The Reg’s Grokster Commentary

Too bad this didn’t make it to the NYTimes instead: Silent tech majority invites Mickey Mouse to poison P2P

It happened years ago. The “KA” appeared, and everyone embraced it. They hugged that “KA” with all their might, hoping it might correct a collapsing technology scene. Then, when the “KA” grew a sore, they dumped it.

The “KA” or killer app was Napster – and on a larger scale P2P software. P2P file-trading started to thrive around the same time that the Nasdaq started to dive. Intel saw P2P as a way to sell more processors and publicly cheered the technology. Sun Microsystems followed suit with the JXTA P2P protocols. A host of smaller software companies crafted flimsy business models around the P2P idea. These players recognized that the time to whine about not having a killer app had passed – one was gyrating right in front of them.

Now we find P2P software in front of the Supreme Court. And not only P2P software. Hollywood today will ask the Supremes to overturn an ancient decision protecting the use of VCRs and indirectly other devices that can be used to copy content for personal use.

Has the tech industry that once salivated over P2P software’s ability to chew through processors, hard drives and bandwidth run to the rescue? Not exactly.

The only company willing to stand out on its own and back the P2P software makers is Intel – the most vocal backer of the old, illegal Napster (not the boring new Napster.)

[…] You might think some smart folks over at Seagate, AMD, Cisco, Adobe, IBM, Apple, HP, EMC would consider for a minute how a P2P revolution could benefit them. No such luck.

[…] There is a depressing mood hanging over this whole mess. In this time of Bushness, you can’t help but feel that the Supreme Court will overturn Sony and put some temporary power back in the hands of the dinosaurs. “Let the eagles soar,” as Ashcroft liked to sing. The Bushies have already said they’d prefer to see these P2P culprits be put down. We’re not quite sure how the Republicans ended up siding with effete, drug addled Hollywood types. But they did.

And then you have this monster of a technology industry – the engine of America’s growth – that can barely muster a few words in its own defense. The IT crowd – other than Microsoft and to some degree Intel – has never been big on Washington; but come on. Are these companies that produce the life blood of our economy really going to be pushed around by a stuffed mouse with buttons and helium balloon shoved down his throat? Only one company had an opinion all its own on the matter? Shame.

It’s not even just lack of voice in the briefs that is depressing. The big whig vendor brass has been silent on the matter. No one has had the guts to call out Hollywood for the ancients they are. No major company been smart enough to take a strong, public stand on P2P. That McNealy guy at Sun usually has a lot to say. Instead, they’ve twiddled their thumbs as the RIAA sued your children, grandparents and naval cadets.

Ironic Note in AP’s Grokster Writeup Today

Court Case Could Rewrite Copyright Rules [pdf]

Regardless of the outcome, it still won’t be legal to download copyrighted materials over the Internet without permission, though tens of millions of computer users do so each day. And any ruling won’t affect thousands of copyright lawsuits filed individually against Internet users caught sharing music and movies online.

[…] Theodore Olson, the former U.S. solicitor general hired by the entertainment companies, said the threshold for liability “is so high that basically if there’s any conceivable legitimate use of the system it passes the test. That standard has got to be rejected.”

Olson’s former law firm represented Sony in the 1984 case.

In Case You Missed It….

Hiawatha Bray doesn’t like file sharing — or much about the technologies associated with it. And he wants to get his licks in before the hearing today. If you thought yesterday’s NYTimes editorial was a head scratcher, take a look at Bray’s latest: Court to decide fate of file-swap software [pdf]

If the Supreme Court reaffirms this ruling, major media companies would lose a powerful weapon in their campaign to stamp out illegal Internet file-sharing, which costs the companies hundreds of millions of dollars in lost revenue.

[…] Wayne Rosso, former president of Grokster, is now chief executive of Mashboxx, a new company that plans to offer a file-sharing system that doesn’t violate copyright laws. Rosso predicted the court will try to find a compromise. ”You can’t expect the court to simply overrule Betamax,” Rosso said. ”I think it’s going be one of these opinions that will be — how should I say — eclectic, and it’ll take about a month to figure it out.”

Whatever the outcome, Rosso predicted a bleak future for makers of file-swapping software. Even if Grokster and StreamCast win, he said, the movie and music companies will pressure Congress to pass tough new legislation to restrict file-swapping.

”The free lunch is over. Close the buffet,” he said. ”To be honest, even when I was at Grokster, we knew it couldn’t go on.”

Slate’s AllofMP3 Profile

Barely Legal

It’s the dilemma of downloading: The guy in the next cubicle is using office bandwidth to download the new J.Lo album using Grokster. But then your mother sends you newspaper clippings of all of those nice-looking people getting arrested for file sharing. You want to have the records without having a record. So, there you are—caught between your greed and a guilt complex.

Until you find the silver bullet—the legal way to download music for free. Or at least almost for free. And almost legal: It’s called, and it’s the trendy, angst-free way to download copyrighted music. As the Supreme Court prepares to hear arguments tomorrow about the legality of Grokster, Aimster, and other file-sharing services, downloaders have been looking hopefully to as their only legitimate way to get 50 Cent for less than face value. is Russian, and its self-proclaimed quasi-legality stems from its claimed ownership of Russian music distribution rights.

Fighting Over Photographs

Johnson snapshots lead to tug of war [pdf] [via IPMemes]

In about 1935, Mississippi bluesman Robert Johnson mounted a stool at Memphis’s Hooks Brothers Photography studio, picked up his Gibson L-1 guitar, tipped his fedora and gazed into a camera lens.

Nearly four decades later, Mr. Johnson’s half-sister dug the resulting photo out of a cedar chest to show to a dogged blues historian who had tracked her down. The trunk she opened that afternoon in 1973 has since turned into a Pandora’s box.

That now-famous photograph and another one that was buried in the chest have become the subjects of a convoluted legal tug of war between the blues sleuth and relatives of the legendary musician, who died penniless and without a will in 1938. At stake: Who is the rightful owner of the iconic images, the only known photographs of the legendary musician, and who holds their lucrative copyrights?

The dispute is the final chapter in an epic legal struggle, now entering its 15th year, over Mr. Johnson’s legacy. Earlier, a dramatic trial elevated a sole heir from a handful of contenders, entitling a once-poor truck driver to share in the lucrative rights to Mr. Johnson’s music. Now the dispute over the photos is proving just as tangled, thrusting the blues historian and his business dealings into the spotlight.

“This has been an odyssey every bit as turbulent as the life of Robert Johnson himself,” says Connecticut lawyer Stephen Nevas, who represents two family members.

See also this Guiding Rights Blog entry

No Bluetooth for You!

TechDirt points, in outrage, to a Houston Chronicle printing of a AP Wire story, As cell phones go Hollywood, who’s in control? [pdf], asking when did Hollywood get to define what a cellphone can do?

Who put the gag in Motorola Corp.’s mouth just as it was going to unveil a new cell phone featuring the iTunes music download service from Apple Computer Inc.?

Motorola initially said it acted alone, then quickly pointed to Apple, citing the computer company’s long practice of never unveiling new products until they’re actually available to buy.

Many industry players, however, suspect that a wireless service provider intervened, essentially telling Motorola that, ‘I’ll be darned if I’ll sell your phones to my customers if it means they can buy songs through Apple and Motorola without giving me a piece of the pie.’

[…] In fact, Motorola also plays a role in a second drama involving these choppy uncharted waters.

Earlier this year, a class-action lawsuit was filed in three states involving a Motorola phone sold by Verizon Wireless. The v710 handset was equipped with a short-range wireless technology called Bluetooth and was configured to work with cordless headsets. Only one problem: Its file-transfer capabilities had been disabled.

The suit insinuates that Verizon Wireless is obliging subscribers to use its cell network if they wish, for example, to send a photo taken on a camera phone to a computer or another cell phone.

Verizon charges extra for such transmissions, while a direct Bluetooth transfer would cost nothing.

Verizon says the Bluetooth function was not disabled to prevent picture transfers but rather to satisfy the demands of media companies who don’t want their content shared with nonpaying customers.

Reed Hundt on the Dawn of Mass Internet

From the Code Blog, tracking the wikification of Lessig’s Code: 2005-3-20-A Note From Reed Hundt

I was chairman of the Federal Communications Commission (1993-97) when the Internet was, in a mass user sense, invented (1993-95, in my view). This is to report that a tiny group of bureaucrats did indeed sit in a room, or actually more than one room on more than one occasion, and decide that it was our great opportunity and duty to make sure that the Internet would be as nearly free as we could make it, that the telephone lines would be used by Internet service provider for as close to no cost as we could manage, that as many service providers would be able to start providing Net access as we could conceivably foster, and that we would encourage this new medium, as McLuhan predicted, to swallow all previous media and use them as content. And from 1994 to 2000 that is pretty much what happened. There are myriad specific rules that assisted in these ends coming about, which is not to say that technology and history were irrelevant. Indeed they may have been more significant causes of the various resulting effects. But it would be wrong to impute to government a lack of thought or even, in this case, foresight.

[…] Even the most extreme libertarians ought to acknowledge the historical significance of the G.I. Bill, the Marshall Plan, social security, and the atomic bomb — all world-changing events stemming from decisions by small groups in government made under conditions of limited knowledge and necessary compulsion to act. Similarly the Internet’s shape in its first decade stemmed in large part from an architecture of law designed to foster its disruptive impact and its rapid growth and its usage in particular by the young. It all could have been decided differently, as it was in most other countries and as it may well be decided differently in the broadband era. Because, you see, many of these rules have been changed in recent years, and whether all are reversed remains to be seen.

Yahoo! & CC

(Sorry, old news, but …) Larry Lessig points out that Yahoo! has set up a search portal directed toward content released under the Creative Commons licensing schemes.

This is exciting news for us. It confirms great news about Yahoo!. I met their senior management last October. They had, imho, precisely the right vision of a future net. Not a platform for delivering whatever, but instead a platform for communities to develop. With the acquisition of Flickr, the step into blogging and now this tool to locate the welcome mats spread across the net, that vision begins to turn real.

Austrian Experiment With Local Net TV News

Local net TV takes off in Austria

The people of Engerwitzdorf are filming, editing and producing their own regional news channel.

The channel covers local politics, sports, events and anything that residents want to film and are prepared to upload for others to watch on PCs.

The pilot has been so successful that Telekom Austria is now considering setting up other projects elsewhere.

Jurisdiction and Global Search Business

Growing Number of Lawsuits Could Hurt Google’s Ad Revenue

The Associated Press in New York and Kyodo News Agency in Tokyo have been negotiating with Google in connection with what they contend is its unauthorized use of material from the two news services.

Agence France-Presse, which had been talking to Google for almost six months in the same kind of dispute, sued the search engine in France in February and in the United States this month for $17.5 million in damages.

“The core issue is the same,” said Joshua Kaufman, A.F.P.’s lawyer in Washington. “Google is using A.F.P. pictures and stories without authorization in violation of copyright.”

The keyword lawsuits have been filed by companies ranging from the hotel chain Accor to LVMH Moët Hennessy Louis Vuitton, the luxury goods manufacturer, which in February won its case. Keyword advertising is particularly sensitive for luxury retailers because manufacturers of knockoffs and counterfeits could advertise alongside trademarked names.

That has quietly changed in France, where rival advertising has been eliminated on Google’s French Web site next to search results for prominent brand perfumes like Dior or Chanel. Yet similar advertising still surfaces with the same brand names on Google’s Web sites in Britain and Germany.

[…] According to Google’s Web site: “When we receive a complaint from a trademark owner, we will only investigate whether the advertisements at issue are using the trademarked term in ad text. If they are, we will require the advertiser to remove the trademarked term from the text of the ad and prevent the advertiser from using the trademarked term in ad text in the future.”