So the 35-year-old computer programmer from Ottawa, Ontario, wrote a piece of software that let him record the show directly onto his PC hard drive while he snoozed.
The software, TimeTrax, also neatly arranged the individual songs from the concert, complete with artist name and song title information, into MP3 files.
Then MacLean started selling the software, putting him in the thick of a potential legal battle pitting technically savvy fans against a company protecting its alliance — and licensing agreements — with the music industry.
MacLean says he is simply seeking to make XM Radio — the largest U.S. satellite radio service with over 2.1 million members paying $10 a month for about 120 channels — a little more user-friendly.
“The larger issue here is they came out with one lock and another creative person goes out to create a key,” said Michael McGuire, an analyst at technology research firm Gartner. “It’s very hard for policy and copyright law to keep up with the pace of technological change.”
A spokesman for the Recording Industry Association of America said his organization had not reviewed the software, but said that in principle it was disturbed by the idea. “We remain concerned about any devices or software that permit listeners to transform a broadcast into a music library,” RIAA spokesman Jonathan Lamy said.
You’ve come a long ways since last August. I notice that now you have some cool projects, lots of people linking to the resources on your site, and some press coverage. Tell us about that transition and growth.
We never imagined that Downhill Battle would become such a long-term project for us. When Holmes and I started the site in August 2003, we saw it as a chance to make a timely push-back against a totally one-sided debate about the future of the music industry. Now we’ve been sucked in to an even bigger fight for the future of our culture and the role that the internet can play in reshaping it. What started as a webpage turned into 60-hour work weeks before we new what hit us, but we care deeply about this stuff and, most of all, we’re confident that our side can win.
[…] You’ve definitely interviewed some cool musicians (of which Thievery Corporation is my favorite). What is a recurring theme that surfaces in those interviews?
Our interviews are conversations about music and the music industry with important independent musicians. It’s crucial that we and everyone else hear from musicians while we’re in the midst of this huge debate about what direction music should take, and we want the interview series to be a resource for people.
Standing at this intersection between art and technology, there’s really a fascinating connection that comes out in the interviews between how a lot of musicians feel about music and how free, open-source software people feel about software. Proprietary software monopolies like Microsoft are exactly the same as the record industry monopoly: at one point they were useful enough to people that they made a lot of money and got themselves into a position of exclusionary control. The major record label market share is almost as high as Microsoft’s. They both use that power to deploy a series of dirty tricks that destroy competition– in music that means payola on radio and in magazines that silences independent musicians. Ian MacKaye compares record companies to bottled water companies: it’s convenient to have a company take water from a river and put it in bottles for you to use, and it’s convenient to put music on a CD so you can listen to it. But gradually the record companies have started working against the public interest.
Slashdot – Blog Torrent: Downhill Battle Interview
In return, JibJab dropped a lawsuit against Ludlow that sought an order saying its use of the song was protected because it was a parody and “This Land” was in the public domain.
The creators also agreed to provide a link on their Web site to the song’s original lyrics and to donate 20 percent of any profits to the Woody Guthrie Foundation.
“The settlement accomplished Ludlow’s goals, which was to bring people back to the immediate message of Woody Guthrie,” said Paul LiCalsi, an attorney for the firm.
LiCalsi said JibJab’s version of the song wasn’t protected under copyright law because it targeted the election rather than the song itself. Protection under the fair use clause of the law requires that copyrighted material be the subject of the parody, he said.
JibJab’s lawyers said Ludlow was misinterpreting the law and that the song in the cartoon clearly was a parody.
Ernest’s Ludlow Got Some Concessions in JibJab Case has some further links and discussion
Furdlog JibJab related postings
Copy protection technologies used to prevent CDs from being pirated online are facing a legal challenge in France, where a judge began a formal investigation of record label EMI Group PLC for using them.
Confirming a report in French financial daily Les Echos, the record store Fnac said Wednesday it has also been placed under investigation by a French judge along with EMI’s French arm.
[…] Filed on behalf of several individual consumers, it alleges that the copy protection system used on certain EMI discs makes it impossible to play them on many car stereos, hi-fi’s and personal computers.
French consumer association UFC-Que Choisir is seeking damages in the legal action, which also claims that EMI’s copy protection stops customers from making personal copies of their CDs — a privilege granted to French consumers by a 1985 law.
Julien Dourgnon, deputy director of the consumer group, said the ability to make copies for private use — for example by transferring music to a portable MP3 player — was important to many record buyers.
“We’re defending that freedom, we’re not defending piracy,” he said.
TechDirt has another link
Later: CNet News’ French investigators probe copy-protected CDs
And the New York Times’ take on the role of DRM in our culture: A Digital Divide
If nothing else, this dispute demonstrates the increasing importance that digital rights play in our lives. Digitally encoding music, selling it and sending it over the Internet, not to mention carrying thousands of songs around on a music player the size of a box of cough drops – these things are easy to do. What’s hard, and yet what makes it all possible, is creating the software bottleneck that protects the rights of copyright owners.
It would be better for consumers if Apple began licensing its digital rights management software, only because the iTunes Music Store will not be able to lock up access to all the copyrighted music in the world. But RealNetworks’ contention that Apple is stifling freedom of choice is self-serving. You can play music from any CD on an iPod, once it has been digitally copied, and the device works on PC’s and Macs. Some critics like to argue that Apple is making the same mistake that it made by not licensing its operating system back in the 1980’s. At the moment, Apple seems to hold most of the cards.
See earlier Real Seems To Be Losing The PR Battle
Later: Ed Felten’s thoughts – NYT Chimes in on the Real/Apple Issue
But since its introduction, nine co-sponsors have signed on, both Democrats and Republicans.
And significantly, that list of co-sponsors now includes two of Congress’ most influential members: Senate Majority Leader Bill Frist (R-Tennessee) and Senate Minority Leader Tom Daschle (D-South Dakota).
[…] “The act’s proponents have emphasized that they only want to target ‘rogue’ P2P companies while leaving the Sony Betamax decision intact, so the technology associations have drafted a bill that takes them at their word,” said [EFF’s Fred] von Lohmann. “Of course, the RIAA and MPAA will predictably complain that the language is too narrow, which will then beg the question — who else did they want to target with this legislation? How many legitimate technology companies do they want swept up in the web of legal uncertainty created by this bill?”
“There is no implication here that the passage of a bill is inevitable,” said von Lohmann. “This is intended to force the RIAA/MPAA to tip their hand, to show just how radical a change to copyright they are really after. Once that is accomplished, I imagine any congressional eagerness to pass a measure will wane.”
Others are less optimistic, including Adam Eisgrau of file-sharing industry group P2P United.
“Powerful political forces under pressure can, and often have, produced very bad law,” said Eisgrau. “There’s no doubt that the combined muscle of the recording and movie industries could well move a cosmetically changed, but innovation-chilling, version out of the Senate Judiciary Committee and to the Senate floor with the help of the bill’s influential co-sponsors.
“With the end of this Congress approaching, anything can happen — and often does,” he said.
The F.B.I. conducted a covert investigation by loading two computers with copyrighted material and joining the Underground Network, a move that let it identify five hub computers that coordinated the file sharing. An F.B.I. agent then downloaded 84 movies, 40 software programs, 13 games and 178 songs from the network.
The network operates a Web site – www.udgnet.com – that is registered to an address in San Antonio. A man who answered the telephone at the number associated with the domain, who declined to give his name, said the government’s charges were baseless. The Underground Network, he said, is an online community that is used for social communication and to share tips. It is used by people involved in file sharing and others, he said, but the network itself is not involved in trading files.
“Everybody is pretty upset we are being targeted as a distribution group,” he said. “We never distributed any kind of material. We did nothing illegal.”
The case relates to the No Electronic Theft Act, a 1997 law that extends criminal copyright law to cases where there is no clear profit motive. It imposes fines of up to $250,000 and jail terms of as long as five years for those who distribute copies of copyrighted works.
See also CNet News’ Justice Dept. probes for pirates
Until a few years ago, only commercial pirates doing things like selling illegal copies of CDs or DVDs could be prosecuted under a criminal charge, while copyright infringers who weren’t doing it for profit had to be sued in civil court. Then, in response to an Internet piracy case involving a Massachusetts Institute of Technology student, Congress enacted a 1997 law called the No Electronic Theft (NET) Act that made nonprofit piracy a federal crime.
The NET Act says that peer-to-peer pirates may be given up to $250,000 in fines and prison terms of up to three years–though people targeted under the law typically agree to plea bargains that carry milder punishments. In general, violations of the NET Act are punishable by one year in prison, if the total value of the pirated files exceeds $1,000. If the value tops $2,500, that term is not more than five years in prison.
Proving that file swappers violated the NET Act is not a trivial task. It requires a prosecutor to demonstrate not only that defendants made the files available, but that they actually made or distributed copies.
That’s why the RIAA is lobbying hard for new legislation that would make it easier for federal prosecutors to land convictions under the law. The RIAA is backing the Piracy Deterrence and Education Act (PDEA), which says prosecutors would no longer have to prove that copyrighted materials were downloaded by others. Instead, they would need only to show that those files had been publicly accessible in a shared folder.
Here’s the Thomas entry for PDEA – HR 4077 – Sponsored by Lamar Smith, co-sponsors include Reps. Berman, Bono and Coble. Surprisingly, MA Rep Meehan is also on the list. And the text of the bill is well worth a read – See, for example, Section 10 – Enhancement of Criminal Copyright Infringement, giving significant latitude in defining the “retail value” of the infringement; more ugly is the “Sense of the Congress” section 9, full of some significant nonsense.
Later: This p2pnet article just reinforces my question – UDGNET to AP, DoJ, FBI –
The European Commission will, after all, launch a probe of the deal between Microsoft and Time Warner to take joint ownership of a US DRM company, ContentGuard. The probe is warranted, the Commission announced in a press conference today, because the deal could lead to Microsoft extending its monopoly in operating systems to the locks and keys for the digital distribution of books, music, movies and third party software.
Later: NYTimes’ Europe Opens Another Microsoft Inquiry
And note the use of language: Justice Dept. probes for pirates
The U.S. Department of Justice announced on Wednesday that it has launched its federal criminal probe of piracy on file-swapping networks.
Federal agents have searched five homes and one Internet service provider in three states, seeking evidence of criminal copyright infringement, according to a Justice Department statement. The investigation is targeting a specific private file-swapping group called the Underground Network.
“The execution of today’s (search) warrants disrupted an extensive peer-to-peer network suspected of enabling users to traffic illegally in music, films, software and published works,” Attorney General John Ashcroft said in a statement. “The Department of Justice is committed to enforcing intellectual-property laws, and we will pursue those who steal copyrighted materials, even when they try to hide behind the false anonymity of peer-to-peer networks.”
The DoJ press release: Attorney General Ashcroft Announces First Criminal Enforcement Action Against Peer-To-Peer Copyright Piracy; The Register – US DoJ searches homes of P2P evil doers; Slashdot Justice Dept. Raids Homes of File Swappers; Techdirt’s Forget Slamming Spam, Ashcroft Wants Those Evil File Sharers
Note that Richard Posner’s perspective on filesharing is particularly ironic given the resources that the DoJ is bringing to bear:
We are in the presence of an arms race between encryption and copying technologies; if the latter prevails in this competition, copyright law will be ousted from one of its domains.
With all due respect for the interests of the recording industry and the file sharers, I regard this particular interaction of law and technology as relatively trivial in its overall social consequences. I am much more concerned about the ability, or rather inability, of the law and other policy instruments to cope with the issues thrown up by the relentless progress of science and technology.
Oh, yeah! New lawsuits, too – Music Industry Sues 744 for File Sharing [pdf] — The Register has a different count, including 152 who refused to settle — Music labels sue 896 more music lovers; p2pnet; Slashdot’s RIAA Sues More Music Lovers
So Bjork is not superstitious then?
“You know, its ironic that just at the point the lawyers and the businessmen had calculated how to control music, the internet comes along and fucks everything up.” Bjork gives the finger again, this time waving it into the air. “God bless the internet,” she adds.
And what about you, then?
“I’ll still be there, waving a pirate flag.”