’s terrorism, now it’s pornography and P2P. It’ll be interesting to see if the study upon which this Dawn Chmielewski article is based (so far only the press release is available) will pass Ed Felten’s test.

  • The BBC is reporting a spat between the IFPI and BT over how hard BT is trying to stop P2P filesharing – via GrepLaw

  • As I read Ed Felten’s latest posting I have to wonder if he was present (or just watching) this weekend’s JOLT Symposium, where exactly the kind of ratcheting he discusses was in evidence.

  • kuro5hin has a summary article on the recent hearings in the Hill connecting piracy and terrorism. LawMeme’s got a little bit, too.

  • Jupiter Research asserts the existence of a marginal price to copy when it comes to CD pricing. (Digested version)

  • the NYTimes writes up SXSW

    This year’s event started out singing the blues, with a set of deep Delta slide-guitar moans from the Arkansas bluesman CeDell Davis. Then came a pep talk by Daniel Lanois, who has produced albums by U2, Bob Dylan and Willie Nelson. “At a time when everything seems to sound the same, the voice of a generation is born,” Mr. Lanois said in a keynote speech.

    That seesawing continued during the four-day convention. Executives bemoaned the difficulty of making a profit in a business that is at odds with customers while its symbiotic partners — radio stations and retail outlets — require huge promotional fees to expose the music.

    Jonathan Adelstein, a commissioner of the Federal Communications Commission, called for public comment on the increasing consolidation of radio-station ownership.

  • Surpisingly (to me), the Globe’s SXSW coverage was better than the Times’.

    Familiar issues such as Internet downloading, artist contracts, and business models inspired lively debate from a divided audience, but Andy Gershon — president of V2 Records (home to Moby, the White Stripes, and much-lauded newcomers the Datsuns) — achieved a consensus describing the fallout of corporate consolidation and rampant commercialism.

    ”We’ve devalued music, and music needs to mean something again,” Gershon said to a roomful of nodding heads, going on to point out that if record labels are to have a viable future, ”it comes down to one thing: signing great artists and making great albums.”

  • YAhoo’s for pay video service gets ink in the New York Times and at ZDNet

  • Hiawatha Bray profiles Katherine Albrecht of CASPIAN in her fight for privacy, discussing in detail the Benetton decision to include inventory control RFID chips in their clothing products.

  • The LATimes has a piece on how much more successful DVD releases (vs. videotape) of TV shows have been.

  • The Register has an article on CD pricing issues surrounding cd-wow – importation of lower priced CDs worries UK retailers, apparently.

  • Ipsos Reid has posted study results (MP3 Newswire) suggesting that legality is not a concern of American MP3 file sharers. Slashdot discussion: Legal Issues Don’t Bother American Downloaders

  • Slashdot points to a Wi-Fi enabled hi-fi system from Philips

  • Derek points to a current exercise in file-sharing shutdowns at Brown

  • A few more post-JOLT thoughts:

    • Gigi Sohn is one angry lady. Of all the speakers in the morning session, she’s the one who spoke most emotionally about the topic, seemingly stemming from her description of herself as asleep at the wheel when the DMCA came through Congress.

    • There was considerable discord among the members of the panel over the degree to which the DMCA received debate. As has been cited elsewhere, the fact that it passed by unanimous voice vote has been asserted as evidence of a largely back room activity; by Jessica Litman, for example. Yet both Alec French and Rob Holleyman (of the SBA) shook their heads in amazement, claiming that there had been six years of hearings before a multitude of committees. As is usually the case, both probably have the facts right, but it would be very interesting to know more about the content of the hearings and the degree to which the issues of the public domain and fair use were raised – everyone agreed that the librarians were the only vocal activists at the time, but I bet there’s a really interesting history to dig through here.

    • I think Derek is a little harsh in his description of Rep. Boucher’s speech. (OK – he reads a little harsh, but I misinterpreted – click on the link to read more Derek comments.) It’s bound to be difficult to speak on such an arcane topic before an audience that has had the luxury of concentrating on the ins and outs for months/years. Moreover, the flaws in his speech are something to lay at the feet of his staff.

      On the other hand, I have seen much better speech reading. I understand that’s a skill, and I know I would have done much worse, but it was a little disheartening to hear one of the major Congressional proponents of a position with which you agree make some of the little mistakes he made, particularly when he elected to ad lib (a Grimm’s Fairy Tales movie?) Having seen Alec in action, I have to hope that Rep Boucher’s got equally able staff at his side when the debates get going on this topic – maybe Gigi should offer him some of her time?

    • Dan Gillmor’s “I am am not a communist, but….” was probably the funniest, yet on point, opening comment. On the other hand, his characterization of the Adobe CEO as believing that the degree to which fair use is available to the consumer should be entirely at the discretion of the creator of content was terribly chilling – particularly given (1) the fact that Adobe is following through on this idea in the kind of protections they put into the eBook and (2) the way the morning seemed to be a discussion of the degree to which copyright is about supporting the distributor rather than the creator.

      The problem, of course, is that every creator already has at their disposal the power to completely limit fair use – all the creator has to do is to keep his creation to him/herself! Of course, then the creator can’t make any money off of his/her creation either. Once that choice is made, economic rents in exchange for experiencing the expression of creativity, a balance has to be struck. Notwithstanding the notions of these artistic purists (like those I cited yesterday), the fact that the experiencer/consumer has to invest something of himself/herself in order to complete the exchange of expression means that a certain amount of control ought to be wrested from the hands of the copyright owner (as Jean Camp shouted out during the discussion, “what if I skip a word in a book? Is that illegal?”) (I really need to rework that alienation discussion)

    • And there was a lot of wishful thinking expressed about how “the market” was going to solve all of this – without any acknowledgement that markets only work as well as the governments that referee the gameplay. Copyright is a pure government construct; as a consequence, it’s not at all clear that “the market” is going to tell us what copyright should be – all it can do is tell us whether or not a particular construction of copyright is working or not.

      And, that was probably the basis for the real conflict that we saw. To some people, copyright is working great – as Alec said, the greatest number of works available to the greatest number in the greatest variety ever; not a lot of lawsuits. To others, every day is a demonstration of its failures – more and more file sharing; more and more chilling effects; more and more decimation of the incentive to innovate; more and more unnecessary and dangerous controls.

    • I need to track down the book that Siva cited – a history of the influence of country music on American culture that, because of a university press’ concerns about copyright litigation, does not include a single song lyric. I hope he’s got something on his weblog to get me started.

    • And I’m definitely with Siva when he expressed his dismay at the characterization of The Wind Done Gone as a parody. A useful legal fiction that allowed everyone to back out of a messy court fight, maybe, but puh-leeze!

2003 March 16

(entry last updated: 2003-03-16 19:44:35)

  • The CEO of StreamCast Networks, Morpheus’ parent, resigns. Why? We’ll see, but no one’s saying right now.

  • Another demonstration of the schizophrenia within Sony is this article from New Scientist describing new CD recording/storage techniques/devices that vastly increase capacity, to the dismay of record companies. The Slashdot discussion includes some entertaining comments on the ability to perceive the sonic defects in lossy compression formats.

  • I can see that, as the clock winds down, it’s going to be difficult to eschew including at least one war posting, my desires to avoid warblogging to the contrary – today, it’s Jack Balkin’s post from Saturday

    Although the analogy is not quite accurate, the discussion of CleanFlicks yesterday makes this Times article on the disputes surrounding the merits of music arrangements worth a read. A look at one of the cultural drifts that supports some of these narrowly-constructed concepts of copyright.

    Today all of that has changed. The arrangement is widely regarded as second-class music. At best it is tolerated, at worst disdained. What brought about the change? For the last 80 years, musicology has been increasingly successful in pressing the case for the urtext: an authentic performing edition in which, purportedly, the composer’s original thought is perfectly preserved, every note is sacrosanct and the “sonic surface” of the music is reproduced exactly as the composer envisaged it. A musical performance, by this view, should amount to the re-creation of a bit of history.

    The arrangement fails on all counts. By definition it is not interested in the composer’s “original thought”; it treats the text with impunity; it does not revere the sonic surface. And because it plays fast and loose with history, the arrangement has been punished by savants, those self-appointed guardians of the past. So successful has musicology been in this regard that it has created a world of musical apartheid. It still takes an act of courage to play a concert of arrangements — let alone two concerts, as the Eos Orchestra is doing this week. A vast treasury of music is being hushed up and forgotten.

  • A look at the economics of telecom by considering the magnitude of the recent asset writedown at Worldcom. Maybe the comparisons are appropriate, but that’s a lot of lost assets for any industry.

    Of course, companies that are not operating in bankruptcy do not need to reduce the value of their assets by the same amount as WorldCom has done. But one can make a case that a writedown half the size of WorldCom’s — say 40 percent — is realistic.

    Another former telecommunications analyst said: “It clearly shows that the remaining companies’ true economic value is well, well below where their book values are, even for hard assets and forgetting the good will. And if true economic value is far below that, then stock prices will likely come down.”

    Thanks to WorldCom, we are closer to knowing how much demonstrably dumb money went into the telecom industry at the century’s end. Although this particular bubble burst years ago, WorldCom’s news from last week reveals just how long it will take to come back into balance.

2003 March 15

(entry last updated: 2003-03-15 20:32:15)

  • Went to the morning session of the JOLT symposium, and stayed to hear Rep. Boucher talk at lunch before meeting my wife for the afternoon. Saw Derek there, who’s posted his notes from the session on his weblog.

    Since I was only there for the morning through lunch (Sorry, Jonathan!), I’ve got less to say than Derek. Below are a set of disassociated ramblings that I’ll try to sharpen up later.

    • Maureen O’Rourke raised what I thought was a particularly key issue when she raised the question of industry structure during a question she posed to Alec French, who ably presented Rep. Berman’s position. Her comments got me thinking about the striking dichotomy of the discussion of fair use that we saw this morning. On the one hand, the notion of copyright as the protector of the incentive to create was routinely cited, yet several panelists (Siva in particular) kept pointing out that the law seems to be failing to prevent piracy and other egregious violations of the most primal elements of copyright protection.

      When we look at what the laws are being constructed to achieve, does it not look like the real objective is to protect the distributors of content, rather than the creators? Going back to some of the things I’ve said earlier about technological alienation (which I can see it’s time to rework!), it is clear that the distribution industries have elected to employ digital media because it saves them costs in production and distribution. Moreover, there are certainly questions as to whether those cost savings have been passed along to the consumer or the artist. Instead, I found myself considering that one could easily claim that the bulk of recent copyright legislation has been designed to defend a set of industries whose business models are being made obsolete as digital distribution obviates the need for the services that they once supplied (c.f., the Natalie Merchant article from the NYTimes this week).

      So many other industries (telecomm, electricity, railroads) have been forced to rethink their business models as the concept of distribution has been disassociated from the product – are we allowing the notion of copyright to derail the changes that the new technologies would otherwise lead us to greater efficiency for both the consumer and the creator by sustaining the distributor?

      (Note: Just to head off one objection, I’m not buying the trickle-down theory of distribution-to-creator any more than I buy trickle-down economics in any of the other policy venues it gets asserted – if we want to incentivize creators, I’m not buying the argument that we need old-style distributors to make sure the creators get paid – we have new technologies out there to give us all more efficient ways to make this happen to the benefit of both the consumer and the creator of creative content.)

    • Adding fuel to this thought was Alec’s defense of our current copyright regime – his claim that, when one looks at countries where the copyright laws are not so well established, there are no large book publishers, movie industries, etc. Hmmm – are these the creators, or the distributors? And, as Siva and I discussed after lunch, is it even true anyway? No publishers in Hong Kong?

    • I would be remiss, especially given the fact that so much of this overall conversation about copyright online (a favorite theme at Donna’s Copyfight) has been about deconstructing the polarizing rhetoric employed, to skip a discussion of Alec’s special skills in this regard. His opening comments on fair use were masterful in the way that they kept the audience off balance. I hope that the webcast will be accessible, but if not, I’d like to describe what he did.

      As Derek describes, Alec suggested that copyright and fair use went together. More powerful, however, was his assertion that the current copyright regime is demonstrably good for creators because never has there been so much creative material, in so many forms, available to so many people as has been the case during the past five years since the passage of the DMCA.

      This is a striking claim. Yet, even if it is true, it has nothing to do with the contention that somehow the current copyright regime is healthy for the creators of content. The digital locks aren’t protecting the much-celebrated needlepoint pattern designer of Rep. Berman’s district. (Although, a quick perusal of their site does not yield any of the tales of woe that Alec claimed I would find – in fact, I find links like this instead.) As Siva pointed out, somehow these protections aren’t getting in the hands of the 99% of creators who aren’t tied to a big distributor, so the argument that copyright is working seems odd – even if Alec’s claim is true – a very clever shift of the discussion.

    • I’m sure Ed Felten (and the EFF) will be happy to hear that Alec (and therefore, I assume, Rep. Berman) see the Lexmark case as emblematic of exactly the kind of thing that the anticircumvention provisions of the DMCA is supposed to protect! So much for the freedom to tinker.

  • David Weinberger posts some thoughts relating to my comments on Kling’s World of Ends response.

  • Slashdot posts on the Forbes editorial Larry Lessig cited in his weblog last week. Steven Forbes calls the Eldred Act a “patently good idea.”

  • Pertinent to today’s JOLT conference, an article at Wired on art developing out of the application of technologies with potentially infringing uses.

2003 March 14

(entry last updated: 2003-03-14 15:48:12)

2003 March 13

(entry last updated: 2003-03-13 17:56:51)

  • The Farechase case has hit Slashdot, so it’s important that you go directly to the source, Denise Howell’s postings, since it’s her firm that’s representing Farechase. She’s got all the relevant links.

  • Larry reports that, according to an editorial in the current Forbes, he has at least one prominent Republican supporter for the Eldred Act.

  • Arnold Kling’s comments on World of Ends are worth a look.

    Of his five respondent points, I really am only worried about “Intermediaries add value.” I think a more correct assertion is that “Intermediaries may add value;” but markets should be allowed to reveal whether consumers want what the intermediaries added – and consumers should be given appropriate opportunities to disintermediate. Without that guarantee, it may very well be that then Arnold’s 5th point would be wrong – such markets could indeed be quite exploitative.

    For example, consider this report on Office 2003 XML from Internet News (via Slashdot where violations of Kling’s rule 4 “Bashing Microsoft does not make you smart.” transpire daily [hourly? picosecondly?]). The article doesn’t reconcile the question it raises, but it clearly demonstrates that people do worry about how intermediaries might act to control, and why efficiency would suggest that alternatives ought to be allowed to develop (and what if an XML schema is declared IP?).

  • (Via Derek) – this outline is pretty good now, but should be great when the hyperlinks are added – OOPS! – they are there, just oddly formatted so you have to work at it.

  • Woo-hoo! $12.60 is coming my way in the CD price fixing settlement!

    Music buyers who applied for a share of a price-fixing settlement involving major U.S. record labels and retailers will receive about $12.60 apiece if a judge signs off on the deal.

    Roughly 3.5 million U.S. residents who purchased music between 1995 and 2000 registered for claims by the March 5 deadline, said Maine Assistant Attorney General John Brautigam.

  • See the faces behind some of the “blawgs” in this ABA Journal piece. Now I know how to recognize Denise!

  • KaZaA is being investigated for more than P2P distribution of MP3s; porn is also on the agenda, according to CNet’s Declan McCullagh. Live committee broadcast, Full Committee hearing on “Stumbling onto Smut: The Alarming Ease of Access to Pornography on Peer-to-Peer Networks”

  • Natalie Merchant’s decided to “step off the pop treadmill.” A very interesting look at record making outside the traditional boundaries.

    Ms. Merchant paid for recording and packaging “The House Carpenter’s Daughter,” including the $3.50 manufacturing cost of an elaborate box for the first 30,000 copies. (The CD will sell for $16.95.) The special package “was printed in America for three times the price in Hong Kong,” Ms. Merchant said.

    …Even so, “The House Carpenter’s Daughter” needs to sell only 50,000 copies to break even, less than 15 percent of what “Motherland,” her last album for Elektra, sold.

    “We’re not trying to recoup some enormous debt,” Mr. Smith said. “The economics of making this record are very prudent. When we sell 200,000 copies, we’ll be standing on our chairs, hollering. If we released this record with these kinds of goals on a major label, we would look like a failure. At Elektra, if you just sell 1.5 million, everyone goes around with their heads down.”

    More importantly, does Internet distribution/promotion mean that you don’t need the record companies – at least, if you’ve already “made it?”

    “For those already through the door, doing it on your own is incredibly viable,” said Jay Rosenthal, a music-business lawyer who represents the Recording Artists’ Coalition. “It’s going to be very attractive, and it’s going to be a viable alternative even for bands who are doing well. The only reason to go to the major labels is to get your songs on the radio, to go for the promo money. If you don’t need to get on the radio, and you’ve got a name, go out there and go for yourself. If there’s any moment that artists should do it, it’s now, before things get worse.”

    … They expect fans to learn about the album from Ms. Merchant’s Web site and through publicity and a small advertising campaign. To gauge demand, they may offer fans who order the CD in advance a downloadable file of a song from the sessions that is not included on the album. In an increasingly consolidated retail business, a handful of chain stores, like Borders and Barnes & Noble, have accounted for a large percentage of Ms. Merchant’s sales in the past; now her label is approaching them directly.

    So, the question becomes will a recording contract be a necessary stepping stone to the nirvana described here – i.e., all artists must endure a period of indentured servitude? Or can mechanisms develop that don’t yield the pitfalls of Kling’s Content is crap manifesto?

  • A reader (thanks, George!) sends a BBC link that points out that, while the US’ cellphones can’t get much in the way of music (see below), those in Europe have some real options (as noted in this Register article from the 11th) for their MP3-capable cellphones.

  • The NYTimes has an article on the new CD formats (SACD [FAQ] and DVD-Audio [rec.video.dvd FAQ]) that are trying to (a) recapture market and (b) block copying. Note that many audiophile magazines have noted in the past that, while the players designed to use these new formats do yield dramatically better sound, they also tend to do worse than conventional CD players when it comes to playback of traditional format CDs. I don’t know if that’s changed, but it’s certainly slowing me down….

    That audience is more inclined to embrace new hardware, which for both SACD and DVD-Audio is typically a DVD player with an additional chipset and six outputs for surround sound, or in many cases, a specially designed “home theater in a box” system. What the industry gets in return, besides the consumer’s money, is the peace of mind that comes with the latest in digital content security: most experts agree that neither format’s content will be pirated anytime soon.

    Derek asks the right questions in his weblog.

  • More on major league baseball’s internet webcasting plans

    About 1,000 major league baseball games will be broadcast on the Internet this season, though live feeds of hometown teams will be “blacked out” locally to preserve lucrative television rights.

    … To block hometown games, baseball will use so-called geolocation technology from Quova Inc., which matches computers’ unique Internet addresses to cities or ZIP codes.

    But the system is not perfect. America Online subscribers, for instance, will often appear to be coming from the company’s Virginia headquarters, regardless of actual location.

    … Anyone caught intentionally circumventing the system will be banned and fined $100, automatically charged to their credit cards, Bowman said.

    Slashdot discussion: Major League Baseball Releases Webcasting Plans

  • Here we go: in Analysis: Germany’s copyright levy, we find that:

    Based on the recommendation of its patent office and following fierce lobbying by VG Wort, an association of German composers, authors and publishers, Germany is poised to enforce a 3-year-old law and impose a copyright levy of $13 plus 16 percent in value added tax per new computer sold in the country.

    The money will be used to reimburse copyright holders — artists, performers, recording companies, publishers and movie studios — for unauthorized copying thought to weigh adversely on sales.

    … Nor is Germany alone in this attempt to ameliorate the pernicious effects of piracy by taxing the hardware used to effect it.

    The European Union’s Directive on the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society (background, summary page), passed in 2001, is strenuous, though not prescriptive. It demands that member states ensure “fair compensation” to copyright holders for copies made by means of digital equipment — but fails to specify or proscribe how. It has been incorporated into local law only by Greece and Denmark hitherto.

    In Austria, Literar-Mechana, the copyright fees collection agency, negotiated with hardware manufacturers and importers the introduction of a levy on personal computers and printers. The Swiss are pushing through an amendment to the copyright law to collect a levy on PCs sold within their territory. The Belgian, Finnish, Spanish and French authorities are still debating the issue. So are Luxembourg and Norway.

    According to Wired, the Canadian Private Copying Collective, the music industry trade group, has proposed “new levies to be applied to any device that can store music, such as removable hard drives, recordable DVDs, Compact Flash memory cards and MP3 players.”

    Slashdot discussion: Germany Mulls A Copyright Levy + VAT For PCs

  • Recall that Germany and HP have been fighting about this for some time. HP told to pay three-and-half years’ CD-R royalties

  • Note also that, I think, this is the same legislation known as the “EU Copyright Directive” which most member countries failed to pass implementing legislation by the deadline.

  • OK, now there are cellphones that can work as MP3 players, except that, as CNet reports, there doesn’t seem to be anyone offering tunes to download.

2003 March 12

(entry last updated: 2003-03-12 18:12:14)

  • Catch up on the blog discussion of Lessig’s return (post Eldred petition) here from the Volokh Conspiracy – or Copyfight

  • Amid all the hoopla, David Weinberger (see below) describes Cory Doctorow’s talk at SXSW (via JoHo) (if you can do QuickTime, look here):

    Cory says: The role of technology is to create opportunities for the entertainment industry. The entetainment industry’s role is to seek legislation that will close down those opportunities. From piano rolls to TV to Napster, that’s been the story.

    Factoid: “If you were to tape digital movies and use Fedex to ship them to your friends, it would be about 100x less expensive than shipping them to your friend over the Net.” Even at the fastest connection speeds, it’d take several days to move a movie. So, Hollywood’s belief that it’s a threat is overblown.

    The most important theme in Cory’s talk: Hollywood does not want us to have general purpose computing devices. The “broadcast flag” bit the FCC is considering would only work if all digital tech supports it and if device that don’t — like the computer you’re reading this on — are outlawed because they don’t support it.

  • LawMeme has a thoughtful roundoup of the Boalt DRM Conference (via Copyfight)

  • Jupiter Research’s Mark Mulligan (Digital Media, Europe) speculates on why Roxio is working to resurrect Napster.

  • A little more on Zoe Lofgren’s bill from the San Jose Mercury News

    “Most people — at least, most adults — don’t expect to get content as a freebie,” said Lofgren, a San Jose Democrat. “But when people pay good money to buy something and then they can’t use it in the way they’ve become accustomed to, it makes them mad.”

    Two powerful lobbying groups — the Motion Picture Association of America and the Business Software Alliance — say the Lofgren bill would undermine the foundation of the DMCA, created to help copyright holders combat theft at a time when technology makes it possible create an infinite number of pristine digital bootlegs.

    “As drafted, this legislation essentially legalizes hacking. It puts a dagger in the heart of the Digital Millennium Copyright Act,” said MPAA Chairman Jack Valenti in a prepared statement. “It would deny content owners the ability to protect their works by technological means.”

  • AOL bites the hand that once fed it, giving its users software to block popup ads.

  • Consider the power of Internet distribution of music: the Beastie Boys release an antiwar single online only.

    The song is “In a World Gone Mad,” which was released yesterday with no advance fanfare by the Beastie Boys. Though not commercially available as a single, the song is available free at the Beastie Boys Web site (www.beastieboys.com) and is being distributed to disc jockeys, who were unaware of it until they began receiving copies yesterday.

  • Salon has an article by David Weinberger interviewing David Reed that tries to explain open spectrum. The argument: interference is not a function of spectrum; it’s a function of the technologies employed to extract information from signals. Current spectrum allocation is based on 100 year old technological limitations; the technology has changed, and so should the metaphors used to do spectrum allocation. Moreover, the end-to-end principle should also be employed – smart radios, “dumb” spectrum. A typically good (and provocative, see the Slashdot discussion) Salon read.
    Update: Slashdot discussion now online. The bulk of the comments seem to suggest that Weinberger’s analogy of color is unconvincing, and that David Reed needs to read some physics books.

    At the risk of showing my ignorance, I have been convinced by a different analogy that the Media Lab people have been floating. Consider speech – a very limited bandwidth communications medium, insofar as spectrum is concerned. So, why is it that it is still possible to communicate using speech when you’re inside a football stadium with 50,000 other sources using the same bandwidth? A combination of power management (shouting!) and intelligent signal processing.

    It’s not the whole story, of course, but it was a revelation to me when I first heard it – I started to get the idea that there are at least some possibilities that we are currently missing because we don’t really think in electromagnetism (or probability, or a host of other complex arenas).

  • Apparently, between the Honest Thief and past KaZaA rulings, The Netherlands is now trying to get rid of their reputation as a file-sharing haven. For an example of the kind of press that has been leading to this perception, see this USAToday piece

  • Although this CNet article is appropriately cautious, Hot-spot hopefuls could get burned, the real question is why aren’t they suggesting that these companies read a World of Ends first?

  • On the other hand, this Wired article (Free Wireless on Newberry [sic] Street), while it tragically misspells the Boston Street it describes, does suggest one possibly workable model for WiFi hotspots.

    Wired has corrected their typo – it’s Newbury Street, of course.

  • This has been in the wind for a while, but now it’s official: Benetton will start putting RFID chips in all their clothing. (CNet article; Wired News article; SFGate’s own article, vs. the AP newswire piece linked above) While it’s only supposed to be employed up to the point of sale, there’s plenty of concern that it could be used beyond the point of sale. The Slashdot discussion has further links and specs on the chip.

    Other businesses, including luxury clothing retailer Prada, have previously introduced RFID inventory tags. Procter & Gamble, Wal-Mart and British retailer Tesco are among companies pursuing smart tags for restocking, anti-theft and anti-counterfeit purposes.

    Phillips says its smart tags will be imperceptible to the wearer. They store information on the style, size and color of the garment and its path through the manufacturing and stock chain, said Karsten Ottenberg, senior vice president of Philips Semiconductors, based in Hamburg, Germany.

    Because the ID is embedded in the clothes — it’s an antenna-bearing chip smaller than a grain of rice that’s attached to the clothes’ labels — any item returned to the store automatically re-enters the inventory.

    Since the chips contain no power source they can only transmit their data when within 3 feet of a receiver — either a handheld unit or a shelving monitor in a Benetton store or warehouse, Ottenberg said.

    The ID tags have the capacity to store and release more information — although Ottenberg cautioned that the chips will store no data about the customer, and will be essentially useless after the garments leave the store.

  • Recall that I suggested voting on the Iraq war on bill Frist’s WWW site last week? The Register follows up

  • The Register also has a little more on the Mitch Kapor departure from Groove over TIA. Wired, too

2003 March 11

(entry last updated: 2003-03-11 21:02:21)

Sorry – this is crunch time for admissions, so I have meetings all day. I hope to post some later today, but you may want to check in with other sources during the day!