September 28, 2003
Paul Krugman and the Public Domain

Paul Krugman gave a talk Friday at the JSchool about being a columnist on international affairs and economics (the link to his other second talk at Haas on video is here, on the War in Iraq and the US Economy).

Krugman talked about how he became a columnist for the NY Times (he started with some less academic pieces, got published in Slate and Fortune), and what they asked for, which was commentary on business and economics. He said that in the beginning, he knew that every administration fudged the truth, or slated or spun things their way, but as he researched over time, he saw that the current administration out and out lies about many things, and much of his discovery of these lies occurs because of his work with public domain materials and information.

In writing his column, he does not use inside players or "unnamed sources" or even the "scene" in Washington to inform his work directly because he doesn't know any of these people and doesn't want to cultivate these kinds of sources. Instead, he goes to places like the Office of Management and Budget (or the California equivalent in prep for his recent analysis of the California Energy scam/Enron), and talks with economists and academics, and gets public information in the public domain. Then he does some analysis, or calculations, or reading of foreign press or whatever other materials are necessary to understand the information he is working with and then writes his column.

While this isn't the usual type of public domain use the biplog addresses, it was a nice reminder of the kind of uses the public domain has, that are very important for citizen analysis of public works and public officials. Thank goodness information of every sort produced by our government are required to have no copyright and to be a part of the public domain.

Posted by Mary Hodder at 06:15 PM | Permalink
Confessions of a Spam King

Here. Folks like this will extrapolate spamming genius to game compulsory license systems. I think paying close attention to spammers' methods is important in trying to figure out how to make a system that will prevent others from scamming a CL system. Via Lawmeme.

Posted by Mary Hodder at 11:35 AM | Permalink
September 25, 2003
Intel Sponsors One Free Wifi Day

Today! Look here, or here for Berkeley locations (they are not all Starbucks thank goodness - I can't stand the coffee there - you'd think with all that dough, they could figure out how to make a good cuppa coffee; maybe they should give Illy a call...), for info and maps of free wifi access.

Posted by Mary Hodder at 07:29 AM | Permalink
Thank Goodness for People Like Brewster Kahle

Yesterday he gave a talk at the Tech Policy class, mentioned here before, on wifi, the Internet Archive and the policy issues they face as they work on their projects. Those projects include making wifi access from 17 rooftop nodes around SF (I'm hoping Berkeley is next!!), scanning a million books, sending out roving bookmobiles where public domain books can be downloaded and printed on the spot in places like India, Egypt and Uganda, and archives of books, audio, moving images, broadcast, software, and the web. His goals for the archive are preservation and access. They've also given a copy of everything they are archiving to the Library in Alexandria, which to date is 100 terabytes. He also said he believes we have a "right to remember" and quoted Michael Lesk who has said that he is worried we will lose the 20th Century. (The 19th is small, and out of copyright, the 21st is digital so we can wait out the 170 years of copyright protection, but the 20th is both under copyright and analog.)

Some important societal questions he asked, for digital libraries:
• Should libraries take over running digital projects, after the researchers have finished and want to move on to their next research project (example: Cite Seer, which is a science citation index, doing things like making footnotes linkable in scientific papers and allowing reverse lookups to see where all the cites are that link to a particular paper, and was developed through NEC, and then UPenn continued it), and it needs to be maintained?

• Storage, for now isn't a problem but bandwidth may be the thing that holds us back from progressing on the internet. How do we manage to get more bandwidth and good transfer methods for people working with large files?

Policy issues the archive faces:
• Copyright regime that prevents them from saving some materials, or makes it very difficult. Example, with software, they might have to reverse engineer old code, just to save it (on 5.5" floppies, no less) and yet, this is prohibited under the DMCA. He is waiting to hear about an exemption request (speech) made to the Library of Congress at their hearings this past spring. (These requests are made every three years for things like research...).
• Get better spectrum for wifi - 2.4ghz sucks. It's a piece of the radio spectrum; above FM, and is used for home handsets and garage door openers. All the rest of the spectrum is privately owned or military.
• Would like to see a "copyright free zone" where, maybe in Hawaii, or the Presidio, for example, people could experiment with copyrighted artifacts, to learn, make art, and to do social experiments.
• Would like to see libraries be able to assert "pre-emptive archiving" so that if a company is going down, the data isn't lost. Example, when Disney shut down Infoseek.
• Would like to see a "safe harbor" for research data, so that companies and institutions don't have to destroy information to keep it out of lawyers hands for fear of a lawsuit. Example, companies that destroy email or access logs, that might be used for research, but are also subject to subpoena.
• IP address and access logs retention vs. privacy. In order to protect privacy, he would like to see logs purged after 30 days.

I find this last point frustrating. I know he is right, and yet, it also seems like some researcher, playing around with those logs, might discover a way to make the bandwidth or the relaying of information more efficient, or we might in future understand more about people in a sociological way. And yet, because the data is used now for destructive purposes, we have no choice but to destroy it to maintain people's privacy.

Posted by Mary Hodder at 07:08 AM | Permalink | Comments (1)
September 23, 2003
RIAA Withdraws Suit - Ooops

Chris Gaither/The Boston Globe report in tomorrow's paper that the Recording industry withdraws suit because of mistaken identity.

The recording industry has withdrawn a lawsuit against a Newbury woman because it falsely accused her of illegally sharing music -- possibly the first case of mistaken identity in the battle against Internet file-traders.

The lawsuit claimed that Ward had illegally shared more than 2,000 songs through Kazaa and threatened to hold her liable for up to $150,000 for each song. The plaintiffs were Sony Music, BMG, Virgin, Interscope, Atlantic, Warner Brothers, and Arista.

Among the songs she was accused of sharing: ''I'm a Thug,'' by the rapper Trick Daddy.

But Ward, 66, is a ''computer neophyte'' who never installed file-sharing software, let alone downloaded hard-core rap about baggy jeans and gold teeth, according to letters sent to the recording industry's agents by her lawyer, Jeffrey Beeler.

She also has no kids. And she uses a Mac, but KaZaa only runs on Windows.

Beeler complained to the RIAA, demanding an apology and ''dismissal with prejudice'' of the lawsuit, which would prohibit future lawsuits against her. Foley Hoag, the Boston firm representing the record labels, on Friday dropped the case, but without prejudice.

''Please note, however, that we will continue our review of the issues you raised and we reserve the right to refile the complaint against Mrs. Ward if and when circumstances warrant,'' Colin J. Zick, the Foley Hoag lawyer, wrote to Beeler.

Jonathan Zittrain, an associate professor of Internet law at Harvard Law School, said the dismissal shows that the record companies may find it tough to prevail if their lawsuits go to court. Their legal strategy assumes that most defendants will settle rather than fight, and the lawsuits are so damaging to their public image that they cannot afford protracted legal battles with alleged file-swappers, he added.

''This is a very high-stakes strategy for the record companies,'' he said. ''It's either going to work in the short term, or they're going to have to pull the plug on it.''

UPDATE: 9/24/03 /. discusses.

UPDATE: 9/25/03 NYTimes on this case.

Posted by Mary Hodder at 11:58 PM | Permalink
Sooner or Later... The RIAA Was Going to Sue Someone Who Was Innocent

Late this afternoon, Fred Von Lohmann of EFF told a Boalt Hall group that tomorrow there will be an article on the front page of the Boston Globe about the RIAA suing someone who did not pirate music, and that person went to the press with it. (This is one of the original 261.) I couldn't attend, but one of my classmates called me to report this at the finish of the talk.

When it shows up on the BG site, I'll post it.

Update 9/29/03: Brian Carver attended boty events, and posts on Fred's second talk which I missed.

Posted by Mary Hodder at 07:26 PM | Permalink
File Sharing 411

Fred Von Lohmann of EFF gave a talk at Berkeley this afternoon on file sharing, both the practical realities and the ways EFF and the RIAA view the issues. He said EFF is a membership organization and he "...works for tips and gives all his intellectual property away for free...". Major points of interest:
• People on networks don't understand that those targeted are "file sharers" and this means that they have "file sharing" turned on (turn it off in the preferences, or take the files out of your shared files folder!).
• "Avril Levine" appears the be the worst file the have, at least in looking at the lawsuits files and what file sharers have on their harddrives, for provoking a suit.
• There isn't right now a good way to find downloaders, who don't fileshare, because they way people are typically found is through a search of a name, word, topic, and their shared files come up.
• The RIAA is typically copying the file list of a sharer, but also testing the download of 10 - 20 files, to make sure they are the work as titled (people could change the title to promote their own work to get more airplay - in other words, your local garage band could try to get play by renaming their songs, Avril Levine).
• Lawsuit settlements so far are typically $2-5 k, depending on their sympathy with the media and how many files they share.
• Many people seem to be moving into the Darknet, private file sharing networks, password protected and much harder for the RIAA to find you, unless they get a person to narc you out.
• UCBerkeley seems to be controlling sharing by having a bandwidth limit, as are many other schools.
• The Answer is not to sue, but to find a solution, like the webcasting solution, which pays artists and uses this great new technology. "File sharing kicks ass over FM radio. KALX excepted."
• Every download is not a lost sale. The CD and music industry are doing badly because of the recession, the end of the CD replacement of vinyl boom, less releases of new titles than in past years, many more entertainment options with limited dollars to chase, but filesharing is involved in the downturn in profits. Unclear how much. Also, don't really know how many file sharers buy more, or less, CDs.
• Answer is to end lawsuits, end ban on new technologies, get artists compensated, and let people listed to music in this new great way.

His second talk is today at 4:45pm at Boalt 115. A bit more lawyerly, but if you want to listen to what he has to say, you should go!

UPDATE: The one disappointing thing Fred said today, which I didn't have time to address earlier, was that any, ANY, file sharing of unauthorized work is illegal. I disagree. If I make a friend a mixed cd of my tracks from lawfully purchased CDs, I consider that fair use and legal. Fred, as I recall, (but I may be mistaken), used to have that broader opinion. But even if he didn't have that opinion in the past, he didn't so forcefully state the no-unauthorized-filesharing position then. So I was a little taken aback by the forcefulness of it today. But I suppose in order to have one consistent view point coming from EFF, and get people to take them seriously on their proposed solutions, they probably have to go that route now.

Bummer, because they concede a kind of fair use that I think is our right and is a really nice social aspect of sharing culture in our society. It's too bad things have gotten to this very rigid position.

Update 9/29/03: Brian Carver attended boty events, and posts on Fred's second talk which I missed.

Posted by Mary Hodder at 02:07 PM | Permalink | Comments (3)
Darknet in Time

Anita Hamilton/Time has this: Playing in the Darknet.

But darknets are not just for digital music files. Carving out a bit of privacy online has wide appeal; students, community groups and even political dissidents can use these hidden networks to share projects, papers and information. One part of the allure is anonymity; the other is exclusivity. Since participation is limited, file searches don't turn up a lot of junk or pornography. Darknets offer the convenience of the Web without a lot of the bad stuff.

The Darknet as she refers to it here is about private file sharing networks, although some researchers wrote about it last year and included any kind of file sharing as part of their definition. However, I first heard about the Darknet in a lecture at SIMS about two years ago, where it was used to refer to anything that was not listed with search engines like Google, because it was somewhat hidden. But my sense is in recent discussions and in media reports, the Darknet now means private file sharing networks.

Posted by Mary Hodder at 08:14 AM | Permalink
September 22, 2003
Love May Fade, But Trademark is Forever

Copyright, in comparison, has an enddate, even if it's way past the author's death. But Trademark? It's like a Tiffany Diamond®. The love may be gone but you'll always have that diamond. And wouldn't you know, the Dewey Decimal system is just as sexy, reliable and oh so monetizing. What? Dewey's like a Tiffany Diamond®? Why yes, and possibly better. Because Dewey just keeps on paying.

Melvil Dewey created the system in 1873, and the Online Computer Library Center (who has owned it since 1988) licenses it to 95% of the school and public libraries in the US (makin' Microsoft proud!) for a minimum of $500. All those librarians over the past 130 years have contributed to it, making the system better and adding new categories, but the OCLC, a non-profit keeps the dough. And they have absolutely no incentive to put it into the public domain.

So, boys and girls, today's Intellectual Property parable is about The Library Hotel, which overlooks the NY Public Library. The Library Hotel is based on the theme of the Dewey Decimal System, so you know, floor eight is about erotic lit, seven is performing arts, just like those in the 800 and 700 series in the library. Anyway, the hotel used the Dewey system for their theme, and well, now lawyers are involved, suing for Trademark infringement.

"I would term it straight-out trademark infringement," said Joseph R. Dreitler, a trademark lawyer with the Columbus office of Jones Day, which represents the Online center.

"A person who came to their Web site and looked at the way (the hotel) is promoted and marketed would think they were passing themselves off as connected with the owner of the Dewey Decimal Classification system."

God forbid! But then again, I'm not so sure about that. I can certainly see the difference between the Dewey Decimal system, used in libraries, and the hotel, with pictures of lovely beds and bedding on their website. That I know of, no actual library is offering me expensive sheets and towels to read their books. But just the same, don't mess with that trademark!

Just do as momma told you, go out and trademark something everyone will use, depend on, and bonus! update for you, and voila! You and dozens of generations of your progeny can kick back and enjoy. And remember, copyright's a loser because it ends. Okay, not in your lifetime, but three or so generations later. But trademark is your ticket to endlessly generated wealth! It's the inheritance that just keeps on giving!

/. discusses.

Update: The NYTimes on this story.

Posted by Mary Hodder at 07:03 AM | Permalink | Comments (2)
September 20, 2003
Berkman Center/G2 on Digital Media in Cyberspace: The Legislation and Business Effects

This event held Thursday on digital media issues is a result of their collaboration on piracy and copyright and "Five Scenarios for Digital Media in a Post-Napster World." There have been several posts on this topic, from Derek, Matt and John Palfrey, who all attended, as well as Theo Emery/AP, Business Week, The Boston Globe and Martin LaMonica/cNet.

The conference presented five scenarios for moving forward. While reading the descriptions, I had the sense that although they spoke of five interested parties, creators, publishers, technology companies, ISPs, and the public, the proposal was written to favor the publishers, tech companies, and ISPs. Part of that is the language used. The proposal refers to the public as consumers, which I think minimizes the role of the public in these discussions. The public isn't just the people who will purchase the products of the creative industry (regularly referred to as "content," another word I have issues with). Theoretically, copyright serves the public. This idea is contained in both the Constitution and the Copyright Act. Copyright is a tool to increase creative productivity, because more creation is in the public's interest. I also think it's important to remember that the line between the public and the creators is a thin one. While they have different interests, people move fluidly between the two categories, which implies to me that the distinction isn't as great as it might appear.

...The five models are no change, property rights, tech defense, public utilities, and compulsory licenses, which were regularly referred to as "alternative compensation." I'm not sure why the other name was used. Perhaps alternative compensation sounds less scary than compulsory licensing.

Cary Sherman, President of the RIAA, and Fritz Attaway, VP of Government Relations and General Council for the MPAA didn't show, as they apparently feared travel issues because of the hurricane. This brings up a minor point. The Business Week/cNet piece has this:

In an interview with CNET News.com, RIAA President Cary Sherman said that the suits were intended to raise the awareness of the legal dangers in sharing music online and to change the prevailing culture of file swappers.

In the context of the article, describing the various discussions at the Berkman event, quoting others and then having this paragraph in the middle, it sounded to me like Sherman was there. Only from Derek's and Matt's posts was it explicit that he did not participate. I'm sure LaMonica meant to convey that Sherman wasn't there and the interview was separate from the conference, but if you didn't know he wasn't there, the article leads to the conclusion that he participated and did a special interview to the side with LaMonica.

Posted by Mary Hodder at 06:02 PM | Permalink
Can the Record Biz Survive?

The New Yorker has a reprinting of John Seabrook's article: The Money Note: Can the record business survive? because he is part of the New Yorker Festival they are holding this weekend in NYC. Today at 2pm EST he moderates a panel on this topic as part of their event series. Looks like tickets are still available if you want to go. Better hurry. You've got a little over an hour to get there.

Around the globe, the record business is sixteen per cent smaller than it was in 2000. Record labels blame the fans, for lacking the long-term loyalty to pop acts which record buyers used to have, and for engaging in wholesale "piracy" of music, either by copying CDs or by downloading music illegally from the Internet.

...Five global music companies control more than eighty-five per cent of the record business. (The remaining fifteen per cent is divided among some ten thousand independent labels.) Universal Music Group, which is owned by Vivendi Universal, is the dominant player among the majors; then comes the Warner Music Group, a division of AOL Time Warner; Sony Music Entertainment; the Bertelsmann Music Group (BMG); and the EMI Group. From the early seventies to the mid-nineties, Warner was the leading company in the record industry, but by the end of 2002, with a sixteen-per-cent share of the domestic market, the company had fallen behind Universal, which had a twenty-nine-per-cent share.

...Whether or not the record business figures out how to make money from MP3s, the format is here to stay. Just as CDs replaced vinyl, so will MP3s replace CDs. But, whereas CDs made the record business extraordinarily lucrative, MP3s are making it extraordinarily painful -- a gigantic karmic correction that may lead to a bigger music business one day, although not before things get worse. Daniel Strickland, a twenty-three-year-old student at the University of Virginia, told me recently, "Maybe it's because I'm in college and I have an eighteen-year-old sister and a ten-year-old brother, but, let me tell you, nobody I know buys CDs anymore. My sister -- she just gets on her computer, and she knows only two things, file sharing and instant messaging. She and friends go online, and one instant-messages the other, and says, 'Oh, there's this cool song I just found,' and they go and download it, play it, and instant-message back about it. My brother has never even seen a CD -- except for the ones my sister burns."

Posted by Mary Hodder at 09:48 AM | Permalink | Comments (1)
September 19, 2003
File-Sharing 411, this Tuesday!

Boalt.org just sent this notice out:

Join us for File-Sharing 411 this coming Tuesday! Please forward this
message to people, groups, or departments who might find it of
interest.

... ... ... . .

Boalt.org, the Creative Law Society, and the present:

FILE-SHARING 411
A day of information and discussion about P2P, the record industry's lawsuits, and the future of digital music

Tuesday, September 23, 2003 at UC-Berkeley

Featuring Fred von Lohmann, Senior Intellectual Property Attorney, the Electronic Frontier Foundation

12:30 - 1:30 pm
File-Sharing 411
166 Barrows Hall
With nearly 300 lawsuits filed by the RIAA and one UC-Berkeley student already served, what does the current controversy over music file-sharing mean to Internet users and the campus community? Join us for a talk by EFF's Fred von Lohmann, Q&A, and pizza.

4:45 - 5:45 pm
File-Sharing: Legal Issues and Alternatives
115 Boalt Hall
The future of digital music distribution is hotly contested, with file-sharing technology putting new pressures on copyright law. Here Mr. von Lohmann, counsel to StreamCast Networks in the MGM v. Grokster case currently on appeal, will discuss the P2P court battles, the debate over alternative legal models, and policy concerns.

* Boalt.org is the student group at Boalt Hall School of Law devoted to promoting the public interest in law and technology.
* The Creative Law Society aims to integrate innovative thinking into legal education at Boalt and develop lawyers who serve creative interests.
* The Electronic Frontier Foundation is a digital rights law firm and advocacy group leading the charge to inform the public about digital music issues and explore legal alternatives for music distribution.

Posted by Mary Hodder at 04:09 PM | Permalink
Despite Law Suits, People Continue File Sharing

The Amy Harmon and John Schwartz/NYTimes report that people are continuing to file share on P2P networks, despite the threat of lawsuits.

"Law, technology and ethics are not in sync right now," said Senator Norm Coleman, a Minnesota Republican who has called a hearing on the subject for later this month. "I presume these lawsuits are having some impact, but they're not solving the problem."

Soli Shin of Manhattan is not waiting for lawmakers to act. She gave some thought to the ethics of file sharing after hearing of the lawsuits and took her own library of 1,094 songs offline, because she knew they were aimed at people who "share" their music files with others. But she saw no reason to stop getting new music for herself.

"It's really a great convenience," Ms. Shin, 13, said. "If I like what I download maybe I'll buy it."

According to The Times/CBS News poll, adults under 30 are more inclined to consider music sharing over the Internet to be acceptable: 29 percent of them say the practice is acceptable at all times, compared with 9 percent of people older than that.

Note the example of the "adult" under 30 who is choosing to sample music to see she if she wants to buy it or not, and is deciding after some thought to remove her shared files while still maintaining her downloading habits. I would say she is a perfect candidate for the Darknet, and is very much in sync with many of her compatriots who are using P2P networks. Remember, it won't be very long until she is voting in elections, but right now she's voting with her dollars for a new .

... instead of significantly damping enthusiasm for file sharing, the record industry's lawsuits appear to be spurring increasingly sharp debates about how the balance between the rights of copyright holders and those of copyright users should be redefined for a digital age.

I keep hearing these debates all over campus, at every gathering, over a wide political spectrum of friends and colleagues who are everything from Fox news conservative to radical liberals. The music industry really needs to address these fundamental issues over copyright, and their need to control every single unit of content, verses just suing kids for their life savings. The more they sue, the more people question. The RIAA seems to be awaking a beast they don't really want to contend with for the sake of their old business model, that's dead and gone anyway.

This chart on file sharing shows 45% of the people believe sharing content between friends and family is okay: FileshareChart.jpeg

Posted by Mary Hodder at 04:02 PM | Permalink | Comments (9)
September 18, 2003
Hollywood and Piracy

Ken Womack/The Morning News with a Dear Hollywood letter (I wish they were all this good):

Dear Hollywood:

It seems like lately you've been out of touch. I know that you've been busy, of course, what with your summer blockbuster season and all. Heck, it must take a lot of time and energy to promote all those movies! By the way, what happened to Gigli? It only came out a few weeks ago, and yet it no longer seems to be playing at my local Cineplex. ....

... there was also a commercial promoting you, Hollywood. Yeah, I was surprised, too. The commercial features a set painter named David Goldstein. Apparently, he's worked on films like Dick Tracy, Beverly Hills Cop, and Father of the Bride. What a résumé! Did you know that he even met his future wife on the set of The Big Chill? (By the way, David, is that a two-toned beard? Makeup!)

In any event, it turns out that people like David -- the construction, sound, and lighting personnel -- are worried about the effects of piracy on the movie industry. Piracy sure has turned the world of popular music upside down. And you've got to reckon that -- sooner or later -- those rascals on the Internet will figure out how to pirate DVDs at a much faster rate. And when that happens -- well, let's just say that it will no longer take four hours to download Ishtar… ....

Which brings me to why I'm really writing this letter: Why shouldn't I feel like pirating movies or buying contraband DVDs on the Internet? You've been obviously lining your pockets at my expense for decades, and now you're threatening to fire some poor guy so that you can make me feel guilty. Who do you think you are?

He makes a very good point about piracy and customer relationships (As does Katie Hafner/NYTimes today. Remember, those kids will be voting in a few years!). Pointer from Choire/Gawker.

Posted by Mary Hodder at 08:04 AM | Permalink
Senate Hearings Yesterday on DRM and Digital TV Equipment

Ed Felten has posted his testimony (pdf) and has some thoughts about the process of informing senators about technology in a committee hearing:

If you haven't been to such a hearing, you might be surprised at some of what happens. For one thing, unlike the hearings you see on TV, some of the Senators are absent, and some come and go during the hearing. (A Senator is on multiple committees, and various hearings are going on simultaneously, along with other business.)

You would probably be disappointed as well at the quality of the debate. It's not that debate doesn't occur; and it's not that the issues at hand aren't important. But much time is wasted on posturing that is irrelevant to the nominal topic of the hearing and seems designed only to show that one side is purer of heart than the other. An example was the repeated references to porn on P2P networks. This had no connection to the hearing's topic, and nobody even bothered to connect it to the topic. And none of the witnesses had any connection with P2P technology.

And he was seated next to Jack Valenti, "eternal head of the MPAA." Read the whole thing; it's a terrific window into the process that few people get to see.

Posted by Mary Hodder at 07:08 AM | Permalink
September 17, 2003
Orson Scott Card on MP3 and Music

Frank points to this terrific article by one of my favorite science fiction writers (I loved the Alvin series!). He's a great writer and this piece is on his website, but is also published as what looks like a weekly column in The Rhinoceros Times, a newspaper from Greenboro and Charlotte, NC. Great stuff:

MP3s Are Not the Devil

Since every penny I earn depends on copyright protection, I'm all in favor of reasonable laws to do the job.

But there's something kind of sad about the recording industry's indecent passion to punish the "criminals" who are violating their rights.

...

So it's pretty hilarious to hear record company executives and movie studio executives get all righteous about copyright. They've been manipulating copyright laws for years, and all the manipulations were designed to steal everything they could from the actual creators of the work.

...

And rental videotapes! That was the end of the world!

When the studios finally stopped charging ninety bucks for a videotape, they discovered that the videotape (and now DVD) aftermarket was often bigger than the original theatrical release.

The internet is similar, but not identical, to these situations.

First, most of the people who are getting those free MP3s would not be buying the CDs anyway. They're doing this in order to get far more music than they can actually afford. That means that if they weren't sharing MP3s online, they would simply have less music -- or share CDs hand to hand. It does not mean that they would have bought CDs to get the tunes they're downloading from Napster-like sharing schemes.

That's why I laugh at their estimates of "lost sales."

Check it out! I can't wait for part two of this series.

Posted by Mary Hodder at 11:25 PM | Permalink
And in Other News, The Senate Gets Crunchy Over the FCC

With their politics, that is. They voted to stop the new FCC rules from taking effect....from Stephen Labaton/NYTimes.

Speaking of Mr. Powell, Senator Byron L. Dorgan, the North Dakota Democrat and chief sponsor of the resolution, said: "I think he has made a horrible mistake. His leadership at the commission has led the commission to cave in to the special interests as quickly and as thoroughly as I've ever seen."

Mr. Dorgan and a large group of other senators, ranging from Tom Daschle of South Dakota, the minority leader, to Trent Lott of Mississippi, the former Republican leader, vowed to continue to take steps to repeal the media rules by attaching amendments to other measures headed for floor action.

Even the NYTimes, as a company, has lobbied to stop the new rules.

Keeping multi-content distribution channels flowing, the Senate is responding to the people, who don't want the aggregation of media markets to go beyond the current 35%, to 45%, which the new rules allow. Although, cynically, I suppose, I think 35% doesn't exactly lead to a big flow of different voices, but it's better than 45%.

Course, Bill Safire says the House bill will fail.

And speaking of mergers, Time Warner is planning to drop AOL from it's name (David A. Vise/WDCPost). Oh well.

Posted by Mary Hodder at 07:15 AM | Permalink
September 16, 2003
Hey, It's Dark In There!

Just in case you missed it, from John Schwartz/NYTimes, Lorrie Cranor/ATT's study on how most movies pirated are an inside job from Hollywood. Oh my!

Our conclusion is that the distributors really need to take a hard look at their own internal processes and look at how they can stop the insider leaks of their movies" before taking measures that might hamstring consumers' technologies and rights, said Lorrie Cranor, a researcher at AT&T Labs and lead author of the study.

Course, Saul Hansell/NYTimes report that the Crackdown May Send Music Traders Into Software Underground. You know, like the Darknet, where instead of finding a legal answer to sharing files, and instead of working on our faulty copyright system that is tilted too much in favor of big copyright companies, the problem in essence disappears because we can't find it in the dark.

Posted by Mary Hodder at 11:29 PM | Permalink
Verizon Appeal Will be Heard Today

and SBC says it won't name names in file sharing cases (Seth Schiesel/NYTimes). "We are opposing these subpoenas because under the R.I.A.A.'s interpretation, they are a threat to consumer privacy and safety." (from SBC spokesman, Selim Bingol) They are the only provider holding out.

"We are going to challenge every single one of these that they file until we are told that our position is wrong as a matter of law," James D. Ellis, general counsel for SBC, said yesterday in a telephone interview.

Good for them. The subpoena process is a big problem as specified under the DMCA.

Ed Felten is going to be testifying tomorrow morning in a Senate Commerce Committee Hearing about both the subpoena process, as well as the impact of requiring the building of anti-copy protections into technology.

Catch the webcast of the hearings at 10am Wednesday!

Update 9/17/03: CDT has their hearing testimony up about the subpoenas....

Posted by Mary Hodder at 07:38 AM | Permalink | Comments (1)
September 14, 2003
Copying, Cutting and Pasting, and Synthesizing

Here's a thought, what if because of the way the internet works, and file sharing of content, the music industry morphs into something that essentially becomes a loss-leader, an advertising and marketing machine, into something that instead of recording bands, finds bands with already recorded materials on their home recording computer systems, and so the industry simply acts as a promoter, giving away low-res recorded teaser mp3 music? And maybe those giveaways come from sites that sell advertising, or maybe low fees ($.25 an mp3) get listeners out of having to submit to the ads? What if the real money to be made was from concert tickets ($175), tShirts ($30), cd's with music videos and ephemera ($10)? Artists don't see royalties from record companies anyway, and so what if, in getting artists paid, the audience just keeps paying them for the stuff they actually do make money on, and the rest of the dinosaur music company business has to change to accommodate the disruptive nature of the internet?

What if the new "record companies" essentially become the PR/Ad/promotion guys who, instead of paying bands and recording them, get "hired" and paid by the bands to market them by giving away and placing their music in the right spots? What if the copy, cut and paste, and synthesizing steam engine of the internet just kept on amplyfing the ways people use media and how they want to understand and consume it in the new Internet Regime?

It means the record companies don't get to control every unit and the business in general, but frankly, I think they've lost control anyway.

Of course, this idea disregards the old business models music companies employ, where they sign acts in exchange for rights to all the musician's work, the radio and webcasting agreements and business models, the current copyright regime, etc., as well as other business media models for movies, literature, cable and TV. I'm throwing this out not because I think, realistically, the laws will change to support these ideas anytime soon, but because I think the reality of the internet, and the way people use it, reflects aspects of this new model right now. And so if record companies want to survive, they'd better think about this. It may be that the first one to the new PR/Ad/Music Distribution punch is the one that wins.

Speaking of forward thinking acts, Ed Felten mentions that more RIAA lawsuits are on the way.

Posted by Mary Hodder at 09:22 AM | Permalink
In a Cut and Paste World, Copying Means Different Things Than in the Past

The NYTimes has four articles today on filesharing, music and the state of the internet:

John Leland on Beyond File-Sharing, a Nation of Copiers.

In fact, for many people, that shift has already come. Like file-sharing -- which 60 million Americans have tried -- cutting and pasting from the Internet is just one part of a broader shift toward all copying, all the time.

Consider a night out in the wireless city: Throw on a faux-vintage sports jersey, grab a bootleg Prada bag and head to the Cineplex for the sequel to a movie based on a television show. Afterward, log on to KaZaA and download the movie's title song, based on a digital sample. While you're online, visit a blog with links to published movie gossip and use your pirated e-mail program to send tidbits to your hundred closest friends. Curl up with a best seller by Stephen E. Ambrose or Doris Kearns Goodwin, who last year admitted to slipping materials from other texts into their books.

"I don't think they think of it as copying music," said Joe Levy, deputy managing editor of Rolling Stone. "It's a very individual experience for them. They want the songs they want in the order they want. Then it becomes not the new Mary J. Blige album, but their own mix. It's a much more individual package of music. Kids view it as an interactive and creative act."

But then, get this:

"...But the process still had some hurdles to get over", Mr. Bernoff admitted. Recently he was discussing his research with an executive at a media organization that has been very aggressive about trying to discourage file-sharing. When Mr. Bernoff asked the executive how he had gotten the report, which Forrester sells for $895, the man hesitated.

"They got a copy from one of the studios," Mr. Bernoff said. "Here is an organization that's saying that stealing hurts the little people, and they took our intellectual property and they shuttled it around like a text file..."

This sort of reminds me of when Orrin Hatch's office was using unlicensed software on their website. It's a cut and paste world, for sure.

/. on the Leland article.

Adam Liptak with The Music Industry Reveals Its Carrots and Sticks:

MOST lawsuits have concrete and focused goals. They usually want money, from particular people in particular disputes. But the 261 suits launched by the record industry last Monday, against people who made the music files on their computers available to others, seek something else entirely: to instill fear.

There is little question the industry can win the individual suits. Whether it can achieve its real goal is dicier all around -- from the youth of so many of those named as offenders, to the very idea of using a relatively small number of lawsuits to deter tens of millions of people.

Steve Lohr on Whatever Will Be Will Be Free on the Internet:

The Net's free-range design, combined with the global proliferation of personal computing and low-cost communications networks, laid the foundation for the surge of innovation and new uses that became so evident by the late 1990's. The World Wide Web is the overarching example, but others include instant messaging, online gaming and peer-to-peer file sharing. And while companies are free to build proprietary products and services in cyberspace, the basic software and communications technology of the Internet lies in the public domain -- open for all to use.

And from the front page: Neill Strauss' piece on File-Sharing Battle Leaves Musicians Caught in Middle.

"It would be nice if record companies would include artists on these decisions," said Deborah Harry of Blondie, adding that when a grandfather is sued because, unbeknownst to him, his grandchildren are downloading songs on his computer, "it's embarrassing."

Even the Backstreet Boys, one of the best-selling acts of the 1990's, did not appear to have received any CD royalties, their management said.

"I don't have sympathy for the record companies," said Mickey Melchiondo of the rock duo Ween. "They haven't been paying me royalties anyway."

Musicians tend to make more money from sales of concert tickets and merchandise than from CD sales. In fact, many musicians offer free downloads of their songs on their Web sites to market themselves.

Posted by Mary Hodder at 08:51 AM | Permalink
September 13, 2003
The Music Wars

TechTV taped The Music Wars yesterday afternoon in SF with Ted Cohen of EMI, Jeremy Welt of Maverick Records and John Perry Barlow of EFF starting things off. After some discussion, a musician on each side of the issue was added (Chuck D - pro file sharing and Ira Dean of Trick Pony - anti file sharing). Things were nice, but contentious. Nobody threw chairs, but they joked about it. Their positions were far apart, but everyone there could agree that musicians need to get paid, and the Internet has disrupted the music industry to such an extent, that the resulting problems are difficult and complex.

The unfortunate thing about TV discussions like this is that people get 30 seconds to lay out complex issues, and then they start throwing sound bites. We will never get to a reasoned, deeper solution, and good discussion with this kind of banter. But if people who know nothing tune in and start with this, and then look further, it can be useful.

I watched the show from the audience, which included people like Brian Zisk and his wife, several local kids/families getting sued by the RIAA, music press, and others interested in these issues like John Barry. They had told us before hand that we would be asked questions, so we were supposed to be ready, but the Q&A never materialized, as we ran out of time.

Others interviewed:
Jesse & Andy Jordan -- -- he was one of the four students who built google like search engines that catalogued his schools files on their internal network, and had the RIAA sue him. He settled for $12,000, his savings account.

Dan Ballard -- "Jane Doe" Attorney, who made the very good point that the subpoena process under the DMCA is not right: basically, anyone can send a subpoena, without the court reviewing it (judges or clerks), to an ISP to get someone's personal information. Normally, in other cases not involving the DMCA, subpoena's like this happen with judicial review, because a lawsuit has been filed. But in this case, all your information gets turned over, but there's no lawsuit. He thinks they should be forced to file a lawsuit first, and then have the court approve appropriate subpoenas, in order to protect people's privacy and make sure that it is a legitimate request, i.e. not a request from a stalker, pedophile, etc.

Music Software:
Sean Ryan --Real Networks, listen.com,
Derek Broes - Brilliant Digital Entertainment, and Altnet
Michael Weiss -- Morpheus

Bill Evans, the founder of boycott-riaa sat next to me and was one of two audience comment/questions they took.

I asked a couple of times during breaks to ask a question, but the controversy was so great on the panel, that they never really got to real audience questions. There was just too much to cover in the one and a half hours. Watch it today at 6 p.m. and Monday 9/15 at 1 p.m. and 6 p.m. Eastern.

Update 9/14/03: Denise Howell has some notes on the Music Wars special.

Notable: Hilary Rosen (on why the recording industry has never taken advantage of P2P file sharing networks; just left as head of the RIAA): "Well first of all, they've never asked."

I'd say 63 million file sharers (the current number of Americans estimated to be using) is a compelling request! What parallel universe is she living in?

Charlie Daniels: "I have thought for a long time that the record industry had to catch up. We're always behind in technology. We're always behind in technology, and then as far behind as we are, the people who make the laws of the land are even further behind."

Posted by Mary Hodder at 11:37 AM | Permalink
September 12, 2003
Downloaders vs. Uploaders

The NYTimes has an editorial today on Suing Music Downloaders.

Many other media stories about the RIAA lawsuits and subpoenas have made this mistake. The RIAA is suing uploaders, not downloaders. They might in future sue downloaders, but right now, the lawsuits are directed at people who offer music to others. There is a difference and it does matter.

The editorial itself makes a good point, however, that the music industry needs to change: The industry also needs to improve its technology. File swappers get their music online not only because it is free, but also because it is convenient. Consumers want to get the music they want in their homes, immediately, and they don't want to be forced to buy a whole CD to get a song they like. Online music stores, which keep prices down by eliminating CD's, packaging, delivery and bricks-and-mortar stores, are the wave of the future.

Okay, they're a little late to the party here, but hey, we'll take it. The op-ed also thinks the music industry has the right to sue, which it does technically, saying this is the only option for the music industry to defend itself. This is not true; the music industry does have other options. But considering the voice and the outlet, it's about as much as we can expect at the moment. Especially when they can't keep uploaders and downloaders straight (uploaders offer, downloaders take).

Also note that the BBC is reporting that the lawsuits and subpoenas are not having the desired effect on the traffic on file sharing sites. However, it seems to soon to tell with the lawsuits, since they only started Monday. But traffic is up 20% since August. The last three years, traffic has fallen in the summer months and come back significantly in September, so this is in line with previous years.

Posted by Mary Hodder at 08:38 AM | Permalink | Comments (1)
Lisa Rein on Subpoenas

Rein has this Commentary: What's Real and Make-Believe with the RIAA Subpoenas? She tells why sending subpoenas before a lawsuit starts departs from the norm, invades people's privacy by allowing personal information to get out, outside the context of judicial review, without the person being investigated having any chance to oppose the subpoena asking for personal information. This is a real problem and recently a litigant lost a case because they abused this subpoena power of the DMCA. But every person whose private information is inappropriately or abusively subpoenaed doesn't have the resources to sue. It's not a fair burden to place on people. The DMCA really needs to be corrected so that subpoenas come after a lawsuit is in place, and a judge can review the reasonableness of a subpoena. Just read it!

Check out her excellent video blog, too. I don't think anybody does what she does, and it's invaluable!

Posted by Mary Hodder at 07:08 AM | Permalink | Comments (1)
September 11, 2003
Differences... in the Music War

Doncha just get the feeling that it comes down to this: Fred Von Lohmann says it's about pricing points and the RIAA thinks it's about controlling their content no matter what. They are two different arguments, and in a way, they are both right. Legally, the RIAA can, under the current copyright regime, control the content in whatever way they wish, including locking it up, letting no one listen or they can charge whatever they choose. Practically, that will never happen, under the current Internet regime, and so Fred is also right, the cat's out of the bag, and it's stupid to sue your customers, so just agree on a pricing point and we'll do compulsory licensing.

The only problem is, there are practical reasons compulsory licensing won't work. First, that I know of is that it's not yet technically feasible, yet, and may not be for a long time. Not to mention the privacy and payment collection issues which may actually be easier to work out than the technology issues. Because EFF probably can't defend any of the people who are being sued by the RIAA, because it's too expensive, they are left with promoting a solution that isn't technically feasible, in order to drive home the point that if the RIAA just let the stuff out at a reasonable price, people would pay, and this whole problem would go away, and 12 year olds could get back to being kids.

Hiawatha Bray/Boston Globe is right (htm): The palpable dishonesty of all parties in the file-swapping wars is more entertaining than any disk ever cut by Madonna. The music companies overcharge their customers and underpay the artists. The file swappers denounce the worthless drivel being put out by the recording firms, even as they steal as much of it as their hard drives can hold. And last but not least, we have guys like Michael Weiss of Morpheus, who swear they have no idea what their products are used for, and not the least interest in finding out.

None of this controversy will go away until we have a solution that is practical, and reasonable, and possible. Rather than just yelling positions loudest, suing people, or forcing solutions we can't do, can we compromise? The $64,000 question is, I guess, what the technical aspects of that solution will look like. Maybe the policy solution is to relax the controls copyright owners have over their work, at least for personal use, and then force payment as Fred proposes. I don't have any idea what the technical answer might look like. It may be that the DarkNet is the answer, where private distribution just takes care of this problem, both in keeping the RIAA out of people's computers, and making compulsory licensing unnecessary.

Posted by Mary Hodder at 07:48 AM | Permalink
Sue KaZaa, Not the Customers?

Derek Slater and Ernie Miller (/.) (friends and colleagues) both look at what an unworkable idea this is, in response to the Wall Street Journal OpEd piece on this yesterday by Chicago Law Professor Douglas Lichtman.

Says Derek, under Lichtman's logic: ...every technology creator has to know specifically how the service should be used for legitimate purposes and design around those specific purposes, because putting out general purpose technologies will leave a company open to huge damages. In turn, users won't be able to come up with new, innovative, legitimate uses of new technology because they'll be strictly cabined within the uses the technology creator was thinking of. That, too, will hinder technology creation.

From Frank, a pointer to this Michelle Delio/Wired piece, Rude Awakening for File Sharers:

"My mom paid $29.95 for Kazaa and assumed she was using a legitimate service," said Marilyn Rodell, whose mother is being sued. "How was she supposed to know the difference between Kazaa and something like Pressplay where you pay $9.95 a month?"

"Kazaa has a very pretty, very professional-looking Web page. I paid them a fee and assumed it was a legitimate way to buy music," said Karyn Columbine, a Manhattan resident who insists she was "shocked and scared" when she discovered that the fee she paid to Kazaa didn't cover legal music downloads.

The answer to this is not about outlawing P2P technology per se. Maybe instead KaZaa's business practices are the problem, and so selling something like KaZaa, with a warning posted explicitly on their website that users of this service, if trading copyrighted materials, might be liable for the trading, uploading, etc. might be more reasonable for the average user.

Update 9/11/03 1pm: Lawrence Solum at Legal Theory Blog has more to say on this topic, including the posting of Lichtman's response to this discussion (he's put this in the comments, too).

Posted by Mary Hodder at 07:26 AM | Permalink | Comments (1)
September 10, 2003
And In Other News... BizWeek Explains Why the FCC Needs a New Chief

Thane Peterson/Business Week explains how Michael Powell's ill-advised efforts to help Big Media united left and right alike. After such a fiasco, resignation is the honorable option for the following reasons:

· Powell's no. 1 policy initiative has been repeatedly rebuked.
· He refused to make the 250-page public policy document about the rules change public.
· He only held one meeting about the rules change.
· He skewered the data he did make available.

In the meantime, Frank James/Chicago Tribune says in FCC Chief Warns Of Future Shock:

"I think free, over-the-air TV is dying," says FCC Chairman Michael Powell. "I don't care how much money they made this year, they're dying." Part of the reason, he says, is that cable networks have both subscriber and advertising revenue, unlike network television. Powell also cites cable's freedom from the federal indecency rules that broadcast stations must follow. "In 10 years, free TV is going to be gone -- absent any policy decisions trying to help," he claims. Opponents remain unconvinced. "Here we have the chairman of the FCC trying to somehow protect four of the six largest and most profitable media companies that dominate the news, information and entertainment market in America today," said Gene Kimmelman, of the Consumers Union. "His entire philosophy reeks of corporate welfare for the wealthiest, most profitable companies at the expense of competition." Powell also fears that the nation's public telephone network will start to fail because rather than building facilities, companies such as MCI and AT&T are piggybacking on the equipment of regional phone companies "like sucker fish on whales." However, he was unsuccessful in his bid to revise FCC policy regarding the telephone industry.

While I don't think Powell will actually resign, I do think it's interesting that a major business publication is advocating this. Powell has tried to change media concentration of companies that control the flow of content both through traditional media outlets as well as the Internet, and people are rejecting that change. His argument is often that the Internet will save us from media concentration, because it provides wide ranging choices from many traditional and non-traditional media. The part he forgets to mention is that those same companies that are so concentrated also control the pipes to the Internet, giving them tremendous power over our supposed savior, and they are the same companies that are trying through various legislative and tort methods to close some of that access. I hope that this is part of the reason people are rejecting the further concentration of companies, beyond the general fear that traditional media is too concentrated already.

OJR has this interview with Powell, who responds to the concentration of media question:

...the problem in a society is not concentration and scarcity but actually abundance, fragmentation and hyper competition. There's so much of it the audience is getting fragmented across so many different media that they're very hard to reach and hold onto.

But if the overwhelming majority of the voices are all coming from the same few media companies, fragmented yes, but still from the same kinds of sources, then how do you have variety of information. Maybe you have a million slightly different shelter or food porn channels, but will you have true variety of viewpoints, critical news, sources and opinions to counter the concentration of media companies? Just because the audience is fragmented doesn't mean that reflects a diverse media.

Regarding the death of over-the-air TV, I would urge you to reread the last bit of this transcript of a debate over the broadcast flag, held at the DRM conference last spring. Advocates for the broadcast flag, a DRM technology that can be embedded in digital TV transmission but will only work if the transmissions are controlled through cable or similar distribution systems (to keep this TV from P2P networks), want to end over-the-air TV because they can't use broadcast flag DRM with it. But as the end of the transcript shows, those who wish to end over-the-air TV are contemptuous of those who still get TV through that method, maybe because they are poor, not with-it, or uninformed about Sex-and-the-City? I suspect those that want to end air broadcast think that they can both control the content with the DRM, as well as force the last 20% of the populace (including Mozelle Thompson, FTC commissioner) to buy cable. And you know increasing the bottom line by up to 20% for the cable companies, who are part of those big concentrated media companies, would be fabulous for this or any year's profit statements, CEO/analyst conference calls, etc.

Broadcast flags and more media concentration would be big wins for these media companies. The losers would be the public, who would further lose choice of distribution mechanism, as well as voice and control, in their content.

Posted by Mary Hodder at 07:19 AM | Permalink
September 09, 2003
Are You Headed to Junior High Schools to Round Up The Usual Suspects?

This was the question Sen. Dick Durbin, D-Ill. asked Cary Sherman of the RIAA today during a Senate Judiciary Hearing on "Pornography, Technology, and Process: Problems and Solutions on Peer-to-Peer Networks". The question was asked in response to the RIAA suing 12-year-old Brianna Lahara as part of the 261 suits filed yesterday against file sharers. AP reports that the case has been settled for $2,000.

"The real hope here is that people will return to the record store," said Eric Garland, CEO of BigCampagne LLC, which tracks peer-to-peer Internet trends. "The biggest question is whether singling out a handful of copyright infringers will invigorate business or drive file-sharing further underground, further out of reach."

Suing 12 year olds, etc. seems more likely to backfire on the RIAA, pushing people into the DarkNet, than causing a reasonable solution for the majority of the populace so they can buy music legally online. If the RIAA was looking for bad publicity, they got it. But I really find it hard to believe that they are convincing anyone of their position with these tactics. Not to mention, poor Cary had such an embarrasing day. Dude, I gotta get a better strategist!

Posted by Mary Hodder at 05:07 PM | Permalink | Comments (1)
Self-Destructing DRM on DVDs, Brought to You by Disney

Tear yourself away from the RIAA/Lawsuit story for just a moment, to check this out from Peter Henderson/Reuters:

Disney to Test Self-Destructing DVDs This Week (or here on CNN). For $6.99. Rather than rent, you can buy a copy that lasts 48 hours, so that you don't have to return it like a rental.

If Walt Disney Co. gets its wish, an experimental type of DVD will begin flying off store shelves on Tuesday -- and self-destructing 48 hours later.

Disney movies on disposable DVDs are set to arrive in convenience stores, pharmacies and other outlets in a four-city test of whether Americans will pick up a limited-life DVD rather than dropping by a video rental store.

But get this logic:
Although the disposable DVD format does not make it harder for digital pirates to make illegal copies, Blaustein said by making DVDs cheaper the effort would also undercut the incentive to make such bootleg copies.

Memo to the RIAA: you could work with your customers to provide market solutions to piracy, instead of suing them.

Posted by Mary Hodder at 07:50 AM | Permalink | Comments (4)
September 08, 2003
Extremes? It's All About Them.

The RIAA's a sue'n, companies mergin' won't fix those problems anyhow, and sales are falling (though it's much more complicated than just piracy), but not for iTunes or Rhapsody which is streaming 500,000 songs per day. And Virgin is giving downloads a try for 60p (around $.90). Live in the middle and sell. Exist on either end of this battle, and the chaos might warp your sense of reason.

"It's not all file-sharing," said Andy Gershon, the president of V2 Records, home to the recording artists Moby and the White Stripes. "I do think that right now, the business is sick but music is great."

Other record label executives agreed. Among the problems they cited were the consolidation of radio stations, making it harder to expose new bands and records, and the lack of a widely popular musical trend like teen-pop, which relied on stars like Britney Spears and `N Sync to drive young people to record stores.

"The industry has to increase the price of illegal file sharing and make it more attractive to download music legally or purchase CD's," said Hal R. Varian, an economist at the University of California at Berkeley. "That is the economic gap the industry is trying to close." (Neil Strauss/NY Times, Executives Can See Problems Beyond File-Sharing)

So back to the war: Durwood Pickle, 71, of Richardson, Texas (via Ted Bridis/AP and the NYTimes) said: "I didn't do it, and I don't feel like I'm responsible. It's been stopped now, I guarantee you that.'' The RIAA is suing him for file sharing on a computer his grandchildren apparently used. "I'm not a computer-type person,'' Pickle said. "They come in and get on the computer. How do I get out of this? Dadgum it, got to get a lawyer on this.''

Also, the latest in P2P? PeerCaching. Apparently, it allows ISPs to cache frequently downloaded files, and one of the founders of KaZaa is selling it. Niklas Zennstrom no longer has an interest in KaZaa, but he has developed this software that will reduce the costs to ISPs for the large file sharing traffic they now experience. Music companies are taking note. Interesting legal issues for the caching companies about publishing, links, etc.

In case you haven't been subpoenaed by the RIAA, but want to do the Clean Slate Program (pdf description), here is the affidavit (or pdf here) per Frank. But do remember, the RIAA doesn't cover all record companies, so the rest of them can still come after you, not to mention the music publishers who are in a different union. The privacy policy with the documents does not promise to prevent this by not sharing the information if required by law (you know, like, entities subpoenaing each other and such):

Information provided on the Clean Slate Program Affidavit will be used solely in connection with conducting and enforcing the Clean Slate Program. Information will not be used for marketing, promotional or public relations purposes. Information will not be made public or given to third parties, including individual copyright owners, except if necessary to enforce a participant's violation of the pledges set forth in the Affidavit or otherwise required by law.

Then there's this from Shawn Langlois/CBS Marketwatch where the file sharers are thumbing noses at the RIAA:

Howler24 drew a line of futility between what he feels are two ill-fated crusades: "Yes, you can cry and moan about the 'evils' of drugs and file sharing. But when you're through foaming at the mouth, you have to realize that they are BOTH here to stay. No law, no court can change that. The best thing to do is to control it and make it profitable, instead of driving it underground."

Gannett on Fight over free music on Web coming to Congress talks about the latest bills in the House to prohibit filesharing, and has this: And Cindy Cohn and Fred von Lohmann, lawyers at the Electronic Frontier Foundation in San Francisco, said 250 million people worldwide are using music file-sharing software. Even if the 60 million Americans who have downloaded music are stopped, the free music party on the Web will keep going, said Cohn, whose organization gives advice to people who are subpoenaed. "Trying to throw 60 million Americans in jail is not a reasonable approach," von Lohmann said. "That's more than voted for President Bush."

Course there are plenty of people who are scared and supposedly staying off the file sharing networks as has been well reported in almost every story on the 261 lawsuits today, but the reality is that each of the past three summers, when people go on vacation, there were the same dips in P2P traffic. So the bump up in the past week that apparently occurred in KaZaa traffic is in line with years past too, and belies the notion that it's the subpoenas and lawsuits that caused less traffic in July and August.

Posted by Mary Hodder at 05:42 PM | Permalink | Comments (1)
September 07, 2003
DRM at AP

Marc Humbert/AP write that Tom Curley Promotes the e-AP about the new electronicAP.

"We are transforming the AP from a wire service, which we've been for 150 years ... to an interactive database and news network that connects us, and not just connects us technically, but more importantly connects our common business and journalistic goals," said the former president and publisher of USA Today.

Sounds great, except this:
Curley said that to increase revenues, the AP must expand its foreign presence, photo services, and revenue from the Internet, while increasing anti-piracy protection from those who would use AP's product without paying for it.

Huh? I'm sorry, but that's absolutely hilarious. While AP does good wire-service stuff, last I checked, it was not the provider of sexy content the way the RIAA and MPAA are, and frankly, practically everything they put out is available on the web for free from thousands of news outlets, who I presume? are paying AP for their services (note the link to the free AP article above). That I know of, there are not tens of millions of people file sharing AP stories on P2P networks, and while I'm sure there are a couple of people who might be taking AP product without paying (hackers logging into their network?), the idea that they might include some anti-piracy protection -- DRM? -- embedded in their stories is ridiculous. I mean, I know they can use XrML, but do they really want to? When he uses the word "anti-piracy" this leads me to believe this is what he has in mind (verses say good firewall management for their online databases). If they want to be the leading authority in their content category that people turn to (especially when it comes to news, which changes by the minute), is DRM more important than the potential for keeping readers from accessing their content?

I'm not sure Curley understands that on the web, he's not selling content, but instead is selling the service with the content as the bonus. News providers on the web provide value by organizing and editorializing the aggregation of a lot of information and articles, and that's what we, as news consumers will pay a premium price for, to get good quick information. But per article, the information is not a paying proposition except for the news outlets that repurpose and pay for it now, because they sell ads. The content definitely doesn't need DRM restricting its use.

Posted by Mary Hodder at 04:47 PM | Permalink
iBling, and the State of the Music Biz

Welcome back to Donna who just returned from her move/wedding/trip!

Pholisters are calling it iBling, but today's NYTimes has a piece (Girls? Check. Cristal? Check. iPod? Check) on the iPod as the music video accessory du jour for the 50Cent crowd.

The iPod looks like it belongs in the video. As Microsoft has been cast in the role of Goliath in the personal computing wars, Macintosh has been playing David. And right now the stone in its slingshot is music.

And Donna points to Frank (and his dandy, newly redone blog) pointing to the Personal File-Sharing Amnesty Application Form:

"You Have (Check All That Apply):

Life Savings How Much ______
Seizable Assets Total Worth ______
No Understanding of the Law ______
Only a Vague Grasp of My Rights ______
A Proctologist ______
..."

And Ashlee Vance/The Register is laughing over the UMG CD price cut, but she does make the good point that:

The hilarity of the situation has gone unnoticed by most media outlets. They've portrayed Universal as a brave white knight taking a bold stand to try and correct a very wrong situation. File-traders have eroded the music labels' revenue stream.

...Be bold? Industry leader? That's where the joke begins.

As The Times points out, this is the first CD price cut since the media format came on the scene in the 1980's. Think about that for a minute. New format, volumes low, prices high. Ronald Reagan was president.

Since the 80's, the record labels' have seen CD sales surge. What do we mean by surge? Let's hop over to the Clinton years, when the CD was a well accepted, popular format and see.

In 1993, CD makers shipped 495 million units and brought in $6.5 billion, according to the RIAA (Recording Industry Association of America). By 2000, units had almost doubled to 942.5 million with $13.2 billion in revenue. That's quite a run.

The labels' performance was, no doubt, helped by a "promotional program" the FTC (Federal Trade Commission) likes to call price-fixing. The U.S. government found that the labels were collectively working to keep CD prices high, during these glorious boom years. Where was the white knight Universal then? Oh, right, probably price-fixing.

Laughing yet? If not, here you go.

"What we're trying to show people is that music is a good value, even if you have to pay for it," said Zach Horowitz, president of Universal Music, told The New York Times.

Well, yeah, it's a good value when you aren't artificially keeping the prices high. It's also a good value when basic laws of economics are followed. As demand for CDs sky-rocketed, the price would be expected to go down. Two decades and four presidents is a long time to wait for a single price cut. CD players certainly went down in cost.

Thank goodness someone at Universal finally went to a macroeconomics course. Give that person a raise for taking night classes at the local community college.

Business Week has an article (in a Dark Web! that I subscribe to, but for some reason cannot login to), about the Dark Net discussed here before:

Innovation in darknet technology is coming from many different directions. Independent developers are giving away freenet and invisibleNET, software that allows dissidents in countries where censorship exists to get information from the outside world and speak more freely among themselves. A free program called Waste, designed by America Online's Nullsoft division, showed up on the Web four months ago and is catching on among pirated-music dealers. BadBlue and Groove Networks Inc. are among the companies trying to make money from darknets. They sell collaboration software that permits a company to safely share sensitive documents or financial information with partners.

The idea is that people are moving to DarkNet music clubs to file share, and these will not be detectable by bots or the RIAA, defeating their current attempts to stop the filesharing of copyright protected work.

Finally, Saul Hansell/NYTimes talks about the efforts the music industry is going to to scare people from P2P systems, because of the shocking! amount of porn that children can get to there. Except he, and Ed Felten, point out that it's actually a minute part of what's available. See the chart:

07PORNch184.gif

...where you'll note the thin lines at the top of each bar that make up the porn content. Ed Felten reminds us that paper is also very, very dangerous.

Posted by Mary Hodder at 04:03 PM | Permalink
September 04, 2003
RIAA Offers Amnesty

Ted Bridis/AP says Music Industry to Unveil Amnesty Offer. If you've already been subpoenaed, you're out of luck. But if not, you can swear on your notarized statement to delete everything, and never file share again. Absolution and a pat on the head. Course, the RIAA doesn't represent everybody, so you might still get sued by the remaining non-RIAA-member recording companies. Coming forward may not be the smartest course of action. Check with your lawyer.

Is this going to be like the 70's, post Vietnam? Where first the government gave amnesty to those conscientious objectors who filed all the paperwork and got all the way through the DOD hearing process, but were denied CO status, and then still dodged the draft? And then after those guys, the government gave amnesty to those who got part way through the process, and then after a while to everyone else who just didn't show up at all? Then again, the RIAA is probably tougher than the DOD. Best not to count those chickens before they hatch. Or some such cliché.

Update 9/5/03: Slashdot discussion here. Also, Jon Healy/LATimes say in Record Labels to Offer Amnesty to File Sharers, With Conditions (htm):

The labels' trade association is ready to grant music downloaders amnesty -- provided they put their names, and possibly their faces, into a database. Is that like being convicted and punished, without a trial? Just admit your guilt and then be tracked privately by a trade association?

And then of course there are the privacy implications of such a database:
Under the program, which was first reported by Billboard Bulletin, applying for amnesty carries a risk: Those who renege on their pledges to honor copyrights would face much more severe penalties if they were targeted in a later round of lawsuits.

Given that, the RIAA might demand a copy of a photo ID from amnesty seekers to protect people against being placed in the database fraudulently without their knowledge, a music industry source said. But McGuire said, "I'd want to know how that information is going to be protected."

Where is the judicial review for this? And the oversight for maintaining the database of confessed file sharers with photos and other personal information?

Some kind of licensing scheme, compulsory or otherwise, seems vastly more reasonable than this!

Posted by Mary Hodder at 07:28 PM | Permalink | Comments (3)
And the Beat Goes On...

Sony is planning to offer downloads of music, and Universal is lowering CD prices (to $12.98!) in response to the drop in sales.

Katie Dean/Wired report that people want their music in more granular chunks than CDs, so singles rule again. Although Jon Pareles/NYTimes says that CD's are still the format of choice, at least regarding his reviews of the Neptunes, Tigerbeat6 and Mike Nardone's compilation albums. And Alorie Gilbert/CNet report on the eBay resale of an iTunes song (htm). Ebay says they are removing it because they prohibit selling electronic data, but it brings up interesting first-sale doctrine issues. Johanna Jainchill/NYTimes interview Mike Stuto of Hi-Fi, who has a 26,000 song "heavenly jukebox" made by EL DJ (coming soon, a home version of their software!). Yes they pay royalties, but the patrons of Hi-Fi love it, in part because there are so many more choices than the usual 200 CDs in a jukebox. Again, granularity and selection rock!

Posted by Mary Hodder at 07:01 AM | Permalink
Ernie Miller Looks at Chamberlain, the DMCA and More

On Lawmeme about the latest in the Chamberlain v. Skylink case (pdf): Judge Asserts Pseudo Distinction to Preserve DMCA. This is the case where Skylink made a third party garage door opening transmitter (you know, the little dark gray plastic thingy with a button that you keep in your car) that worked with Chamberlain's garage door opener (GDO, and it's the mechanism in your garage that actually moves the door open), after which Chamberlain asserted this violated the DMCA. Chamberlain uses a rolling code mechanism (meant to deter thieves) to make their GDO work with their own garage door-opening transmitter. Skylink makes many different transmitters that work with several manufacturers' GDOs. In this case Chamberlain said that Skylink's accessing of the rolling code was in violation of the DMCA anticircumvention provisions.

The problem for the judge was distinguishing the Reimerdes DMCA case from the present facts. In Reimerdes, the decision essentially outlawed all unauthorized devices which decrypted CSS. Under Reimerdes, consumers have no right to access a DVD they purchased unless they use a licensed player. With regard to GDOs, however, the court found a couple of major distinctions. For example, in Reimerdes, the court here claims, the creators of the DVD licensed the decryption software to the manufacturers of players. Thus there were authorized circumventions and non-authorized circumventions. First, the court has the facts wrong. The MPAA and its constituent studios have no authority to license CSS, that authority belongs to the DVDCCA. The licensing involved in CSS is quite complex, and needs to be dealt with more carefully with regard to the legal reasoning. Indeed, if the copyright holders were in fact the sole licensees of CSS, that would raise interesting antitrust concerns. Luckily for the studios, they do not license CSS. Second, if a use is licensed, it is not circumvention. Circumvention implies that the use is unauthorized. Thus, the distinction fails. However, even if the distinction were valid, the problem for Chamberlain becomes that they did not license the technology to another company. If Chamberlain had licensed the technology to one other company, then the argument could be made that there are "authorized" and "unauthorized" circumventions. How the DMCA can be interpreted in this way, I don't understand.

Read the rest of his assessment of the case and the DMCA. It's well done.

Greplaw also interviewed him yesterday: Ernest Miller on DRM, Privacy and Hemingway and it was slashdotted. Check out Game Jockeys too; it's Ernie's latest venture. Great interview, too!

(Related: Ed Felten looks at Chamberlain, as does Derek Slater.)

Posted by Mary Hodder at 06:38 AM | Permalink
September 03, 2003
Accomplishments and Two Regrets: Tom Kalil

Tom Kalil, Special Assistant to the Chancellor for Science and Technology, gave a talk today in Technology and Policy where he discussed information technology policy he was apart of during the Clinton and Gore era. He reviewed the accomplishments of their administration, where he served as Special Assistant to the President for Economic Policy, including things like encouraging R&D, making NetDay, addressing Digital Divide issues, maximizing technology policy in the national interest, protecting children's Internet interests and preserving privacy.

Regarding NetDay, he told a story which he said has not been widely reported. Apparently, in 1995 Kalil ran into John Gage of Sun and they discussed the idea of NetDay, after which Gage sent Kalil a mock webpage promoting a day that was yet to be organized, with not-yet-enlisted sponsors such as Apple, Sun, etc. Kalil showed it to Gore, who misunderstood its purpose, and took it to Clinton and said, hey, we're in California next week, and this is going on and you should announce it there. Done! So Kalil called Gage and in one week, they pulled together support from the companies on the mock webpage, got 10,000+ volunteers and held the first event in March of 1996.

He also talked about how technology policy is different than other kinds of policy, where the challenge comes with the rapid pace of change, the few people (though growing) in government who have a background in the relevant issues and with how this area of policy can be broad and ill defined, and affect many different areas.

As for the regrets, in answer to an audience question, he said "...if I had it to do all over again, I'd take back the Sonny Bono Copyright Term Extension Act." This is because he feels that intellectual property policy is tilted too far towards the copyright industry now, and in light of Public Choice Theory, where there are concentrated benefits (for say, Disney) and diffuse costs (for say, the public domain and the public), the public loses.

The other regret was over encryption policy, where the FBI/NSA believed that even though encryption technologies were available over the web, verses say being included in a Windows OS, that having restrictive policies in place were better. He said the NSA believes that everyday you can delay those technologies from being standard in systems is a good day. So the administration would have people laughing at their encryption policy but NSA types happy with it.

Interesting talk by the guy whose current job is to think strategically about organizing technology and science developed at UC. The class is full of CS, Mech Eng, law, SIMS, Biz, Public Policy and Journalism grad students who can look forward to an outstanding line up of technology and policy speakers.

Links here to papers by Kalil on Leveraging Cyberspace, The Case for Putting Internet Applications on the Policy Agenda and A Broader Vision for Government Research.

Posted by Mary Hodder at 11:01 PM | Permalink | Comments (1)
New FCC Media Ownership Rules Get an Emergency Stay

... pending judicial review. David Caruso/AP report that the rules that would allow a single company to own newspapers and broadcast outlets in the same city will have to wait. The House voted in July to overturn the rules, and the Senate is supposed to take this up next week.

The rules were challenged in court by the Prometheus Radio Project, a Philadelphia-based coalition of media access groups that campaigns for greater radio access and helps groups seeking to establish low-power radio stations.

"Given the magnitude of this matter and the public's interest in reaching the proper resolution, a stay is warranted pending thorough and efficient judicial review," a three-judge panel of the appeals court wrote in its brief opinion. The judges did not comment on the merits of the complaint.

One way or another, the concentration of distribution channels of media and IP have to be looked at by the public and their representatives, because the media business on it's own will just keep merging. Another day, another merger/acquisition.

Posted by Mary Hodder at 05:58 PM | Permalink
Office Now Verses Office in the Future

Microsoft's Office suite is the subject of two recent articles:

The first, by Hal Varian and his son, Chris, addresses their Microsoft Office-Linux Interoperability Experiment where they took samples of Word, Excel and PowerPoint files from the Internet and opened them on Linux systems using free office systems like StarOffice, which was the overall winner in compatibility, with scores of 95 to the 99th percentile depending on which application and type of documents.

One could quarrel with our sampling methodology. Files posted on the Internet are often there to be read by others and may well be more generic than files distributed within a typical organization. Most of the Microsoft Word files that we downloaded, for example, did not use mathematics, outlines, tracking changes, or other such features.

This particular experiment should be considered a pilot study that could be extended to a larger one, and perhaps automated to some degree. Nevertheless, the results are suggestive: The current state of interoperability is reasonably good, although there is significant room for improvement.

The second article by David Becker/CNet says that the New Office locks down documents with DRM or Information Rights Management. "If Office 2003 was just another incremental upgrade, they'd have a hard time getting businesses interested," said Michael Gartenberg, an analyst for Jupiter Research. "For most people, the pinnacle of functionality in Office applications came in 1995. But there are more things that can be done using Office as a platform for delivering new services." Apparently, businesses have been slow to adopt the new Office 2003. So the answer for MS appears to be to include DRM in the form of their IRM as well as XML (both of which require Windows Server 2003 to implement).

This may also break the interoperability the Varians found in their preliminary study between Office documents and other free office ware. And people with older versions of MS Office may not be able to read documents from Office 2003. This may mean that MS can lock-in companies and users and force otherwise unnecessary upgrade even more so than they already are. But if their Office 2003 documents are no longer compatible, does that mean more anti-competative behavior? Robert X. Cringely has a story about the Burst v. MS case. The only thing was, nobody, or almost nobody was watching the case.

Microsoft did not come through the hearing very well as whole new levels of anti-competitive behavior were claimed by Burst AND ACKNOWLEDGED BY MICROSOFT -- levels that will likely haunt Redmond in many legal cases to come. While the Burst case is a different kind of anti-competitive behavior, it appears constant vigilance with MS is critical because of their tremendous power in the market.

Posted by Mary Hodder at 07:50 AM | Permalink
September 02, 2003
James Tells A Good One About Abusive Subpoenas

Grimmelmaniacs will delight in his latest: Abusive E-Mail Subpoenas Are Actionable Under Federal Law. There's legal hardball, and then there's legal lunacy, and Alvin Farey-Jones just got an expensive lesson in the difference. In the course of a lawsuit against a company named ICA, he sent a subpoena to ICA's ISP, asking for all of ICA's email. The ISP complied. (ruling here, in pdf) The Ninth Circuit has just ruled that Farey-Jones's actions could constitute a violation of both the Computer Fraud and Abuse Act, which prohibitions "unauthorized access" to computer systems, and the Stored Communications Act, which does the same for electronic communications.

So asking for documents you are not entitled to get, via a subpoena generated without judicial review, can get you a $9,000 judgment and an earful from the judge. It was no defense that the ISP subpoenaed fulfilled the request even though they didn't know it was not a lawful request.

Check out the write up yourself.... Also, Security Focus has the story.

Posted by Mary Hodder at 02:02 PM | Permalink | Comments (1)
EU Delays Vote on Directive to Patent Software

Matthew Broersma/CNET says in Protests delay software patents vote:

The European Parliament has delayed voting on a controversial software-patents directive, after protests and criticism by computer scientists and economists.

Software patents have been likened to allowing a monopoly on the ideas behind stories, and opponents of the proposed Directive on the Patentability of Computer-Implemented Inventions claim it would effectively allow unlimited software patents. In the United States, large companies acquire arsenals of patents that they use to protect themselves from upstart competition.

Currently, software is protected under copyright law in the EU.

Peter Williams/Computing suggests that "...suspicion exists that the European Parliament is simply buying time in the face of fierce lobbying against the measure." The opposition, includes the companies mentioned here before, as well as:

EuroLinux has collected nearly 200,000 signatures for a petition against the directive.

In addition, 12 leading European economists sent an open letter (pdf) to the European Parliament urging it to reject the proposals.

The letter warned of the appearance of "extensive portfolios of software patents" which would have "serious detrimental effects on European innovation, growth and competitiveness".

Posted by Mary Hodder at 07:55 AM | Permalink