A Search Service Runs Awry of ©

A test of contributory infringement and search? U.S. Pursuing a Middleman in Web Piracy [pdf]

Richard O’Dwyer, an enterprising 24-year-old college student from northern England, has found himself in the middle of a fierce battle between two of America’s great exports: Hollywood and the Internet.

At issue is a Web site he started that helped visitors find American movies and television shows online. Although the site did not serve up pirated content, American authorities say it provided links to sites that did. The Obama administration is seeking to extradite Mr. O’Dwyer from Britain on criminal charges of copyright infringement. The possible punishment: 10 years in a United States prison.

The case is the government’s most far-reaching effort so far to crack down on foreigners suspected of breaking American laws. It is unusual because it goes after a middleman, who the authorities say made a fair amount of money by pointing people to pirated content. Mr. O’Dwyer’s backers say the prosecution goes too far, squelching his free-speech right to publish links to other Web sites.

ReDigi Causing Unrest

The used record store goes digital Music resale brings a digital showdown [pdf]

When Pete Brown got tired of his Don Henley album, he did what music fans have done for decades. He sold it.

But Brown’s version of the rock classic was digital. The 31-year-old liquor distributor from Indianapolis downloaded it from Apple’s iTunes music store and resold it on ReDigi.com, the Web’s first consignment shop for digital music, which a Cambridge start-up launched in October.

He earned a few bucks but may have broken the law in the process, though iTunes’s terms and conditions do not explicitly prohibit users from reselling their purchases. Capitol Records is suing ReDigi for allegedly violating copyright law and running a business “built on widespread, unauthorized copying of sound recordings.”

The case is making its way through federal court and is expected to determine the legitimacy of a secondary marketplace for these downloads. But it could also bring a landmark decision on how copyright law applies to digital albums, electronic books, and feature films that are downloaded on the Web, according to legal scholars.

A Few Updates

  • Radio Royalty Deal Offers Hope for Industrywide Pact [pdf]

    So why did Clear Channel change its position, breaking ranks with its powerful lobbying group, the National Association of Broadcasters?

    The answer apparently has nothing to do with politics; with Republicans expected to retain control of the House in this year’s elections, few in the industry predict a new Washington battle is likely. Rather, it has to do with digital music, and Clear Channel’s desire to reshape its business in anticipation of rapid changes in the marketplace.

    When the first webcasting laws were passed in the 1990s, labels and artists gained the right to performance royalties for online streams. But webcasters have long complained about the size and structure of these royalties, which are set by federal statute. The more people listen, the more the companies have to pay — unlike on radio, where stations pay a set percentage of revenue to music publishers. Pandora Media pays more than half its revenue in music royalties.

    For Clear Channel, digital royalties are a looming problem. Today, 98 percent of listening to its stations is through its 850 terrestrial radio stations, and 2 percent is online, the company said. But that is expected to change, which would leave Clear Channel and other broadcasters exposed to expanding royalty payments. To limit those expenses, Clear Channel struck its deal with Big Machine, bypassing the federal “penny rate” for a share of advertising revenue, both online and over the air.

  • Disruptions: For HBO, Still Beholden to a Cable Company [pdf]

    Yet Eric Kessler, co-president of HBO, must have a different calculator in his office. “At this time, the economics simply don’t support a standalone HBO Go,” he said. “We make our programming, including ‘Game of Thrones,’ available on numerous platforms for our subscribers and then on DVD and electronic sell-through for those choosing not to subscribe to a TV provider.”

    HBO told me that “Thrones” would be out on DVD in eight months, so I experimented with the piracy option, too. It took me all of 22 seconds to begin watching the latest episode through the illicit route of an online storage service and an illegal BitTorrent site. I get it. HBO has a great business model, and it will try to hang onto that model for as long as possible.

    But technology doesn’t wait. People keep finding new ways to get what they want.

    “It’s hard to stop piracy by creating laws, it’s better to ask why are people downloading these shows — that’s much more productive,” Mr. Van Der Sar said. “Downloading is already illegal. More laws are not going to help.”

A Nice Starting List

But I think there are lots of fine details missing: Unexceptionalism: A Primer by E. L. Doctorow [pdf]

TO achieve unexceptionalism, the political ideal that would render the United States indistinguishable from the impoverished, traditionally undemocratic, brutal or catatonic countries of the world, do the following:

PHASE ONE

If you’re a justice of the Supreme Court, ignore the first sacrament of a democracy and suspend the counting of ballots in a presidential election. Appoint the candidate of your choice as president.

If you’re the newly anointed president, react to a terrorist attack by invading a nonterrorist country. Despite the loss or disablement of untold numbers of lives, manage your war so that its results will be indeterminate.

Using the state of war as justification, order secret surveillance of American citizens, data mine their phone calls and e-mail, make business, medical and public library records available to government agencies, perform illegal warrantless searches of homes and offices. […]

Some Things To Read

  • How Modding Changes Art [Pajiba]

    Take the recent furor over Mass Effect 3. When a movie trilogy has an ending that pisses off a bunch of fans, their blood boils and the Internet ripples with a flood of foaming fury. But that’s it. Maybe it gets Mysterious Science Theatre treatments, maybe some few enterprising fans make fan cuts once the DVD gets released. What you don’t see is people writing their own end to the movie, filming it, and releasing it such that it can be integrated with the original.

    There’s a sort of community ownership going on that transcends copyright. It’s individuals saying that this piece of art belongs to the community and therefore the community can change it, tweak it, improve upon it. It’s a democratization of art that is only possible in a given field once the technology is such that anyone can do it on their own.

  • Carriers Warn of Crisis in Mobile Spectrum — as David Reed says, “Yeah, right.”

    Arguing that the nation could run out of spectrum is like saying it was going to run out of a color, says David P. Reed, one of the original architects of the Internet and a former professor of computer science and engineering at the Massachusetts Institute of Technology. He says electromagnetic spectrum is not finite.

    Mr. Reed, who is now senior vice president at SAP Labs, a company that provides business software, explained that there are in fact newer technologies for transmitting and receiving signals so that they do not interfere with one another. That means separating the frequency bands would not be required — in other words, everybody could share spectrum and not run out.

    The reason spectrum is treated as though it were finite is because it is still divided by frequencies — an outdated understanding of how radio technology works, he said. “I hate to even use the word ‘spectrum,’ ” he said. “It’s a 1920s understanding of how radio communications work.”

  • Let the Nanotargeting Begin — for some privacy nightmares:

    Advances in the speed of computers and constantly improved software have created, in just over a decade, the development of a new political industry, nanotargeting — microtargeting to the nth degree. There has been excellent reporting on the innovative work of this industry, along with debunking of excessive claims.

    Parsing data gives politicians and their campaigns ways to identify and communicate with segments of the electorate that would have been out of reach not long ago.

Pot, Kettle, Black

Cary Sherman is going to convince you, no matter what it takes — but this is a real tour de force: What Wikipedia Won’t Tell You [pdf]

Misinformation may be a dirty trick, but it works. Consider, for example, the claim that SOPA and PIPA were “censorship,” a loaded and inflammatory term designed to evoke images of crackdowns on pro-democracy Web sites by China or Iran. Since when is it censorship to shut down an operation that an American court, upon a thorough review of evidence, has determined to be illegal? When the police close down a store fencing stolen goods, it isn’t censorship, but when those stolen goods are fenced online, it is? Wikipedia, Google and others manufactured controversy by unfairly equating SOPA with censorship. They also argued misleadingly that the bills would have required Web sites to “monitor” what their users upload, conveniently ignoring provisions like the “No Duty to Monitor” section.

The hyperbolic mistruths, presented on the home pages of some of the world’s most popular Web sites, amounted to an abuse of trust and a misuse of power. When Wikipedia and Google purport to be neutral sources of information, but then exploit their stature to present information that is not only not neutral but affirmatively incomplete and misleading, they are duping their users into accepting as truth what are merely self-serving political declarations.

Later: Looks like The Times is going to work this — In Piracy Debate, Deciding if the Sky Is Falling [pdf]

Nice!

You so rarely see it stated so blatantly — “creators” at work! With ‘Porgy’ on Broadway, Gershwin Heirs Flex Their Rights [pdf]

But estate decision making has been most controversial in the case of “Porgy and Bess.” The Gershwin heirs — chiefly nephews and grand-nephews of George and Ira, who had no children of their own — sought a Broadway-suitable “Porgy” to license to other musical producers worldwide with the hopes of earning millions of dollars before the right to the famous songs expire in 2030.

With that in mind they encouraged the trimming of the opera nearly by half, and approved some updating, including a reconciliation scene at the end. The goat-pulled cart of the disabled Porgy is out; a cane and leg braces are in. If all goes well, they may pursue a movie.

“Our responsibilities are to not have ‘Porgy and Bess’ stuck in an attic, to open up the property to younger generations, and to make money for the families,” said Jonathan Keidan, a 38-year-old digital media executive whose grandmother was George and Ira’s sister and who is now a trustee of George’s estate.

An (Uncommon) Elegant Solution

I bring this to your attention not just because I really enjoy David Malki!’s Wondermark, but because, sometimes, there’s a better way — Calendars: SOLD OUT. Engineering: STILL LOUD.

A few people have written to tell me that they saw a shirt with this same slogan in the Signals catalog, or on their website. They are right to think that it was done without my knowledge or approval — I’d never let a design this ugly go out: […]

This is a tricky situation — legally, you cannot copyright a short phrase or slogan. (That’s why you can see stupid slogans like “FBI: Female Body Inspector” on fifty million different T-shirts in fifty million different tourist shops.) A design is copyrightable, but in this case they only used the words. You can trademark a slogan, but that costs a fair amount of money, and I hadn’t done that. (Maybe I should.)

[…] The knee-jerk response is “Cease and desist! Sue! Call a lawyer!” This implies that (a) the issue cannot be solved through more amicable means, and (b) I have a lot of time and money to throw at this kind of problem. The latter is not true, and I like to at least allow for the chance that the former isn’t either. There’s a lot of double negatives in that sequence, so I’ll restate: Being aggressive puts people on the defensive. Being friendly gets people to help you.

Also, always give the party in the wrong the ability to back off gracefully.

Read it all for a nice story — and a welcome contrast to this SOPA bullshit: Media and Entertainment Companies Add Support to Proposed Antipiracy Legislation.

Rebecca MacKinnon on the Protect IP Act

Firewall Law Could Infringe on Free Speech [pdf]

China operates the world’s most elaborate and opaque system of Internet censorship. But Congress, under pressure to take action against the theft of intellectual property, is considering misguided legislation that would strengthen China’s Great Firewall and even bring major features of it to America.

The legislation — the Protect IP Act, which has been introduced in the Senate, and a House version known as the Stop Online Piracy Act — have an impressive array of well-financed backers […]. The bills aim not to censor political or religious speech as China does, but to protect American intellectual property. Alarm at the infringement of creative works through the Internet is justifiable. The solutions offered by the legislation, however, threaten to inflict collateral damage on democratic discourse and dissent both at home and around the world.

Wednesday’s House Judiciary Committee hearing: Hearing on: H.R. 3261, the “Stop Online Piracy Act

A Little Identity Contretemps

Rushdie Wins Facebook Fight Over Identity [pdf]

As the Internet becomes the place for all kinds of transactions, from buying shoes to overthrowing despots, an increasingly vital debate is emerging over how people represent and reveal themselves on the Web sites they visit. One side envisions a system in which you use a sort of digital passport, bearing your real name and issued by a company like Facebook, to travel across the Internet. Another side believes in the right to don different hats — and sometimes masks — so you can consume and express what you want, without fear of offline repercussions.

The argument over pseudonyms — known online as the “nym wars” — goes to the heart of how the Internet might be organized in the future. Major Internet companies like Google, Facebook and Twitter have a valuable stake in this debate — and, in some cases, vastly different corporate philosophies on the issue that signal their own ambitions.