The Napster Generation

April 02, 2004
EFF Announces New Blogs

Deep. "Note worthy news links from around the internet."
Mini. "A byte-sized companion to Deep Links."

In the interest of choice, I'm hoping they do a demi. You know those marketing guys say that when you offer small, medium and large, by far the biggest seller is medium. Demi-link. How 'bout it? The tagline could read: "Like two espressos after lunch, with grappa. An EFF-correcto."

Anyway, I'm thrilled the EFF has brought active blogging back to its site and I really enjoy reading Fred Von Lohmann, who I haven't seen blog before, write about Wicked Player Pianos and such. It's only occasionally we hear from him on Pho. Though I must say that as I got to the end, I noticed what turned out to be a link to their "File Sharing" category (it's to the left of the Permalink which is to the left of the Technorati cosmos link. For a split second, I thought he was going to share a piano file with me. But oh well... I am discombobulated a little (you have no idea the kind of day I have had, what with 2 hours traveling 1 mile in the hot sun on the bay bridge because some guy decided to jump off).

Anyway, back to the matter at hand. Fred is joined by Jason Schultz (of Copyfight and Geeklaw) and Donna Wentworth (Founder and uber-bloggerati member of Copyfight) on the sized "deep" blog, and Ren Bucholz who's doing the miniLink blog.

Also, I've switched the blogroll at the right, to reflect these great blog additions.

Posted by Mary Hodder at 02:48 PM | Permalink
March 30, 2004
File Sharing Lawsuits At Berkeley

Well, everybody including Mark Cuban (the owner of the Dallas Mavericks who just started blogging) is talking about music and copyright somewhere, it seems. Cuban has suddenly become very active on Pho talking about the Leahy-Hatch bill proposing to make file sharing criminal. (Side Note: Mark mentioned a company he started selling powered milk as an example toward the entrepreneurial spirit he thinks the music business and RIAA should consider, instead of fighting file sharing with lawsuits and lobbying their congress-buddies for extra big sticks to crack on the file sharers. Other Phosters are arguing back. Online discourse is fun, isn't it? And Ernie Miller notes how this puts Hatch on the side of porn companies. Oh the wicked webs we weave....)

Folks have also been talkin about the UNC Harvard study on music downloading:

    Downloads have an effect on sales which is statistically indistinguishable from zero, despite rather precise estimates. Moreover, these estimates are of moderate economic significance and are inconsistent with claims that file sharing is the primary reason for the recent decline in music sales.

Oh my. Anywho. UC Berkeley has been notified that of the 532 lawsuits filed last week, there are a few "yet-to-be-named" students. Holy-Batman, Robin! File-sharing in Berkeley! Apparently, students aren't fazed (title of the article next to the headline in yesterday's Daily Cal about the suits).

I love the quote in the c|net article:

    "It's important for everyone to understand that no one is immune from the consequences of illegally 'sharing' music files on (peer to peer) networks," RIAA President Cary Sherman said in a statement.

God forbid that anyone might get immunity! Does this mean the negotiations for immunity are over? Dang. I though we were offering two Donovan albums and a lifetime subscription to the (semi)winning Bears home football games in exchange for immunity. You go out for a cappuccino and come back to find they've totally rejected that offer. Last time I take a coffee break.

    "Lawsuits are an important part of the larger strategy to educate file sharers about the law, protect the rights of copyright owners, and encourage music fans to turn to these legitimate services."

Well, get ready to be educated folks. You know the kind! Where the law says that if you shoplift a CD from a store, you can max at up to a $1000 fine verses the $150,000 per song statutory limit for file-sharing. Woo-hoo, is that edifying. And to think they only raised our tuition 40% this year, and 30% last. Gosh, Shatzie should get on the stick with Cary Sherman cause he's missin the boat (doncha love those mixed metaphors when discussing the two of them? Sticks. Boat. I love it.)!

Anyhow, they're going for the big bucks this time says My-Thuan Tran.

    "Obviously, college students are a big part of the problem, and therefore it was only a question of time before university users would be named defendants," Sherman said. ... The association has settled more than 400 cases so far, with an average settlement of $3,000 each. "This is not a revenue-generating exercise," Sherman said.

I repeat. Not a revenue-generating exercise. Right now the suits are in the John Doe Phase, so they're being sent to Berkeley who will then identify the students, after which the students will be served. Better move quickly, though, cause school is over in 6 weeks, and then all those students from all over the world will fly to all manner of places, making service a nightmare (or fun summer vacation for those adventurous process servicers!)

One thing, in the paper version of the Daily Cal, there was a cute little yellow and red chart, detailing legal verses illegal. Not online though. But here's what it said:

    Legal vs. Illegal
    Legal: Copying a CD onto your computer, an analog or digital tape, or special audio CD-R's for personal use.

Oaky doaky. And the CD-R doesn't have to be special either. Just recordable.

    Illegal: Sharing those copyrighted files through peer-to-peer networks, instant messaging service or private local networks. Giving or lending burned CD's to others is also illegal.

Wait a minute. That last part. Yeah. What's that? No, don't think so. That is legal, and just because it's digital verses the analog tape mentioned above as legal, doesn't make the digital illegal. As long as it's non-commercial, it's okay to make a cd, or burn your iTunes or whatever, to share with a (real) friend as part of your fair use rights. Even iTunes says so with their 3 copy policy.

    Illegal: Uploading AND Downloading copyrighted music on peer-to-peer networks like Kazaa.

Yes, this is illegal under the current law. So don't be trading on P2P networks unless the content is legally sharable, lest you want an expensive Cary Sherman education.

Posted by Mary Hodder at 01:44 PM | Permalink
March 25, 2004
PEW Asks Musicians...

What's the impact of the internet on your work. If you are a musician or songwriter, fill it out! Very important considering the "spate" of lawsuits that keep "flooding" consumers (sorry, just had to make fun of those words that those reporters overuse...). Jason Schultz does the math though, figuring that each filesharer would need to set aside $0.01483 cents per month average in order to cover settlements across all filesharers. But then Jason points out that even if every suit got the RIAA a cool million, that figure would jump to just under five bucks. Well, that is similar to the EFF's plan. But I still think we need to hear from musicians and songwriters, and more than just those who make the big bucks and therefore get their viewpoints into the media. Just do it!

Thanks to Frank for the links.

Posted by Mary Hodder at 08:02 AM | Permalink | Comments (1)
March 16, 2004
Dylan/Garamond Make Digital Music Together

Sean Savage says:

    I know, you're not quite so sure about Garamond. But you -know- you're into Bob Dylan. So give it a chance.

Indulging my fantasies about moveable typefaces. Course, the Zepplin/Times NR is pretty hot, though BigG/Baskerville has really nice letters. But the Beatle's Dear Prudence/Book Antiqua has to be my fav. Now that's art.

bigG.jpg

Posted by Mary Hodder at 06:43 AM | Permalink
March 08, 2004
Derek Slater on The Digital Music Forum.

His notes are here. Read all about who gets it, who doesn't and who ought to rethink their conception of physical media in the digital age.... Almost like being there.

Posted by Mary Hodder at 09:17 AM | Permalink
February 12, 2004
Cory Doctorow Talk about eBooks at eTech

where he just announced that Down and Out In The Magic Kingdom, his first novel, is available, as of today, under a Creative Commons No Right's Reserved license. His new book, Eastern Standard Tribe is now available for download under a Creative Commons Some Rights Reserved license.

Cool. I love No Rights Reserved.

Update 021404: here's a txt file of Cory's eTech talk yesterday. Also, the talk is No Right's Reserved, but the Down and Out Novel is actually ALMOST no rights reserved (yesterday I thought he said it was the novel, not the talk itself, that was under a CC, NNR). The novel it is actually available with this license:

    the Attribution-NonCommercial-ShareAlike license, which explicitly allows anyone in the world to make any non-commercial adaptation of my book s/he can think of: translations, radio plays, movies, sequels, fanfic, slashfic...you get the picture
Posted by Mary Hodder at 12:34 PM | Permalink
February 02, 2004
Charlie Brown Remix.

Here.

Posted by Mary Hodder at 11:02 PM | Permalink
January 25, 2004
Frank Field Has a Compelling Entry on the Copyfight

I for one find Frank to be invaluable, as a content manager for these issues, as a pointer to what's important to him and the copyfight. I have seen the conversation amongst the bloggers a little slow. Maybe it's the end of the year, beginning of the new year or finals or maybe it's the economy bubbling and keeping people busy. But these issues are key, and I'm planning more bloggers for bIPlog. Read Frank's words. They speak for themselves.

Posted by Mary Hodder at 06:28 PM | Permalink
What's Going On

Well. A lot. Okay, here's the deal. BIPlog is moving from the Journalism School servers to the Boalt.org servers. Why? Well, I'm the only poster from the original class (you remember the one: the one that was going to be the Altamont of blogging) and I'd like more posters, because I want to focus more on Napsterization, though I will keep posting on it some. Also, the blog can live on as more Law and other students join Boalt.org (the student organization at Boalt Law School) to keep it sustainable and alive. So the last two weeks we've been working on the stuff to get that done (some technical, with a huge thanks to Scot Hacker, and some procedural) and will let everyone know when to change the RSS and linking information, though old original links will continue to work, because I hate broken links to posts and so will not do this to those who've linked to bIPlog.

Secondly, I've had the most stressful week of my grad school era this past week, which thankfully has ended, as well as, in my voluminous spare time, a friend's wedding the past two days. Why two days? Well, in a past life, I used to do flowers for events to earn spare dollars as an undergrad. Now, occasionally I do them for friends as a gift for the wedding. Involves a 4am trip to the flower market, some advance planning, and then two solid days of work. My body aches everywhere. I think I'm going into retirement on this one. Though it is fun to spend $1500 on wholesale flowers and do a really high end job (retail, that would cost ten grand). But at this point, my time is more valuable than it used to be, and I just can't do this too often. Did one last summer, and while it's such a great gift, and sumptuous and beautiful to get to work with such great media, it's too much. So, I have one more bar mitzvah, and then I'm out of the biz. At least for a few years. Hopefully.

It was this week with school and the wedding that really put me behind in my technical work, blogging, school, etc. However, once bIPlog is transferred and one other project is over, I resolve to get back to my regular schedule. Please forgive me the interruptions, but I actually have some things I've been wanting to do here. Stay tuned.

Posted by Mary Hodder at 05:06 PM | Permalink | Comments (1)
January 21, 2004
RIAA Again Sues... John Doe

The RIAA has sued another 532 file sharers (uploaders they say averaged 800 or so songs) in either NY or Washington (according to Ted Bridis/AP). They now have to sue John Doe, and then subpoena personal information of users they believe file share, under court review, after losing last month the right to subpoena without oversight, directly from the ISP.

Ed Lee, Lawrence Solum and Ernie Miller comment on the success these suits bring (or don't).

Meanwhile, other business models that consider people's digital media desires are bubbling, including Diesel's Mix CD service photos here and here (via Joe and Ernie).

Posted by Mary Hodder at 11:47 AM | Permalink
January 19, 2004
File Sharing Down?

Brian Hindo/Business Week asks, Did Big Music Really Sink the Pirates? regarding lawsuits against file sharers. Hindo says that the PEW and comScore Media Metrix survey showing a decrease in KaZaA, Grokster, BearShare, and WinMX traffic show a narrow view of what's happening with filesharing. He says they don't consider that there are actually more files available on the networks for download, as well as a migration of users from those networks listed above to hipper systems like eDonkey and Bit Torrent which weren't measured. Also, PEW's methods of calling people may not get results because people may not now want to admit to filesharing. Also noted, according to:

    Nielsen SoundScan, in 2003 CD album sales slipped 2% -- a less dramatic drop than the 9% slide the previous year. Also, fourth-quarter 2003 sales picked up 5.6% over 2002.

An interesting statistic, which could be interpreted to mean that the recession had an effect on music sales over the last three years, and now that the recession seems to be ending, people are spending more on music again. Seems like a conclusion in sync with the rest of the economy and sales figures for goods.

The major issue Hindo left out was that private file sharing networks may also be having an effect, causing users of KaZaa, etc. to move to networks that are private, small friend networks, encrypted and not detectable. Right now, we have no way of knowing what happens on those kinds of networks. Though his conclusion is what we've been saying for a long time:

    What's clear, though, is that until the music industry gets fully behind online music sales, file-swappers will flock to next-generation sites like eDonkey -- which has seen 150% growth in the past year, according to independent tallies by both BayTSP and BigChampagne.
    "This stuff is not going to go away," Gartner's (Michael) McGuire says. "The industry needs to provide a compelling legal alternative." Until that happens, pirates will continue to rule the online music seas.

Derek notes Coke's new service:

    If I got my conversions right, you can stream any song for 20 cents and buy songs and albums for as low as $1.4 and 11.4, respectively.

Not quite cheap enough to be compelling, especially since $1.40 is 41 cents more than iTunes.

Posted by Mary Hodder at 01:05 PM | Permalink
January 15, 2004
Do You Wonder Whether Someday, When They Find Our Relics of Information, They Will Scratch Their Heads In Amazement Over Our Policies and Tactics?

RIAApoliceforce.jpg

Yesterday, Frank Field pointed to this:

Music Industry Puts Troops in the Streets: Quasi-legal squads raid street vendors

    Though no guns were brandished, the bust from a distance looked like classic LAPD, DEA or FBI work, right down to the black "raid" vests the unit members wore. The fact that their yellow stenciled lettering read "RIAA" instead of something from an official law-enforcement agency was lost on 55-year-old parking-lot attendant Ceasar Borrayo.
    The Recording Industry Association of America is taking it to the streets.
    Even as it suffers setbacks in the courtroom, the RIAA has over the last 18 months built up a national staff of ex-cops to crack down on people making and selling illegal CDs in the hood.

This is the RIAA, going after intellectual property. Like a drug raid. And we know how well the drug policy has been working the past 50 years. Success all over the place. It's not the drugs or IP that this is about, it's about policy and tactics, those people in the underground economy, and all the societal problems that come with it. Do we really want to go down this path with IP, or figure out a business model that works with digital distribution, not against it?

Update: Jason Schultz in the comments corrects his misquote in the LA Weekly article. On his blog, he says what he meant was,

    ...that sending out squads of investigators to collect evidence against counterfeiters is traditionally what trade enforcement organizations like the RIAA are good at. They find the pirates, collect the evidence, and then turn it over to real cops for enforcement.

...and that he had no idea the reporter was calling about the RIAA doing literal raids. Abe Burmeister responds to the distinction between file sharing and CD trading:

    But really what is the difference between the two? One is structural, P2P file sharing involves a computer and broadband connection while alternative CD networks involve physical goods, that are copied not stolen. The other difference between the two is socioeconomic. P2P is a middle class act, requiring expensive equipment and connections. The extralegal CD distribution networks operate in far less privileged spaces. And they represent a valid attempt by these communities to route around the restrictions the RIAA is attempting to impose. But since it doesn't involve extensive computer use the EFF can't be bothered to defend.

He makes a very good point, and one that parallels what happens with drug prosecution and enforcement, when drugs like crack are punishable with far more restrictive sentences than cocaine, essentially reflecting who uses them and their socio-economic status. Course, the poor-folk get the short end of the stick. Though I would argue that there are also major organizations devoted to piracy, not just the small time folks noted in the article. I would disagree that EFF can't be bothered to defend CD distribution of copied music. I think instead EFF has drawn a legal line between these two types of music sharing, and in fact, before the first lawsuits against file sharers, they suggested that the RIAA should sue them. But I think a position they would have the most integrity with is that suing or raiding is untenable, that society would benefit overall from decriminalizing this behavior in favor of a business model that supports file sharing, makes artists money, no matter who does the distribution and by what method. Pushing more people, especially poor people with little resources, further into the criminal justice system, further into the underground economy, is a mistake those people can never recover from. There is no growth or advancement for a person in the underground economy, there is almost no chance to educate or buy a house or make a stake in society for themselves, their children or improve their neighborhoods. It's bad public policy and should not be supported at all.

Posted by Mary Hodder at 06:39 PM | Permalink | Comments (2)
January 14, 2004
Music Biz: Ringtones are 10% of the Global Music Market

Cell phone ringtones sales globally over the last year are up by 40% to more than $3.5 billion (via Wired). But I'm wondering, do we even need a song translated into a ringtone, if we can just play one or another MP3's on our phones, when a call or text message comes in? I mean, my phone plays music, why not just set up the music to play, or even a bit of the music, that I've already paid for, to ring me? Why does my ring tone have to be an electronic tone-quality to signify a ring? Why not just make my own, out of what I've already bought?

On a somewhat related note, Ernie Miller has a hilarious take on the double copyright issue brewing where two formats of the same music are contained on a single CD:

    Ah, the wonders and intricacies of copyright law. Many of the new "copy-protected" CDs on the market are so-called "double session" CDs that have two copies of a recording on the CD. One copy is in the traditional CD format so that it will play back on traditional CD players, the other copy is generally in a proprietary format for DRM restricted copying onto PCs and other devices.

So the music publishers want two copyright fees, even though the users are getting one song. Seems to me that the DRM and related hardware divides up where the song can be played, and so the CD maker is adapting to the fair use desires of customers who see that they are buying a song, and want it to play wherever they have a CD player. Just because there are multiple digital formats and hardwares that can play a song, doesn't I think, warrant the compensating of the copyright holder multiple times for the same song on the same CD. How very greedy of them.

Posted by Mary Hodder at 08:09 AM | Permalink | Comments (4)
December 19, 2003
Verizon Wins! Subpoenas Not Authorized

Just a quick note, as I'm working on something else at the moment, but good news!

From Reuters: Court Says Net Music Subpoenas Not Authorized

The RIAA has been using DMCA subpoenas to get subscriber's identities in order to sue the ISP's customers for copyright infringement because of file sharing. However, the subpoena process is heavily flawed under the DMCA, where there is no court oversight required for the subpoena, like there would be in a regular action. The District Court in Washington, DC has agreed with Verizon (see the opinion) that existing copyright law doesn't give the RIAA the right to get ISP customer information in the manner they have been under the DMCA.

    "In sum, we agree with Verizon that (the law) does not by its terms authorize the subpoenas issued here," Chief Judge Douglas Ginsburg wrote.

And from Wendy Selzer: "Internet users are the winners...." See Derek Slater for more in-depth analysis of the case and what this means. Derek suggests there is likely to be an appeal, but for now, this may cause Congress to step in to reevaluate copyright issues.


Via Donna (doesn't this sound like a lovely drink, something citrusy and ice-cold, that you might enjoy on a warm roof top at sunset in Rome while watching the glow fade across the tops of the Vatican and monuments like Vittorio Emanuel? Donna is like that, only better: smart, lovely, refreshing, and you feel so fortunate to know her!)

Posted by Mary Hodder at 09:11 AM | Permalink | Comments (2)
December 17, 2003
Infringement Schema

Someone has emailed the tags from an automated warning sent from Universal Studios about downloading copyrighted material. The email has been tagged with a bit of XML:

?xml version="1.0" encoding="iso-8859-1"?>
Infringement xmlns:xsi="http://www.w3.org/2001/XMLSchema-instance"
xsi:noNamespaceSchemaLocation="http://mpto.unistudios.com/xml/Infringement_schema.xsd">
Case>
ID>2750178/ID>
Status>New/Status>
/Case>
Complainant>
Entity>Universal Studios/Entity>
Contact>Aaron Markham/Contact>
Address>100 Universal City Plaza (1280/6)/Address>
Phone>818-777-3111/Phone>
Email>antipiracy1@unistudios.com/Email>
/Complainant>
Service_Provider>
Entity>NYC BRIDGED CIRCUITS/Entity>
Contact>/Contact>
Address>25 Broadway/Address>
Email>abuse@speakeasy.net/Email>
/Service_Provider>
Source>
TimeStamp>2003-25-10T01:39:48Z/TimeStamp>
IP_Address>[CENSORED]/IP_Address>
DNS_Name[CENSORED]/DNS_Name>
Type>BitTorrent/Type>
UserName>None/UserName>
Number_Files>1/Number_Files>
Deja_Vu>No/Deja_Vu>
/Source>
Content>
Item>
Title>Day Of The Jackal/Title>
FileName>The Day of the Jackal (1973).avi/FileName>
FileSize>1400961024/FileSize>
URL>x.x.x.x:6883/The Day of the Jackal (1973).avi/URL>
Type>Video/Type>
Item>
Content>
Infringement>

They even have their own schema:
http://mpto.unistudios.com/xml/Infringement_schema

Posted by Mary Hodder at 11:24 PM | Permalink | Comments (1)
RIAA the New Big Brother?

Check out Clay Shirky's latest: The RIAA Succeeds Where the Cypherpunks Failed

    It may be time to dust off that old issue of Wired, because the RIAA is succeeding where 10 years of hectoring by the Cypherpunks failed. When shutting down Napster turned out to have all the containing effects of stomping on a tube of toothpaste, the RIAA switched to suing users directly. This strategy has worked much better than shutting down Napster did, convincing many users to stop using public file sharing systems, and to delete MP3s from their hard drives. However, to sue users, they had to serve a subpoena, and to do that, they had to get their identities from the user's internet service providers.
    Identifying those users has had a second effect, and that's to create a real-world version of the scenario that drove the invention of user-controlled encryption in the first place. Whitfield Diffie, inventor of public key encryption, the trategy that underlies most of today's cryptographic products, saw the problem as a version of "Who will guard the guardians?"
    In any system where a user's identity is in the hands of a third party, that third party cannot be trusted. No matter who the third party is, there will be at least hypothetical situations where the user does not want his or her identity revealed, but the third party chooses or is forced to disclose it anyway....

In other words, the third parties are our ISPs, and with the DMCA subpoena problem, our identity is vulnerable to the likes of the RIAA or anyone else who grunts "copyright infringement," no matter how stupid or not true.

    The RIAA's successful extraction of user identity from internet service providers makes it vividly clear that the veil of privacy enjoyed by the average internet user is diaphanous at best, and that the obstacles to piercing that veil are much much lower than for, say, allowing the police to search your home or read your (physical) mail. Diffie's hypothetical problem is today's reality. As a result, after years of apathy, his proposed solution is being adopted as well.

Which brings us to the Darknet, which we've written about quite a bit before. So now we all have Waste accounts and trade secretly, and the resulting loosely bundled groups of people, using encryption.

Frankly, I believe that sharing copyrighted materials amongst *real* friends (you know, like taping a TV show and lending it to a friend) is legal fair use, and so small networks of friends that know each other, and recommend stuff, share it, falls into this category for me. That is not to say that sharing copyrighted works with all 60 million of your best pals on KaZaa is right, as I think that IS copyright infringement.

Posted by Mary Hodder at 09:50 AM | Permalink | Comments (1)
December 15, 2003
Creative Commons 1 Year Celebration

Last night, Creative Commons marked their first year anniversary with a party where Larry Lessig, Glenn Otis Brown and Chris Lydon among others talked about the many, many accomplishments over the past year, and played a wonderful flash animation about CC or here, particularly emphasizing the export of CC worldwide. One thing they mentioned was that all content online from the radio show, Tech Nation, will now be under a CC license, and they have had more than a million uses of the licenses over the past year.

The party was a great time to meet up with Stanford and Berkeley folks, artists and geeks, and those who support having balance between copyright and the public domain. I got to meet Joi Ito, whose sister I met at a conference last spring, and since she spoke about him in such a sweet way, I have wanted to meet him ever since. So that was fun. Also, the videoblog goddess (and otherwise all around goddess), Lisa Rein was there, taping, and presumably will have the video up on her blog soon.

Also, considering donating to Creative Commons here.

Update 121903: Check out Christopher Lydon's interview with Larry Lessig done just after the event (you can hear the last of us in the background of the audio interview). I gave Chris a ride back to Berkeley and he said he said he would get it up quickly, though he's been traveling, and he did!

Posted by Mary Hodder at 10:45 PM | Permalink
December 01, 2003
This Isn 't Your Father's FOAF

Teresa Riordan/NYTimes has this on the recent purchase (for $700k) of the Six Degrees patent, by Marc Pincus of Tribe and Reid Hoffman of LinkedIn. They say they purchased the friend of a friend (FOAF) patent because they didn't want anyone else buying it to use it against them, but they are also trying to negotiate with Friendster to become a partner/owner of the patent, though Friendster hasn't jumped in yet. Conversely, Visible Path is treating their processes for understanding people's network and connection habits as a trade secret, so that unlike patents where the process must be disclosed, Visible Path won't share how they do things ("We think that is a higher form of protection.") Visible Path says they operate differently than the Six Degrees patented method, because they evaluate the quality of FOAF connections verses the degrees between connections. At the end of the article, there is this prediction: "This industry [FOAF] is going to go in a thousand different directions," Mr. [Antony] Brydon said. "I think we're going to find that many of the things being protected today are completely irrelevant a year from now."

Somewhat related to that notion is this PC World article asking: will consumers change ip? Granted the examples given are the more commonly known ones such as the Verizon, et al cases with user's privacy in the balance over music sharing, but the question extends far further when you think about the ways we take technology, alter it or its intended uses or blend things never before blendable. Steve Lohr/NYTimes talks about this with Markets Shaped by Consumers where he discusses the ways consumers take technologies, find uses not intended by their creators, or cobble together solutions to problems in innovative ways. Among other things, he mentions the mountain bike, camera phones and text messaging, bluejacking, and FOAF networks like LinkedIn and Friendster.

The ways users shape IP via fair use, either directly by choice or because of the limitations through the architecture of the system they are using, and the issues surrounding consumer generated information, especially about themselves, raises questions of fair use and ownership of personal data and networks in a new way with FOAF networks. Note that this morning on NPR, Choicepoint was quoted as saying that in their system, users own their own data, not Choicepoint. And yet recently, Friendster changed its user policy to state:

    Friendster owns and retains all proprietary rights in the Web site and the Service. The Web site contains the copyrighted material, trademarks, and other proprietary information of Friendster, and its licensors. Except for that information which is in the public domain or for which you have been given written permission, you may not copy, modify, publish, transmit, distribute, perform, display, or sell any such proprietary information.

I take this to mean they believe they own the collective data, and without clear personal data ownership laws, I suppose we are subject to this, unless there is a case or new law that changes this arrangment.

Danah Boyd of SIMS was in last Thursday's Circuits section (by Michael Erard), and Peter Lyman is quoted, too. The article discusses the social issues and analog metaphors Danah studies about FOAF networks. While our analog FOAF networks are subject to social norms we can see, touch and control in different ways than those online, there are interesting issues in connecting one person's data and network to the next. Collapsing the analog social norms causes problems, when people from one network you belong to can suddenly see another digitally, but there is also an issue which will probably arise more in the future, where the blending of many user's information, both personal and created, or personal networks, creates something new. It is digital media in the most personal of ways.

As mentioned before, how do you do the IP when "It's the collective I.Q. of the Internet coming to your aid," [said James C. Spohrer, director for services research at Almaden].

So, my father's FOAF network (analog, of course) is extensive. He keeps in touch, even in retirement, with thousands of people, via written correspondence through email and letters, and for 42 years, has maintained a handwritten spreadsheet organizing the 3-4k handwritten xmas cards he sends out to his friends each year (there are more in his network but they don't necessarily receive these cards, and also, my parents visit with many of these people regularly, scattered around the world, for various reasons that are now mostly social). I don't know that Friendster or LinkedIn, etc., clunky as they are now, could accomodate or make sense of the multiple reasons and associated meanings of his relationships, or what is possible between his connections through muliple networks. But I'm sure he's never thought about who owns his data and networks, and the shifts over time these networks have experienced, and the information linking they accomodate. I'm sure he would find it bizarre but also interesting to contemplate that using a FOAF network might require this, where using one might release control over his life's work as one of the most networked people I know.

Dave Weinberger on FOAFs, the privacy aspects, and funny ways we use these online networks: putting the shill into social or Leveraging Mere Acquaintanceships for Business Success since 2003.

Posted by Mary Hodder at 08:15 AM | Permalink | Comments (1)
November 12, 2003
Bluejack Buzz

For, you know, right after you get the gsm version of the Treo 600 in the mail (just out! ..and why did they make us wait so long after the cdma version has been out a month???). Course, you'll be lucky to find another bluetooth phone in the county to do it (we barely even have any in the US; see how standards issues really cramp your otherwise goovy style?). But hey, "I like your tie... it's soooo blue."

MORE...
Posted by Mary Hodder at 03:34 PM | Permalink | Comments (2)
November 09, 2003
RIAA Lawsuit Party

Last night in Tribeca there was a dance party for "Tim Davis, a young NYC artist who got sued by the RIAA for downloading. He had a remarkably small number of songs at issue, yet because he also teaches ONE photography class at the college level as an adjunct "he should have known better." As such, Tim's being held more accountable than other defendants." -Jay Flemma/Pho List.

Good party, at the art studio he shares with four other artists. Great music. Funk. Real old fashioned Technics 1200 turntables with real old-fashioned 45s. The highlight was the terrific dance party DJ'd by Bambouche of the Vanguard Squad. About 7 of us went, and it was really fun. Great dancing. Interesting mix of people. Tim's cool, and if people can, send him a donation. His "Free Timmy" T-Shirts (black, with hot pink writing) are well worth the $25, which he sold last night to raise money, and can probably be had via email at info at davistim.com.

UPDATE 11/10/03: Tim's website has information for making donations. He's had to pay $10,000 to the RIAA for 300 songs, much more per song than the rest of the people settling for more like $2-3k, for over a 1000 songs, and he doesn't have a lot of money.

Updated 12/5/03. Jay Flemma writes that the payment was less, (the 10k is what Tim says he's "in the hole for") "call it around 7K and 'well under 800 songs...'." Still, Tim's had a tough time and it would be nice if folks wanted to buy a t-shirt or donate to his fund.

Posted by Mary Hodder at 07:59 AM | Permalink | Comments (1)
November 07, 2003
Shades of Things to Come With Compulsory Licensing

This issue has been addressed here, and elsewhere, before, regarding compulsory licensing, in a theoretical way, because we don't have compulsory licensing currently. But those who are forced to pay under a compulsory licensing might object, as these students have to the new Penn State system:

    PENN STATE STUDENTS SNUB NAPSTER DEAL
    Some Penn State University students are protesting their college's new deal with the Napster music service, saying the deal is not an appropriate use of funds they are required to pay. The new service was announced yesterday with considerable fanfare, touted by university officials and the company as a way to provide students with a legal alternative to downloading music illegally from Kazaa or other file-swapping networks.

From John Borland/C|Net. Although he does point out that the $160 per semester fee for technology services, already in place, will cover this new service with no increase in fees. But students are complaining because some part of that fee will go to Napster and they don't want to participate. It's what had been predicted with compulsory licensing, and now that this form of CL is in the works, we need to think carefully about these objections and other aspects of CLs for the full Internet populace. This might be a very interesting test case as to what would happen if CL's were adopted across the Internet.

Also, check out Derek Slater's More Crummy Reporting on Penn State's Music Service, What Price is Wrong and My Letter to Pho on PSU/Napster. Frank Field notes the /. discussion on this issue, where it was pointed out that Barry Robinson, Senior Counsel for Corporate Affairs for the Recording Industry Association of America, Inc., is on the PSU board.

Posted by Mary Hodder at 06:56 AM | Permalink
November 06, 2003
Penn State and Napster Team Up to Make Legal Music Available to Students

Napster PR here. The system as defined by them:

* Students living in residence halls at a dozen Penn State campuses will be able to participate initially.

* Unlimited streaming of music files will be available from Napster's inventory of more than 500,000 songs.

* Tethered downloading is included at no additional charge. This means a student can download and keep the music files on up to three personal computers. These songs can be burned to CDs or transferred to portable devices if purchased for 99 cents each.

Looks interesting. Apparently, they are also looking at deals with other schools. I'm swamped today and so can't really get into this or the patent issues with schools streaming content. But I'll try later.

Posted by Mary Hodder at 01:23 PM | Permalink
November 03, 2003
EFF Represents the Online Policy Group v. Diebold, Inc.

EFF and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School are seeking a court order against Diebold. Diebold, the maker of an eVoting system that many a Registrar have purchased, including our own Alameda County, has, as noted here before, lost control of some internal memos (someone hacked into get them). Diebold has been serving C&D's (Swarthmore, as well as one here at Berkeley, and Derek Slater/Harvard received one) to ISP's of hosters of the memos, and students have been protesting, because they, we, believe Diebold is in the wrong in trying to suppress information about security flaws in the eVoting system. The memos are all over now, and on file sharing networks. Diebold has even claimed DMCA copyright violations for those linking to the memos. And finally, after two+ weeks, big media is paying attention.

John Schwartz/NYTimes front page today: File Sharing Pits Copyright Against Free Speech.
Steven Levy/MSNBC and Newsweek: Black Box Voting Blues.

/.ing, and Donna Wentworth has all the links.

Update: Declan McCullagh/C|Net: Students buck DMCA threat. Also, Parker Thompson has started blogging with Minfesto. He's one of the students posting Diebold memos, and has this: Brittney Spears Don't Vote. Parker also writes that California is reconsidering Diebold's touch screen system. In particular, check out this CA Task Force Report (pdf) on the systems. Glad to have you in the blogosphere, PT!

Update 110403: Siva Vaidhyanathan has this on Diebold: voting problems in Houston, and a write up on Brian Lehrer's public radio story. He says that the story was poorly done, with a National Journal reporter as the expert interviewed. I just read the CNN/AP article: California delays certification of some electronic voting machines, and found it missed the context of the past few weeks, where students at various schools have been mirroring the Diebold memos and keeping this issue out front, at some personal risk, which I think has helped push questions of Diebold's security. When media point out that younger readers don't read papers anymore, and then I see this, I think, why should younger readers read the paper, when their involvement it totally left out, or when it is included it's often dismissive in tone of those covered (I do know why they should read papers, but still, you get my point). This is not always true, and certainly Declan's article is not written this way. But really, if you want readers of a certain demographic, think about including them, because they are apart of the story!

Posted by Mary Hodder at 04:02 PM | Permalink | Comments (2)
November 02, 2003
Boomers Saving the Traditional Music Biz?

Chris Nelson/NYTimes have a piece on the RIAA's recent reliance on boomers as continued customers, because they do not do much online downloading of music, and do more traditional (read: retail store purchases) buying of music (read: more expensive CDs of artists over 40). So retailers and the record companies are catering to these interests. Though it does make me think that retail music selling is becoming a niche market for those less technically adept, and less hip, maybe, compared to the 18-24 market. The music industry sees the boomer group as underserved, and they probably are. But this is also a way to hold onto a business model that is slipping into the past, along with the industrial era, like the horse and buggy market did with the offering of the horseless carriage. It'll work for a while, but at a certain point, it's going to be very, very niche.

And in the meantime, will the recording industry get hip to the fact that they may no longer be in the music unit biz (a single or a cd), but rather are in the biz of selling an audio information experience over as many distribution mechanisms as exist, catering to multiple age groups with a wild range of interests, with greater expectations for flexibility, quality and breadth of selection? We've gotten a taste of the heavenly jukebox, and no matter how retro they go, we're not gonna forget it.

Posted by Mary Hodder at 03:00 PM | Permalink | Comments (1)
November 01, 2003
80 More RIAA Lawsuits, MIT Shuts Down the Music System

The RIAA has filed 80 more lawsuits against those who share (for others to download) files. This time, though, the RIAA started by notifiying 204 people first, and then 124 decided to settle out of court. The remaining 80 were then sued.

Also, MIT had to "temporarily" shut down the innovative new analog music via cable system announced last Monday. The makers of the system, called LAMP for Library Access to Music, had negotiated licenses through Loudeye, but the Harry Fox agency who was part of the negotiated licenses said the agreement wasn't complete, so MIT closed it down until they figure out the licensing situation.

Later 11/02/03: Frank Field points here:

    While the Slashdot discussion is the usual combination of interesting thought interspersed with uninformed drivel, this comment speaks to the real problem I see at MIT:

to this /. comment:

    forget the loopholes (Score:5, Interesting) by bonds (701580) on Saturday November 01, @07:31PM (#7368653)
    We don't need newer and more creative ways to sidestep our poorly conceived IP laws, we need new laws.
    I for one would be grateful if places with clout, like MIT, would spend their resources advocating for better policy rather than engaging in legal contortions. If MIT, Harvard, Stanford, UC Berkeley, Princeton, Yale, NYU, etc. threw *serious* support behind good policy (like the Eldred act [eldred.cc], IMHO), the RIAA would find it much harder to have their way with congress. Admittedly, uniting these institutions of intellectual debate is much easier said than done, but they are uniquely equipped to put forth balanced proposals that address a broader social agenda than would ever emerge from an industry lobby. We could really use someone with the clout, resources, intelligence and neutrality of MIT to help write (and right) the rules of the game that are fair to *all* the stakeholders, not just the RIAA. [emphasis added]
    What we are finding is that leaving the fox (the RIAA) to guard the hen-house (IP policy) is great for the fox and bad for everyone else.

Frank again:

Frank says in this post that he is leaning toward believing the RIAA had something to do with the MIT suspension of LAMP. But we don't really know at this point what the combination of factors was, beyond the licensing dispute. My hope is they manage to get this analog system back up and running. But the /.-er is correct: the real issue is IP policy tilting so far in favor of the incumbent copyright owners. More balanced options between the extremes of stealing by users and total ubiquitous control by copyright holders are needed. And, his idea that universities are the ones to push back for reform of the copyright regime is terrific. The schools involved are credible, reasonable institutions that could band together to demand a more equitable and fair copyright policy between all the parties involved.


Posted by Mary Hodder at 08:25 AM | Permalink
October 30, 2003
Music Biz, Round 2

See David Pogue/NYTimes on Paying the Piper, Round 2: The Repertory Grows about the last year of music industry attempts to sell online, and efforts going forward. Same issues as always: price, convenience in user interface as well as with the product once you buy it (read: DRM restrictions) and selection.

Oh, and catch Ed Felten's look at a Washington Post article that talks about SunnComm and a copy-protected Anthony Hamilton CD which an Amazon reviewer noted had annoying DRM, and the reporter had trouble accurately describing:

    And how can the reporter let pass the statement by Jacobs implying that only "determined hackers" would be able to thwart the technology? We're talking about pressing the shift key, which is hardly beyond the capabilities of casual users.
Posted by Mary Hodder at 07:31 AM | Permalink
October 29, 2003
Online Music Biz Still Shaky

Neil Strauss/NYTimes: Online Music Business, Neither Quick Nor Sure..
In the last month the music-downloading landscape online has shifted once more with five major events, not all of them good.

    ¶Apple Computer made its iTunes player and music store available to PC users.
    ¶A legal version of Napster emerged. [today, in fact.]
    ¶A new download store called Audio Lunchbox announced that it would open on Halloween.
    ¶Musicmatch added an online store to its music player.
    ¶EMusic added restrictive rules to its music subscription service.
    In a striking lack of originality, every new service above is in some way a designer imposter of iTunes, which sells songs for 99 cents each and albums for $9.99.

He also talks about Rhapsody, although I have to say that since my last post on that service ($9.95, all you can eat of what they offer), I've become less enamored. The selection is limited. But it's still a nice interface and they do have a lot of stuff.

Posted by Mary Hodder at 09:33 AM | Permalink | Comments (1)
October 27, 2003
Cable TV Music Distribution System at MIT

John Schwartz/NYTimes report that With Cable TV at M.I.T., Who Needs Napster? Josh Mandel and Keith Winstein have created a new way to share music. On NPR early this morning, they interviewed a student who said that the system didn't have that much music, but still, it's innovative. It has to be, the get around all the crazy aspects of the copyright regime. The Libraries Access to Music Project was funded by a grant from Microsoft and allows students to listen to analog versions of 3,500 CD's worth of music, in 80 minute blocks on a single channel, which a student will then program. Apparently, the quality is better than FM radio, but not as good as CDs.

Posted by Mary Hodder at 09:01 AM | Permalink
October 18, 2003
Free as In Freedom, Not Beer (or Music)

John Schwartz/NYTimes are reporting that the music industry has decided to warn the next 204 lawsuit targets:

Cary Sherman, president of the RIAA, said "we want to go the extra mile and offer illegal file sharers an additional chance to work this out short of legal action." This new policy was announced at last month's Senate hearing. Senator Norm Coleman (MN) said he wished it hadn't taken hearings to bring this sort of consideration about. Now how about considering judicial review for all subpoena's for user information for those they intend to sue?

In the meantime, Epeus Epigone talks about Steve Jobs' comment about iTunes "editing tactics": At the iTunes Music launch, Jobs said something very wrong - that record labels should be the arbiters of taste - that they edit for our own good, and that unsigned bands need not apply.

The key point of digital media is that we can all edit, so I edited him: video file.

It's interesting, because we all know, time and again, that attempts to control or limit the network result in loss of business. And then you leave yourself wide open for disruption. Biz 101. It's not like the Internet offers huge barriers to entry for offering interesting music over a website. And considering Microsoft's Q&A (and other media offerings) on iTunes (I'm shocked to hear MS is down on iTunes - kinda snarky, even) after they've added Windows support, (link from Ernie Miller), Apple could remain more competitive by embracing the rip, mix, burn philosophy once again, allowing any music into iTunes, regardless of whether it was produced by an RIAA affiliate. What would it cost them? Very little. It seems anticompetitive as well. Is this the result of some exclusionary agreement between Apple and record companies in exchange for industry music? It would be interesting to find out if Steve's spin on "editing" out the smaller music is actually about appeasing the music industry. Hey Steve, innovation is cool and it leads to more cool stuff, like the Motorola C350, where you can mix your own dance tracks anywhere for Groov'n On The Move.

Ernie also points to an open source audio media player/ripper. Good stuff.

Posted by Mary Hodder at 08:04 AM | Permalink | Comments (2)
October 13, 2003
Clay Shirky on File Sharing

File Sharing Goes Social

This month's essay concerns the way the RIAA is creating environmental pressures that alter the design of file sharing networks, and how the current attacks on Kazaa et al are moving file sharing into socially bounded cells. -clay

The basic idea is that we've gone from efficient, centralized systems like Napster, to less efficient, decentralized systems like KaZaa and Gnutella, to the next generation of networking tools similar to those used for secure corporate collaboration. The Darknet perhaps? This would be the Darknet that is about private restricted file sharing networks where there is a reduced amount of content, but users are friends and family who know each other and share and recommend within that closed network, where social norms dictate the sharing protocols.

Interesting to note though is the idea that the most popular songs exist on the most harddrives, while more obscure (and interesting) works are hard to find. Small private networks will probably make this more true. So maybe a few small networks will specialize, and people may have a couple of different private networks that reflect different tastes and genres, but it may be that most networks have only the most popular stuff. The question is, will the RIAA go after these small networks? Will we have infiltrators at parties trying to get an invitation into our Waste networks? Do we become like East Berlin in the 80's, where everyone suspected everyone else as being a spy? Husbands and wives, each working for different operatives and never telling each other, maybe because one specializes in early country, and the other in hip-hop? Oh my!

Posted by Mary Hodder at 07:27 AM | Permalink
October 12, 2003
The Heavenly Jukebox Cont'd

Tonight I went to a dinner party at some friend's house, and in between the cold dry sake and an obscene amount of yellow tail hamachi, there was more music than we knew what to do with. These are friends that until six months ago, had been sampling all sorts of free stuff on P2P networks. Not all of it was good or complete, but they buy a lot of CD's and wanted to try stuff out first, and they wanted the convenience of mixing up thousands of songs for days of play, or a few seconds as the case may be.

Anyway, tonight, we played around with Rhapsody which was totally great and lots of fun. And my friends are proving my point that if you make it easy, cool, give decent information about the music and make it cheap, people will abandon the free stuff for something much more professional. Sorting by artist, title, genre, album, play lists we made up, we streamed Thievery Corp, Gotan and Ladytron through the first course, and then went from cool jazz, to Chopin and Mozart for the second, and then we veered into Bah-bra and Barry Gibb, the GoGo's (who can resist skidmarks on my heart!), Supertramp, Artie Shaw, Radiohead, Elton John, Frank, Ben Folds Five (Kate!), Jon Cutler, the Replacements, for about three hours of dancing, everybody was in on it, clicking and sampling. There is also stuff you can't search for or directly stream, like the Beatles, on their "radio stations."

So one of them nailed it, when we turned it off to go out for dessert: "..so the question for America today is how will America get its music? I mean how will you get your ya-yas? You know, like go the good stuff to rock out to?" Okay, he was kinda baked, so it's overstated, but you get the point. He's not an IP junkie, he is a former musician and now at a BIG corporation, but he wants the stuff easily and he wants to pay something reasonable. So this is his question. And for him, $9.95 for Rhasody's content is almost there, so although he said they have a lot of cool old stuff, there's not as much new, he thinks it could be a lot better. But he was excited to try out new music they do have to see about buying it, or downloading, and he'd hooked it up wirelessly to all the other rooms from his main computer (every room has its own remote for that set of speakers, so it works well...).

So Rhapsody is almost there.

Now, if we could only make playlists and share them with others across our network within Rhapsody, mix things and send them to people, make our heavenly jukebox an expression of ourselves for others....

Posted by Mary Hodder at 12:09 AM | Permalink | Comments (10)
October 09, 2003
Shift Key Again

Earlier today I mentioned Alex Halderman and his paper (pdf) on the CD protection scheme developed by SunnComm, which can be cracked! yes cracked, by holding down the shift key while putting the disk into your computer. Well, Donna writes that SunnComm is taking legal action against Halderman because he has based his paper on "erroneous assumptions" and because he has violated the DMCA.

"No matter what their credentials or rationale, it is wrong to use one's knowledge and the cover of academia to facilitate piracy and theft of digital property, said SunnComm CEO Peter Jacobs. "SunnComm is taking a stand here because we believe that those who own property, whether physical or digital, have the ultimate authority over how their property is used."

Really? How about the copyright balance, where things like fair use (and the right of first sale) are involved? We are talking about a copy protection that will be sold on lawfully purchased CDs, that users might want to play on their computer CD players. Is it fair use to space shift? While this question has not yet been definitely answered by legislatures and courts, a private company is effectively answering that for us.

More From Donna/Copyfight:
Later: Fred von Lohmann: "In America today, scientists shouldn't have to fear legal action for publishing the truth. Based on the apparent weakness of its technology, perhaps SunnComm should be hiring more Princeton computer scientists, instead of threatening to sue them."

Later #2: Ernie Miller @ LawMeme: "I do not know what 'device' Halderman could possibly have been trafficking in, unless they plan to go after him solely under section 1201(a) for actually circumventing such a device (a first as far as I know)."

Later #3: Dan Gillmor: "Plainly, [SunnComm's] aim is to silence any debate over the apparent lameness of its technology. This shouldn't be allowed to stand. I hope the EFF and other organizations will raise a defense fund; I'll contribute."

I decided to call SunnComm directly and complain about their abuse of the First Amendment and academic research: 602-267-7500. While they have the DMCA on their side, does not mean is it right for them to stifle academic freedom or the right to publish. The law is wrong here, as are SunnComm's actions. Where does this leave us if research is squashed, and information such as this just ends up being passed around, from user to user, with no research or writing done on these DRM systems. Where does that leave cryptography research? I am not advocating the mass breaking of laws, as researchers need to be sensitive and professional in their work, but there is something very wrong with the DMCA when this kind of thing happens.

/. discusses. And Alex gets interviewed.

Posted by Mary Hodder at 02:28 PM | Permalink | Comments (1)
DRM: Fade Does Just That To Games, But SunnComm Loses with the Shift Key

New Scientist has a piece on Fade, a new protection system for games developed by Codemasters. Fade forces the copy of a game to slowly deteriorate, so that while the game is in play, the player slowly loses control over character, or weapons or cars, whatever the player is doing in the game. The idea is that pirated copies allow users to play for a while, but once the person is "addicted," the game stops working, forcing the person to go out and buy or rent the game lawfully.

The idea intrigues Alistair Kelman, an independent lawyer who specializes in copyright: "Fade is entirely in keeping with the spirit and great traditions of copyright." He points out that books tend to deteriorate with use and this prevents the secondhand market from competing with the market for new books. Why not the same for software?

The difference is that the book is still readable, even in used form, all the way to the end. If Fade is used just to affect pirated copies of games (they plan to release a DVD version next year), fine, but if it begins to be used on lawfully purchased games, DVD's, music, whatever, I think people will not like it. DRM often conflicts with people's ideas of what they can do with their purchases. Example, restrictive DRM that does not allow them to make fair use of the work has infuriated people, causing lots of frustration, bad press and in some cases, damage to PC's (from some CD protection devices sold recently).

On the other hand, if Fade works like SunnComm's CD copy-protection technology, which can be disabled by holding down the shift key, as reported earlier this week by Alex Halderman (a student of Ed Felten's), it may not be worth anything.

Hiawatha Bray/Boston Globe has SunnComm's response: ''There's nothing in his report that's surprising,'' said SunnComm president Bill Whitmore. ''There's nothing in the report that I'm concerned about.'' Whitmore said his company's system is simply supposed to give honest music lovers a legal way to make copies for personal use, not to stop large-scale piracy.

As Ed Felten notes, if the goal is to do as Whitmore says, all that's needed is to give people ordinary, unmodified CD's. The same may be true for Fade games, because the really big pirates that put a dent in the biz, will figure out a way around it. They are pirating the games after all, so anti-circumvention laws don't really have much effect if they can get around the software protection scheme. And then all you succeed in doing is frustrating the less technically adept, regular paying customers.

Posted by Mary Hodder at 07:25 AM | Permalink
October 06, 2003
Trying to Sell CD's by Adding Extras

So the record companies are finally going with the flow, trying out some new tactics, Trying to Sell CD's by Adding Extras according to Chris Nelson/NYTimes.

Bundling an album with a raft of value-added extras - while charging just a dollar more than the standard price for a CD - may sound like a costly move for P.O.D.'s label, Atlantic Records, part of AOL Time Warner. But it is a testament to just how desperate music companies are to stoke consumer interest and reverse a three-year sales slump by pulling fans away from making free downloads of music from Internet file-trading sites.

While the P.O.D. album, scheduled for release Nov. 4, is unusual in the amount of extra material it will carry, it is just one album in a flood of new CD's promising extras. Recent discs from artists representing a broad cross section of genres - from R.& B. diva Mary J. Blige to singer-songwriter Elvis Costello to punk band Pennywise - have come with extra material.

The newfound zeal to include extras on music CD's might just be working. On the latest weekly Billboard 200 album chart, the top six spots are held by albums making their first appearance on the chart. All of those artists - OutKast, Dave Matthews, Limp Bizkit, R. Kelly, Obie Trice and Nickelback - include some type of bonus with their albums: an EP of extra songs, access to online content, a chance to meet the musician or two CD's for the price of one.

Others like Vivendi are doing it, as some retailers are trying new things (like customer service - how 'bout that) with knowledgeable sales people and places to hang out and listen to music before buying, seeing as the merchants have little control over the merchandise itself.

Enticing customers is even more difficult when the music industry's main physical product, the CD, has become increasingly unimportant, particularly to young people who have grown up with music as digital computer files. "My 17-year-old daughter loses the jewel boxes as fast as she can," said John Esposito, president of WEA, AOL Time Warner's music distribution arm, referring to the plastic cases that hold CD's.

Go figure. Seems like they have a ways to go before they get that CD is a losing medium. Maybe Esposito should try usability testing his kids. People want flexibility, portability, ease. CDs are awful, they scratch, they peel, and you can't mix up 200 songs and play them in random order on the cheap the way you can with electronic media. I ripped all my CDs years ago and I would never go back. It's so much more fun this way. And yet, given the extras, I'd buy a CD verses buying downloads, and then rip it for playing with all the other stuff I've already ripped.

Posted by Mary Hodder at 12:53 AM | Permalink | Comments (1)
October 05, 2003
/.

We've been slashdotted (out of date info) on the RIAA subpoenas. This post. I'm updating it now, but if anyone has more up to date info on the current number of subpoenas, please let me know. Thanks.

Posted by Mary Hodder at 08:14 PM | Permalink
Even the Greedy and the Oafish Enjoy the Protection of the Law. But Do We Have to Give Up Privacy To Make Things Fair?

Daniel Akst/NYTimes: Where Nobody Knows You're a Music Thief, on the internet:

If it's a place where nobody knows you're a dog, as a New Yorker cartoon once said, then it's also a place where nobody knows you're a crook, either. Even you may not know. Anonymity allows honest people to sustain a higher level of dishonesty without guilt...

After which he goes on to say that people rationalize stealing copyright protected works because they are not offered online for sale, the record companies charge too much, and are otherwise evil, and this is no excuse for stealing. He is right. However, those same companies are the ones who've lobbied Congress to make copyright law slant in their favor. That is the real issue, and in need of some major redoing (think the subpoena process under the DMCA as just one example of the ridiculous situation we currently have.)

He goes on:
The absurd Robin Hood narrative that has sprung up around music sharing only obscures what is happening: that a large group of mainly middle-class individuals are not just breaking the law, but also attacking the legal concept that is essential to freedom and prosperity in the information age.

Yes, and the whole copyright agreement (we give you the monopoly, you must deal responsibly with it, is out of balance...) needs work. Stealing is not okay. But neither is the current copyright regime. That regime needs to change or it will kill the freedom and prosperity of the information age because it locks information property (that word is really not right for this discussion, but until I find a better one...) down so tightly that fair use, scientific research, innovation and competition get run over.

Mirror, mirror on the wall, what's the fairest thing of all? The answer is probably authentication. Sooner or later we will need to know who everyone on the Internet is, and who confirmed their identities. Internet access providers who admit unauthenticated users will have to be shut out, even if that means shutting out whole countries.

One of the terrific things about the internet is our ability to be anonymous. Regarding our consumption of intellectual materials, this is critical. The idea that all need be revealed just so that copyright holders can count every unit is ridiculous, corrosive to the democracy and totally unnecessary. He is suggesting we lurch into the totalitarian.

In such a world, there would be no doubt about who was violating copyright laws or otherwise misusing the electronic commons. It's sad, I know. The ability to shed one's identity online seemed a dream for a while, but as the poet Delmore Schwartz reminds us, "in dreams begin responsibilities."

There are other possibilities, as the recently evolving discussion on compulsory licensing and other methods for paying artists for their works proves, and I wish Akst would have considered this before reiterating the fallacy that it's either privacy or ... {security, copyright, whatever}. We can pay artists, make an honest system, do the right thing for a healthy internet, and keep our privacy. The discussions around these issues are worth the effort, to find something better than what we have now, that doesn't hurt the public and the commons even more so than the current copyright regime has.

Posted by Mary Hodder at 12:05 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 19, 2003
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 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 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)
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
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
August 29, 2003
Ben Affleck on File Sharing ...

(and he's a file sharer!) Via Tech TV. The video is here.

He's advocating a flat fee subscription system so that people will pay once (a year? seems too long) and then listen to all music, new and old. He also says that the industry has been slow in recognizing the changes in their market and technology. Suggests the movie industry get with it as well. Who knew Ben was so hip? And so geeky.

Thanks to Jason Schultz for the pointer.

Posted by Mary Hodder at 07:02 AM | Permalink
August 28, 2003
RIAA Reveals "Tracking" Methods To Find P2P File Sharers

From AP/Ted Bridis. The article says these are methods to track downloaders, but I was under the impression that at least for now, they are tracking people acting as uploaders by posting files, not downloaders.

Rich Kulawiec says, "Wow. The RIAA has discovered checksums and the Unix/Linux 'sum' command." Wouldn't it be terrific if the RIAA used some of this brainpower to make good legal download services, using a nice easy interface offering a wide range of music at a reasonable price, compensating artists fairly and making it cooler to download legally than not to do so? Course there would always be a few shoplifters, but that's the cost of doing business across many industries.

Posted by Mary Hodder at 07:31 AM | Permalink
August 27, 2003
EFF On RIAA Subpoena Stats

UPDATE 10/05/03: EFF info here says this: Our database was last updated Sunday, October 5, and currently has 1,568 subpoenas. Note that if you use the EFF database to search your own file-sharing handle or IP address, they do not log *any* searches or information that can be traced back to you. For more info on subpoenas and how they work under the DMCA look at this.

ORIGINAL POST:
EFF's database of RIAA subpoenas sent to obtain identities of suspected file sharers has just been updated with PACER records through last Friday -- 1145 subpoenas. According to Wendy Selzer:

Here are some aggregate stats from the set:
10 universities, among 40+ ISPs (there are multiple names, not to mention mere trademarks, referring to some ISPs). Comcast, SBC, Time Warner, and Verizon lead the pack of ISPs. KaZaA is far and away the most common filesharing service scanned.

Universities:
6 New York University
4 Bentley College
3 Boston College (dismissed)
2 Northeastern University
1 Massachusetts Institute of Technology (dismissed)
1 Loyola University Chicago
1 Loyola Marymount University
1 DePaul University
1 Columbia University
1 Boston University

ISP Recipients (including unis):
372 Comcast Cable Communications, Inc.
148 Time Warner Cable
143 SBC
108 SBC Internet Communications, Inc.
87 Verizon Internet Services, Inc.
85 Charter Communications, Inc.
32 RCN Corporation
32 Adelphia Communications Corporation
26 Cox Communications, Inc.
20 GTE.Net LLC (d/b/a Verizon Internet Solutions) Verizon Avenue Corporation Verizon Media Ventures, In
12 EarthLink, Inc.
7 Mediacom Communications Corporation
6 Verizon Internet Services, Inc. and GTE.Net LLC (d/b/a Verizon Internet Solutions)
6 New York University
6 InterQuest Communications
5 GTE.net LLC (d/b/a Verizon Internet Solutions)
4 Earthlink, Inc.
4 Bentley College Academic Technology Center
3 Verizon lnternet Services, Inc.
3 Insight Midwest, L.P.
3 Boston College
2 Verizon Media Ventures Inc.
2 Sprint
2 San Bruno Municipal Cable
2 Northeastern University
2 CSC Holdings, Inc.
2 CenturyTel Internet Services, LLC
2 America Online, Inc.
1 Verizon Avenue Corporation
1 University of Southern California
1 Speakeasy, Inc.
1 Qwest Communications Corporation
1 Pacific Bell lnternet
1 Massachusetts Institute of Technology
1 Loyola University Chicago
1 Loyola Marymount University
1 Greenville Electric Utility System (GEUS)
1 DePaul University
1 Columbia University
1 Boston University
1 BlueMarble Telecom, LLC
1 BellSouth.net Inc.
1 AT&T Worldnet Service
1 Armstrong Cable Services
1 America Online
1 Adelphia

Filesharing Service:
1058 KaZaA
28 iMesh
18 Grokster
13 Gnutella (Bearshare)
11 MP2P (Blubster & Piolet)
10 Gnutella (Limewire)
4 (blank)
2 Gnutella (Shareaza)
1 Bearshare

Posted by Mary Hodder at 08:45 PM | Permalink | Comments (7)
August 25, 2003
Customer as Enemy?

Thanks so much for reading my column, but I have to ask: are you a thief? I need to know because Technology Review reserves the right to sue you if you reproduce this intellectual property without our express, written approval. By the way, this publication uses "smart paper" with patented steganographic technologies explicitly designed to track unauthorized scans or photocopies of my column.

Michael Schrage/MIT Tech Review, in The Customer as Enemy (sub req) (htm), writes about the differences in viewpoint between customers and content providers. Software companies and RIAA members are improving their techniques for monitoring content users, and some customers are responding by choosing Linux over Windows. It's not yet clear how the music and movie customers are reacting to this in their purchasing habits. But in all areas of intellectual property use, the customer as enemy mentality is prevailing and may prove a "disincentive to embrace innovation." In the short term, this may be good for the incumbent companies who implement these policies and monitor and shape markets, but in the long run, they may be closing off markets, new unthought-of uses, and the technological innovations a small percentage of tinkering techie customers do as a matter of course, thereby losing big.

MORE...
Posted by Mary Hodder at 08:16 AM | Permalink | Comments (4)
August 22, 2003
Is the Music War Becoming Like the Drug War?

Jon Healey/LATimes explains more on this: Man Pleads Guilty to Web Music Bootlegging (htm). It makes you wonder, though, about whether the latest from the RIAA/DoJ will cause music sharers to become like drug dealers, entrenched, and very difficult to stamp out. While not physically harmful as drug addiction is, drug selling/file sharing will never be completely eradicated because there will always be a market. Does file sharing enter the same realm as drug selling in the current subpoena climate? So do we sue everyone who file shares? Or make nice and find a market solution?

Overheard at a park bench at the pond in Central Park last week: 20ish woman on cell phone saying "...well I don't want to buy the CD because 90% of it's crap. I just want one song, so I stole it because they wouldn't let me buy it. But they are sending out 75 subpoenas a day! .... I know, I don't want to get caught downloading either but why don't they just let us buy it?" I didn't bother to explain that the RIAA is going after uploaders now, not downloaders.

Posted by Mary Hodder at 09:37 AM | Permalink | Comments (1)
Berkman and G2 On Copyright and Digital Media

The Berkman Center and Gartner/G2 have jointly published a white paper on Copyright and Digital Media in a Post-Napster World (pdf). Check out the last page, which has a set of scenarios for what might happen in the future. It looks good. They say, "the paper is aimed at extending our understanding of the current landscape and unresolved questions related to the distribution, use, and control of digital media."

Derek Slater had a hand in it, too.

Posted by Mary Hodder at 08:18 AM | Permalink | Comments (1)
August 09, 2003
DRM Systems

Fredrik Wallenberg and Rachna Dhamija at SIMS are presenting A Framework for Evaluating Digital Rights Management Proposals at the First International Mobile IPR Workshop: Conference of Rights Management of Information Products on the Mobile Internet in Helsinki in a few days. Their paper evaluates and proposes DRM schemes for compulsory licensing and other proposals, which Pho, and a few in the others in the blogosphere have been discussing.

Note: I'll be traveling the next few days, but do have internet access on the road and will try to post.

Posted by Mary Hodder at 07:06 AM | Permalink
August 07, 2003
Compulsory Licensing Cont'd: Ernie Miller on Pho, In Response to Derek Slater

Derek, in response to my Pho post on the gaming of compulsory licensing systems and watermarks, writes this (my post is included) on Fisher's latest. (see this for more of the conversation over time. It started at Greplaw.)

And Ernie responds 07 Aug 03, 10:11am PST:

I think your assumption that there will be a relatively weak urge to game the system is highly questionable. We're not really sure what the market will look like for music if P2P is fully legitimate. If music is entirely freely available (except for the bandwidth - and anyone who is paying a flat fee has some they aren't using, many with significant amounts) for unrestricted distribution, it is not clear to me that the costs of gaming the system will be particularly high. If the costs of gaming the system aren't high, then a relatively weak urge to game the system will be enough to get people to game the system.

Furthermore, until you actually provide specific details of the proposed system to be implemented, various weaknesses will not be able to be identified and gaming strategies developed. Talking in the abstract is fairly meaningless in this case. There will be an incentive to game any system, the question is simply whether gaming it will be cost effective. We can't make that call until we have details on the proposed system.

Here are a few incentives for gaming the system:

How much money would the artist/publisher/whoever get per download? $0.05, $0.01, $0.005? Does it really matter? No, because then I will pay people less than what I recoup to download my song. In the above case, I'll pay people either $0.02, $0.005 or $0.0025 everytime they download my song. People will gladly join such systems when they have flat fee connections. What do I care if my computer spends all night downloading songs and subsequently deleting them from my hard drive, if I can get a few bucks a month taken off my "licensing fee" or however the powers-that-be derive money from me?

Think such a system would be easy to stop? There is a serious incentive to figure out ways to do the above. Heck, perhaps you could get a "payola" law passed that would keep record industry types or artists from paying people to download for pay (P2Payola?). The original payola law sure worked wonders, until "independent promoters" filled the gap.

Or perhaps you would have clever algorithms that would try to figure out when people are trying to game the system under such a P2Payola scheme. Design one, and someone clever will shortly figure out a way around it. Perhaps people will develop sharing programs for this purpose. Instead of SETI@home, we'll have P2Payola@home.

Of course, even definining P2Payola would be tough. If a record company were giving out "virtual lottery tickets" to get a backstage pass to a concert if people downloaded the song from their website, would that be illegal? Would that not be counted towards their share of the pie? What about access to a "members-only" section of the website?

You could also have a contest ... $10,000 to the team or group that has the highest number of verified downloads that get around any theoretical anti-P2Payola system. A prize like that would get some nice attention I think, and really clever people working on the problem. I could imagine there might be some people who really, really don't like the RIAA or MPAA and would be happy to put up the money for such a prize. You could outlaw such prizes, but we start to enter some real interesting territory on what is or is not illegal.

Still think the monetary incentive isn't enough? There are many other incentives that are pretty strong, given that downloading on a flat flee connection will be relatively cheap.

Remember the Dixie Chicks? Pretty harsh how many radio stations stopped playing their music because one of their members expressed a sentiment that many people agreed with. Well, first thing I would do, if I were a clever programmer who agreed with that sentiment, would be to develop a small app that would download Dixie Chicks songs day and night to make up for the revenue they were losing from the radio stations. Undoubtedly, many sympathetic types would be happy to join me in such an effort.

How difficult would it be to develop and distribute P2Politics, my theoretical program that will allow you to get your music with all the efficiency of the best P2P programs, and support your favorite political positions at the same time. Download all Lee Greenwood all the time (when you aren't doing something more important with your internet connection, anyway).

Uh oh, hard to make this type of effort illegal. You would be stomping all over political speech if you tried. Sure, it might be possible to make a law that passes Constitutional muster (though unlikely), but do you really want to stop people from voting with their downloads?

Of course, the above ideas don't require any changes to watermarks or anything of that nature.

As far as changing lots and lots of watermarks ... lots of people would be happy to punish Lars Ulrich of Metallica if he says something they think is stupid again. Again ... one clever person cracks it and develops an easy-to-use system for taking advantage of the crack ... millions of average users can use it. This is something the average user can really get behind. Beats the ineffective boycotts everyone is constantly being asked to join on The Register and Slashdot. You could actually do something about it. Would enough join to make a difference? I think for some causes and against some people/organizations, yes ... a serious difference, that your system will have to thwart. Will it be a crime to do this? If not, I think there will be enough incentive that it will be done. If it is a crime ... is that better than our current system?

Hmmmm ... a central registry that will be checked periodically. Very nice. After you've explained the details of your system for thwarting all sorts of ways to game the system, perhaps you would explain the details of the registry and tracking system and show how these could not be exploited to violate people's privacy. Hopefully, your explanation will also take into account how this system will work in conjunction with proposed trusted computing initiatives, such as Palladium, as well as the incentives many will have to violate users privacy.

Sincerely,
Ernest Miller

Update: Derek has the rest of the conversation here.

Posted by Mary Hodder at 04:33 PM | Permalink | Comments (1)
August 05, 2003
Porn Used in File Sharing Arguments

Jon Healey/LATimes writes that Both Sides Add Porn to Debate Over File Sharing (htm):

The music and movie companies warn that file-sharing sites are rife with graphic pornography that insinuates itself into users' computers. Civil libertarians and Internet service providers argue that music companies' anti-piracy tactics open the door for pornographers and others in the seamy online underbelly to invade Internet users' privacy.

Internet service providers and civil liberties groups have argued that a record industry strategy -- using subpoenas to force ISPs to identify customers accused of file-sharing piracy -- could enable pornographers, stalkers and other shady characters to obtain the names and addresses of Internet users.

Last week, one adult-entertainment company may have given the RIAA's opponents ammunition in their fight against the subpoenas. San Francisco-based IO Group Inc., which sells gay male adult videos under the name Titan Media, sent Pacific Bell Internet Services a pair of subpoenas seeking the names, addresses, phone numbers and e-mail addresses of at least 59 customers accused of infringing its copyrights on file-sharing networks.

When Pac Bell objected to the requests, Titan withdrew the subpoenas. Nevertheless, Pac Bell sued Titan in federal court July 30, asking for an order declaring that such subpoenas were improper.

Porn and file sharing have been discussed before, for example in Wired where the contention was that file sharing was good for porn sellers, in one way or another, where they were using file sharing to gain exposure and customers. Apparently, Titan has decided that file sharing was not helping their business and acted accordingly. However, Judges may be able to evaluate more critically the subpoena process (with subpoena-bots) if they are thinking about its use with porn verses content the RIAA wants to protect. SBC's action against Titan may shift the file sharing/subpoena debate, if SBC is successful in forcing a change in the subpoena process allowed under the DMCA.

Posted by Mary Hodder at 08:35 AM | Permalink | Comments (3)
August 04, 2003
News Media Reports Chaos and Controversy in the Digital Media Industry

Where to begin? I can't tell if there really is as much chaos as has been reported over the past few days, between music company lawsuits, parents facing tuition and a subpoena (for the fall semester), the general state of the media business, and reactions from the public, ISPs and Congress, the RIAA picked a great time to stir things up, bringing about many more questions than answers. Nobody involved could possibly be having a restful vacation season right now.... Happy Summer!

Carrie Kirby/SFGate report the FTC alert issued on file-sharing: Without taking a stand on the controversial issue of trading music and other files on the Internet, the Federal Trade Commission is advising people to step carefully if they dabble in file sharing.

Ryan Naraine/internet.com notes that Universal Music Defends DRM; P2P Litigation: In a lively keynote presentation at the Jupiter Plug.IN Conference & Expo here Tuesday, (Larry) Kenswil (President of Universal Music Group) slammed pundits who have been "trying to dictate how to reinvent the music business" by encouraging the theft of copyrighted works. "The bickering among record companies, publishers and retailers is impeding progress. We need to focus on making sure the pie is large enough to slice in a number of ways," Kenswil added.

Phil Kloer/Atlanta Journal-Constitution says in Music downloading. Say you want a revolution? It's war between record labels and downloading fans (htm): This is the spirit of rock 'n' roll, of instant gratification and anti-authoritarianism. And it's that very spirit that has the entire music business shaking in its Doc Martens. Because you're hard-pressed to find a kid at Warped who isn't downloading -- illegally, for free, sometimes in massive quantities -- the very music he or she has come to glory in.

But then Geoff Boucher/LATimes says Now fans call the tune, The same era that has vexed the recording industry has brought more control to the consumer (htm):

In a music world in upheaval, iTunes, with its paid downloads of music, is the closest thing to an interim government in the lawless land created by Napster and its revolutionary ilk, and while its future is uncertain there is no denying that the real estate on Third Street in Santa Monica is a foothold in a brash new world.

The sunny visions of those Apple commercials are hard to reconcile with the gloom and doom that have been pervasive in the music industry in recent years. The grim chorus is now as familiar to the public as any Top 40 hit: Piracy has gutted profits, CD sales are going steadily south for the first time since the format was introduced in the 1980s, corporate conglomeration has stultified any art in the commerce of record labels, radio and the concert business.

The chaos inspires in some a belief that better times are ahead, not just for fans but also for artists and the business thinkers willing to jettison the view that giving away music is tantamount to condoning high-tech shoplifting. One of those thinkers is (David) Benveniste (also manager for System of a Down). While many in the music industry have been scrambling to halt file sharing (indeed, the Recording Industry Assn. of America is now pursuing hundreds of subpoenas that would force Internet service providers to reveal the names of particularly prolific online music bandits), Benveniste exults in mailing out free music to fans and creating as much Internet buzz as possible.

"Look, the kids are so smart these days, they can find, retrieve, disseminate, produce any piece of music or technology now on the Internet. They can take a song, send it to a friend in North Africa, remix it how they want, make their own video for it and make it their own. And that technology makes them so powerful. It's not about the radio programmers anymore or promoters. It's about a kid in homeroom in Iowa now. Everything is different now." (Benveniste) Reminds me of the cultural populists refered to in this definition of Semiotic Democracy.

But the LATimes also has an OpEd on the Tone-Deaf Music Industry (htm): What is euphemistically called trading music online is theft, most of it petty. Songs downloaded free deny artists and record companies their due. Even so, the recording industry has abetted the robbery with its own greed and ineptitude. Though the industry is showing a glimmer that it understands there are better ways to deal with the problem, it also is employing a legal blunderbuss to pursue small-time downloaders as big-time criminals.

Jon Healey/LATimes also reports on negotiations between the music industry and universities: New Tactic Planned in Antipiracy Campaign (htm) even while Anthony D'Amato/Chicago Sun Times reports that universities are turning over students and becoming in essence part of the law enforcement side of things: Loyola hits sour note in naming students in Net music case (htm).

Then there's Charles Haddad in Business Week's Byte of the Apple talks about Why iTunes Has Bands on the Run, Music fans are making their feelings clear: Online services such as Apple's put consumers in control of what they buy, not artists talking about, among other things, the debate between fans of albums verses singles and what effect that has on the digital music industry.

Marrecca Fiore/Utica Observer-Dispatch on Music piracy, more competition cutting into record store profits.

Sara Steffens/Contra Costa Times has Generation Download, Teens, young adults who have grown up digital aren't keen to follow analog rules

And Terry Lawson/Detroit Free Press on Billboard's chart of digital downloads reflects changes in industry: If legal downloading does put a dent in file-sharing shoplifting, it could have ramifications the music industry doesn't expect.

One scenario is a return to the early 1960s, when 89-cent singles outsold albums, generally priced at about $4, 50-to-one. If you've ever wondered why original Motown albums are hot in the collectors' market, it's simple. It wasn't until the mid-'60s that Stevie Wonder and Marvin Gaye began recording tracks meant to be listened to in sequence, a la albums by the Beatles and Rolling Stones. Before that, only hard-core fans bought Supremes albums, which were padded with covers and singles rejects. Motown's most successful albums were always its hit-singles collections.

Then there's My-Ly Nguyen/Binghamton Press & Sun-Bulletin piece on Fearless file sharing, Some music downloaders have no qualms about breaking copyright laws.

Kevin Bermeister/Biz2.0: Toward a Law-Abiding Kazaa, The technology exists to make P2P work for legitimate, copyright-protected content. But first, media companies have to stop suing and start acting in their own interests. (sub req) (or htm) says The age of superdistribution is upon us: Users expect all content -- protected or otherwise -- to be available to them on demand.

Eric Hellweg/Biz2.0 asks Will Napster 2.0 Be Music to Investors' Ears? Trading jumped when Roxio announced it was relaunching the service, but serious hurdles stand in the way of success.

Marc Ferranti/IDG News Service says Doubts Still Plague Online Music, looking at marketing, ease of use and flat fees and other distribution arrangements. A big issue is still securing rights to content.

Mark Rasch/Security Focus and the Register "Copying is Theft ..." And other legal myths in the looming battle over peer-to-peer on the music industries insistence that all copying is theft... So "copying" is not "stealing" but can be "infringing," (according to the Supreme Court). That doesn't have the same sound bite quality as Valente's position. (also at The Register)

And in the business side of things, Mark Landler/NYTimes says Bertlesmann is reducing debt (htm), sitting out the sale of Vivendi assets, as well as pulling back on talks to combine BMG with Warner Music Group. And having restful vacations as well.

And for fun, Gary Marshall/Guardian looks at viral marketing and the recent Metallica spoof, and the ways that the whole episode helped Unfaith get some attention.

Posted by Mary Hodder at 09:10 AM | Permalink
Digital Technology for Multimedia

Steve Lohr/NYTimes has something (htm) on the effects of digital technologies on the middle class. Consumers are embracing everything digital:

Digital technology is so malleable a tool because it renders everything -- words, numbers, music and images -- in bits, or binary digits, the 1's and 0's that are the computer's vernacular. The bits can be copied, transported, assembled and manipulated, using increasingly powerful computers and clever software, in limitless ways.

The cultural impact of the technology extends well beyond films, into art and music. "All the creative arts have become digital," said Michael Century, chairman of the arts department at Rensselaer Polytechnic Institute. "That is forcing us to rethink what it means to train people in the arts. The goal is to nurture integrated, multimedia creative minds."

Posted by Mary Hodder at 08:41 AM | Permalink
July 31, 2003
More on RIAA Subpoena Efforts

Amy Harmon writes that Efforts to Stop Music Swapping Draw More Fire (htm) pulling together the PEW study, Pac Bell's suit and Coleman's investigation.

Posted by Mary Hodder at 10:37 PM | Permalink
Love It Is

So Pac Bell is my DLS provider and while I don't share files, they are defending my privacy (against the RIAA subpoenas) according to Ron Harris/AP. It's all so gallant:

In the complaint, PBIS maintains it only acts as a "passive conduit" for the activity of its subscribers and "does not initiate or direct the transmission of those files and has no control over their content or destination."

Not to mention: PBIS claims that more than 200 subpoenas seeking file-sharers' e-mail addresses were issued from the wrong court of jurisdiction. Moreover, PBIS said the recording industry's demand for information on multiple file-sharers cannot be grouped under one subpoena, and that the demands themselves are overly broad.

On the other hand: The recording industry disagreed late Wednesday, in statement given to The Associated Press.

"We are disappointed that Pac Bell has chosen to fight this, unlike every other ISP which has complied with their obligations under the law. We had previously reached out to SBC to discuss this matter but had been rebuked," the statement read.

It's tough performing an heroic cyberdeed, not to mention doing the right thing. Bravisimo, PacBell!

Update: more love! Senator launches investigation into RIAA piracy crackdown per Frederick Frommer/AP. "I recognize the very legitimate concerns about copyright infringement," Norm Coleman said in a conference call with reporters(He's the chairman of the Senate's permanent subcommittee on investigations and a Minnesota Republican who was a rock roadie in the 1960s, as well as Napster user before it was declared illegal). "This is theft. But I'm worried that the industry is using a shotgun approach." See "more" below for Coleman's letter to Cary Sherman/RIAA. The RIAA has agreed to turn over the info.

Update (080303): here is Coleman's press release.

MORE...
Posted by Mary Hodder at 10:21 AM | Permalink
July 30, 2003
All You Need Is Love

So if you aren't on the RIAA enemies list, will you feel left out? Pholisters suggested that the more subpoenas they send, the more stick they will have to get their way when they negotiate the College download fix.

Jason Schultz has the "Top 11 Signs your ISP has given you up to the RIAA....."

If the subpoenas don't work, maybe the RIAA detention facility in the Mojave Desert will help users learn to stop worrying and love the RIAA. Show me love, babe!

MORE...
Posted by Mary Hodder at 06:44 PM | Permalink
July 17, 2003
Digital Mix: A Special BayFF Celebrating Illegal Art


On July 25, the Electronic Frontier Foundation will host a night of music, art, and conversation to celebrate digital culture. Hosted at the Black Box in downtown Oakland, this special BayFF will bring up-and-coming artists of electronica, digital film, and illegal art together with leaders from the cyber-rights movement. Lawsuits and legislation have become the weapons of choice for dealing with file-sharing and cultural recycling ("sampling"); come out and discover what all the hype is about. Between laptop music, hip hop, and industrial performances, you will hear from people who are fighting to protect new forms of expression and cultural distribution from the attacks of the entertainment industry.

Performers:
~ Cat Five
~ Meanest Man Contest
~ Uprock
~ Mochipet
~ Freshblend

Speakers:
~ Fred von Lohmann (Electronic Frontier Foundation)
~ Glenn Otis Brown (Creative Commons)
~ Ray Beldner (Stay Free's Illegal Art Exhibit)

Sponsored By:
~ XLR8R Magazine

Where: Black Box at 1928 Telegraph Avenue
Oakland, CA
When: Friday, July 25th, 8 p.m. - 2 a.m.
Cost: $5 suggested donation
All ages welcome
Easy BART access @ 19th St. Station in Oakland
Directions available here

Posted by Eddan Katz at 09:17 PM | Permalink
June 19, 2003
Breaking the Copyright Impasse: Try Compulsory Licensing!

But it's not for the RIAA, yet. They're still working on heavy handed measures that ignore the realities of digital media and flat hierarchy distribution in favor of sending cease-and-desist letters (AP) (or htm) (or BBC) to the four Verizon customers (plus one from Earthlink) for file sharing of copyrighted works. As Wendy Selzer mentions, users are entitled to their privacy until they have had the due process proving they are copyright infringers. The RIAA has sent the letters without judicial review. The only review in this case was whether the ISP could be compelled to violate their user's privacy. See the opinion in the case.

However, Donna points to this article from The Phoenix: Privacy, Breaking the Internet Copyright Impasse by Dan Kennedy:

Simply put, the current paradigm encourages both goon-like behavior on the part of the music industry and other content providers even as it rewards larceny on the part of consumers.

"We live today under two copyright regimes: the law on the one hand and reality as experienced by the public on the other.... The Net forces us to confront the contradictions between what the law requires and what individuals do," (Jonathan) Zittrain writes.

Certainly paying a copyright tax in return for the right to trade copyrighted files would be infinitely preferable to giving Entertainment, Inc., the right to snoop into your personal information.

While compulsory licensing may not be the answer, though it has been much talked about, keeping the discussion going in the press about alternatives to goon-like behavior is very much appreciated. Note to the RIAA: we would love it if you would just offer the music at a fair price and in an easy, organized manner, fairly compensating the artists, for digital download.

Posted by Mary Hodder at 04:02 PM | Permalink | Comments (3)
June 18, 2003
For Solving the Problem of Theft of Copyrighted Works, Orrin Hatch Suggests...

"If we can find some way to do this without destroying their machines, we'd be interested in hearing about that. If that's the only way, then I'm all for destroying their machines. If you have a few hundred thousand of those, I think people would realize the seriousness of their actions. There's no excuse for anyone violating copyright laws." (from the Washington Post/AP or htm) Sen. Orrin Hatch is Chairman of the Senate Judiciary Committee and the hearing was Tuesday where he made this statement.

So, would your computer be destroyed without a court order or other due process? Without checking to see that the files were actually a copyright violation and not, say, your own personally ripped mp3s from your own lawfully purchased CDs? Or a file with a similar name as that of a copyright protected work, but one that is not another's copyrighted work at all? Like in the Penn State astronomy and astrophysics department case?

Dana Blankenhorn responds that if technology like this were developed it would get out and any hacker could use it to destroy any computer:

The nature of secrets is they don't stay secret long. The bigger the secret, the faster the discovery.... Orrin Hatch would be unable to compute anymore. Neither, for that matter, would I. Neither would you. That (secret, machine destroying) code would spread, not like a virus, but like spam, and destroy the Internet forever. You can "email" Hatch to suggest that he get a regular email address, as well as consider that his idea is unconstitutional.

Lessig comments that Hatch has been swallowed by extremists.

Donna blogs the Internet Law 2003 conference and links to some of these issues as well as P2P and technical self-help discussions at the conference. The Register weighs in too.

Update 061803: Senator Hatch can be emailed here: senator_hatch@hatch.senate.gov

Update 061803: Hatch's office has issued a statement about this:

"I am very concerned about Internet piracy of personal and copyrighted materials, and I want to find effective solutions to these problems.

"I made my comments at yesterday's hearing because I think that industry is not doing enough to help us find effective ways to stop people from using computers to steal copyrighted, personal or sensitive materials. I do not favor extreme remedies - unless no moderate remedies can be found. I asked the interested industries to help us find those moderate remedies."

Update 061903: See Ed Felten's write up on this issue.

Update 062003: Orrin Hatch, Software Pirate. Apparently, Orrin Hatch's website is using unlicensed software. D'oh!

Posted by Mary Hodder at 08:01 AM | Permalink
June 16, 2003
Muse.net Gets Closer to the Heavenly Jukebox Answer Post Napster

Jon Healey at the LATimes has an article on Personal Jukeboxes (htm) where technologies like Muse.Net let "people with high-speed Internet connections listen to the music on their computers from any other computer online" so that a collection of music is not about the bits on a machine but rather a collection of titles that can be anywhere. About 150,000 people use Muse.Net (of Mediacode, Inc.), which "increases consumers' appreciation of music without decreasing their willingness to pay for it" by letting one person access their own collection for about $20.00/yr.

"I just think it does all the right things," Ted Cohen, SeniorVP of EMI said after seeing the technology. "It lets people extend the reach of their music experience without tripping over artists' rights or content owners' rights."

On the other hand, there are security and privacy issues, with Muse.Net: "'You're asking me to register what I own,' Analyst Michael McGuire of GartnerG2 says. In Microsoft's Web services model, the entity that licenses and distributes songs 'knows who I am, what I have and what I'm doing with it at all times, theoretically.'"

In contrast, the NY Times has a piece on the difficulties of downloading (htm) courtesy of Frank Field... who also mentions the iPod/iTunes bundling possibilities; as well as this Miriam Rainsford (who started the Madonna remix project mentioned here before) piece on musicians and DRM:

As a musician I find the notion of using DRM technology abhorrent -- not only because of the risk that my works could be locked up indefinitely by technological means, despite my signing a non-exclusive distribution contract. Under anti-circumvention laws such as the DMCA and the forthcoming EUCD, it could well prove impossible for me to share my own work with my friends, or to distribute DRM-controlled content to another publisher.

But aside from the legal and practical aspects, I believe DRM to be against the spirit of music-making. Music is made for enjoyment -- and it is very difficult to create music without an atmosphere of freedom.

And Jenny at the Shifted Librarian talks about another idea to rent iPods filed with music.

Posted by Mary Hodder at 08:47 AM | Permalink
June 10, 2003
Music Downloads for the PC Planned

Jon Healey and Jeff Leeds at the LATimes are reporting (htm) that Yahoo, Microsoft, AOL, Viacom and Amazon are all planning to offer new music services a la iTunes, possibly by the winter. So it looks like the music industry is coming around, starting to see online downloading for the commercial opportunity it is:

Music executives hope the new players will help the industry reverse its sales slump.

"I think the whole thing is a revolution," said Doug Morris, chairman of Vivendi Universal's music operation, the world's largest. "Yahoo has an enormous number of people coming through all the time. Amazon sells a ton of content. MTV certainly is an enormous bull's-eye for people who like music. This is an amazing moment."

And Amy Harmon at the NYTimes is reporting (htm) a similar story of the music industry starting to come around to the realities of online downloading as a fact of life:

"The technology has destabilized us, it has hurt us," said Doug Morris, the chief executive of the Universal Music Group, a unit of Vivendi Universal and the largest of the five major record companies. "But now it's going to take us to new heights."

It's about time. But will they still go after students who make Google-like applications (taking their savings accounts)? It seems so punitive for an industry that should be putting its efforts into more positive ventures like those mentioned above. In the meantime, Eric Olsen of Blogcritics talks about (htm) Pearl Jam's exit from Epic:

...can the Pearl Jam organization get enough recorded music out there through its Web site, fan club and independent distribution to make a go of it without major label distribution?
The dinosaurs will be watching closely.

Posted by Mary Hodder at 08:22 AM | Permalink
May 28, 2003
A Little Competition Goes a Long Way...

Real Networks announced today that they will offer music for 79¢ that will "Transfer to CD and Access to the World's Largest Online Library of Major and Independent Label Music... (including) 330,000 tracks available for on-demand listening and more than 200,000 songs available for transferring to CD, aka 'burning'." This is a nice contrast, and hopefully the beginning of some real competition in the legitimate online music download marketplace.

News.com mentions the Real announcement. And Wired notes the Rhapsody offer. However, iTunes has changed its sharing policy according to the Register. Apparently, iTunes music can only be shared now on up to three machines on a single network. There is also PureTunes, the Spanish service that claims that under Spanish copyright, they have the right to sell online music through, "an agreement with music publishers, the AIE (Asociacion de Artistas, Interpretes y Ejecutantes (Association of Artists, Performers and Players)." The RIAA doesn't like it but Weblisten has apparently successfully defended themselves using this argument.

Posted by Mary Hodder at 08:57 AM | Permalink
May 21, 2003
The Future of Film

William Gibson gave a talk on 5/17 to the Director's Guild of America for Digital Day. It's an interesting and beautiful essay, weaving the instantaneous film education he got watching one Disney piece, to that needed for reading novels, to a comparison of digital music to that of film, where he thinks the state of filmmaking now is much like that of old dial phones and, like what we use now in the form of digital cellular, we will experience something unimaginably comparible in the development of digital film in the future. He discusses the technical monopolies in the music and film production worlds, and the distinct and separate devices and computational systems we function with now, compared to the future systems that will envelope us like the spread of "warm Vaseline." It may be that to interact with DVD's in the future, the viewer will need the more complex education comparable to that now needed to understand a novel. He also mentions a new digital way of perceiving the "inbuilt peripherals" of media, the recombining of our digital artifacts:

Because I see Johnny falling asleep now in his darkened bedroom, and atop the heirloom Ikea bureau, the one that belonged to his grandmother, which his mother has recently had restored, there is a freshly-extruded resin action-figure, another instantaneous product of Johnny's entertainment system.

It is a woman, posed balletically, as if in flight on John Wu wires.

It is Meryl Streep, as she appears in The Hours.

She has the head of a chihuahua.

The essay is very hopeful and open to an unknown future, and I encourage you to check it out. Also, Frank Field has an interesting view on this essay.

Posted by Mary Hodder at 12:27 PM | Permalink
May 20, 2003
"Big Champagne's Burst Bubble"

BIPlog has written about Big Champagne before, and understood from their website that it is a service that measures music downloads which they point out through media quotes in the center of the front page. But Online Tonight's editorial column by David Lawrence refutes this impression Big Champagne would like people to believe, and instead points out that they monitor what is offered, not what is downloaded. And there is a big difference.

Apparently, that information can be found by using KaZaa desktop, and a few other things on the Internet. Because there are more downloaders than uploaders, offerings are not a good statistic of what people download, and the article mentions that is an impossible statistic to get perfectly. It's something more akin to Nielsen ratings, which are estimates. Big Champagne won't discuss their methods. They also don't apparently count the downloads on legitimate sites. And in using IP addresses to determine geographic location, they profess to have more accuracy than is possible.

It's an interesting look at this company that has clients like Clear Channel/Premiere, Blender Magazine and E! Entertainment, and a CEO that recently testified before the California Senate Select Committee on the Entertainment Industry. Read the article, because it makes clear how Big Champagne may have fooled the media and their clients into thinking they know much more than they do.

MORE...
Posted by Mary Hodder at 12:04 AM | Permalink | Comments (8)
May 15, 2003
Hilary Rosen Embraces Technology

Hilary Rosen wrote a short piece for Biz2.0 on why the Recording Industry loves technology. Let's count the ways:

"I'm every bit as passionate about music as you are.... The reason we do what we do is not a love of litigation but rather a love of music... the record industry is poised to rebound. And what will the vehicle for this rebound be? Technology. Yes, technology.

The RIAA believes in innovation. And we believe that consumers in the marketplace, not the government, should decide which technological innovations will thrive.

Today there are several legitimate online services...thanks to electronic distribution through multiple types of networks with varied business models... consumers can buy digital music à la carte or sign up for subscription services offering unlimited downloads, and they can take their tunes with them wherever they go.

Since portability is a compelling feature for music fans, these new ways of distributing music can bring added value to all sorts of new consumer electronics. As I prepare to leave my post this year, I'm proud that part of my legacy will be the role I played in championing new technologies. But the financial incentive required to keep music fresh and popular must be a shared commitment between the music industry and the technology community. Continued investment in and development of the legitimate online music marketplace, along with appropriate antipiracy enforcement, is the ultimate pro-technology strategy for both creators and consumers."

Where to begin? If the old-style Recording Industry rebounds, it will probably because of the lawsuits and the super-DMCA and DMCA laws, and her lobbying efforts to keeps the incumbents intact. Rosen writes as if the RIAA et al invented streaming, downloading, and might possibly embrace the rip, mix, burn philosophy. And she says they've spent hundreds of millions developing new modes of distribution. It seems to me the RIAA only loves technology when they have complete control over it. They have been more instrumental in developing anti-theft technologies like DRM that prevents music from playing, spoofing and automated mailer systems than ones that would deliver music to customers via the internet and other new digital modes of distribution.

The RIAA has done everything possible to prevent the napsterization of their industry, which she characterizes as one that used to deliver "soft drinks" in "64 ounce bottles" to one offering six-packs and cans, with "...electronic distribution through multiple types of networks with varied business models." But the RIAA has only done this grudgingly, with lots of difficulty, and I don't think anyone really believes her when she also talks about self help in terms of Martin Luther King and her organization supports the jailing of students who download music. I'm all for the RIAA getting reasonable after their extreme position in the past few years, but when she makes the contradictory arguments above, and is continuing the lawsuits, lawsuits, lawsuits tactic, I just don't buy it.

Posted by Mary Hodder at 08:44 AM | Permalink | Comments (1)
May 13, 2003
Universal Joins Suit Against Bertelsmann

Universal Music Group, a branch of Vivendi Universal, filed a copyright infringement suit on Monday with the U.S. District Court of in New York against Bertelsmann AG. It is expected that the suit will be combined with a $17 billion lawsuit filed in February by other music publishers, including rhythm & blues pioneers Jerry Leiber & Mike Stoller, that accuses the German media company of investing $100 million on Napster, which helped the service stay alive and succeed longer than it would have otherwise.

Universal released a statement saying: "Bertelsmann did not merely provide a loan to Napster; nor was it merely a passive investor in Napster. Rather, it took control of the Napster system to financially benefit itself at the expense of Universal and its artists". When it first started supporting Napster, Bertelsmann said its intent was to build a legitimate music subscription service. However, Universal alleges in the law suit that "Bertelsmann recognized it did not have the technical capacity or business model to implement such a service for some time."

Derek Caney, from Reuters, writes: "Universal [...] has been one of the more aggressive record companies in pursuing legal remedies to combat piracy. The industry has blamed file-sharing technology for much of the recent slump in record sales". In fact, only last month, Universal, together with EMI Group Plc, sued San Francisco-based venture capitalists, Hummer Winblad Venture Partners, who once supported Napster.

Three among the five biggest record companies, AOL Time Warner Inc.'s Warner Music and Sony Music, declined to comment on whether they would join the suit and EMI was not immediately available for comment. Reuters reports that "one label executive who requested anonymity said they had looked at the suit but decided it was not worth pursuing."

Posted by Valentina Pasquali at 08:44 PM | Permalink
May 12, 2003
"Glass houses, people. Glass houses."

Moses Avalon says this about the record companies and their apparent mishaps with recompensing the artists for those cd's sold through the record clubs... $100 million a year is a lot of forgetting. But I guess it's hard to keep track of things when you're dogging the students, the astrophysicists, and the ISPs. Michael Jackson has something to say about this, too.

Billboard mentions the CA Senate bill moving through the legislature imposing fiduciary responsibility on record companies. "Music industry officials oppose the bill, saying it would impede labels from developing new business models in the face of surging piracy. Recording Industry Association of America (RIAA) president Cary Sherman testified Tuesday that the bill "would distort the intensely negotiated, arms-length contractual relationship between an artist and recording label by imposing a fiduciary duty only on one party." Hmmm. In the hearings, it was pointed out that only one side, the record companies, "holds the financial records to calculate royalties."

Okay, enough of this RIAA silliness. Time to get back to studying for that last final....

Posted by Mary Hodder at 10:31 PM | Permalink
May 05, 2003
Music Industry Battles and Keeping Your Eye on the Ball

The Register's Andrew Orlowski sees this fight as one where it's The RIAA Attacking Our Culture, the American Mind, relating the tactics of self-help, and the use of DRM, among other things, to cultural identity. There is some flawed and leaping logic, but mentioning having a heritage of music available is important in refocusing this debate. Copyright is about protecting artists so they can create, but ultimately making their work available to people in reasonable ways. So when Cary Sherman complains that the debate has become uncivil, the tactics described below emphasize that he and the RIAA make this uncivil, instead of just being observers of the uncivilness. Since the RIAA has a lot of power and control to steer this situation in either civil or uncivil directions, they could civilize it immediately by changing their business model. Are they maintaining such a hard line because with so many lawsuits on the fire, they have to follow some counsel's direction?

The NY Times reports (or htm) that the "music industry's five "majors" -- the Universal Music Group, a unit of Vivendi Universal; the Warner Music Group, a unit of AOL Time Warner; Sony Music Entertainment; BMG, a unit of Bertelsmann; and EMI -- have all financed the development of counterpiracy programs."

"The record companies are exploring options on new countermeasures, which some experts say have varying degrees of legality, to deter online theft: from attacking personal Internet connections so as to slow or halt downloads of pirated music to overwhelming the distribution networks with potentially malicious programs that masquerade as music files."

"Warner Music issued a statement saying: 'We do everything we feel is appropriate, within the law, in order to protect our copyrights.' A spokeswoman for Universal Music said that the company 'is engaging in legal technical measures.'"

Pam Samuelson in her MIT Tech Review interview last month mentioned that Rep. Berman's bill proposed last year would allow more far reaching tactics than those mentioned above despite the Computer Fraud and Abuse Act [CFAA] and the DMCA's anticircumvention provisions. "The CFAA has quite a lot of open-ended provisions. For example, if a rights holder accessed a user's computer and disabled use of files on that computer, that would violate CFAA. As the recording industry was contemplating how to fight back against peer-to-peer file sharing using technology, they correctly reasoned that they might, in fact, be subject to liability under the broad provisions of the CFAA or other federal or state laws that forbid, for example, trespassing on somebody else's computer system."

The countermeasures stop short of crossing the liability line, but slowing connections might still be a problem. Especially because this is punishment without due process. It's a lot of trouble for the RIAA, and it escalates the music battle to new levels. Why not they just accept that they live in a different world, and their dinosaur business models need to go, in favor of working with the market. Let's hope Apple and a few other smaller services make that clear, so the RIAA abandons this punitive nonsense.

As Pam said, "...it's important to find some solution that is the least socially disruptive -- one that also then gets a wide array of wonderful creative works into the hands of lots of different people. Because that's what ultimately the copyright system is supposed to achieve."

Posted by Mary Hodder at 06:59 AM | Permalink
May 03, 2003
Is Apple's iTunes Profitable?

According to record industry sources, 250,000 songs were purchased and downloaded on iTunes music store's first day, at a cost of 99 cent each.

Analyst Rob Enderle of Giga Information Group, a unit of Forrester Research, told Duncan Martell of Reuters, "For the launch of a service that is Apple only, those are good numbers." Apple hasn't yet released any figures on how much it spent to develop the online music store. This is why "at this early stage we do not have a good indication of the profitability of this service," wrote Dan Niles, an analyst at Lehman Brothers .

The Apple's online music store will be competing not only with free file-swapping tools like Kazaa and Morpheus but also with paid services offered by the record industry like MusicNet, Rhapsody and PressPlay. The service will be made available to Windows-based PCs, which account for 90% of the market, starting later this year, a step that is fundamental to profitability of the system. "The big revenue opportunity is when they move this off the Apple base," Enderle said.

Posted by Valentina Pasquali at 12:27 PM | Permalink | Comments (2)
May 01, 2003
RIAA Suits Against Students May Settle.

RIAA lawsuits brought last month against the four students making and operating network search engines apparently will settle soon. The Daily Princetonian reports that Daniel Peng, and the three others, have been working with attorneys to negotiate an end to this, and expect some kind of announcement today. "It would be really expensive to litigate," said Peng, who has avoided commenting publicly since the filing. "I would like to reach an amicable settlement."

In a related story, the Daily Cal at UCB reported on 4/29/03 that UCB Administrators had been approached by the RIAA to close off P2P traffic ((on that note, who hasn't? Even thought there is no P2P traffic on my personal network that I know of - Housemates? Is this true? I expect the doorbell to ring momentarily where a big thug in a bowling shirt with "RIAA" embroidered on the breastpocket requests "politely" that I block traffic immediately if I know what's good for me! It's getting to be like the Nixon enemies list, where anyone who hasn't been sued, or at least been asked to stop some activity by the RIAA will feel neglected.... Not to make light of the actual hardships people who are targeted by the lawsuits experience, but the RIAA is totally out of control, suing people for making search engines that happen to capture file listings on systems that may include MP3s, not to mention IMing file sharers with a tisk tisk note.)) The UCB Administrators responded that they have a policy of not interfering with the ways people use the network and could not comply because the network is set up to respect this. I don't have more details because the Daily Cal has had trouble with it's website recently, and I'm waiting to get a copy of the article to post. Will update then.

Update: Donna Wentworth points out the Settlement for Peng, et. al. at $59,000 (verses the $98 billion they were sued for).

Update: Here is the link to the Daily Cal Story.

Posted by Mary Hodder at 08:17 AM | Permalink | Comments (1)
April 30, 2003
Porn is Bigger than Music On P2P Networks

According to Wired News, porn is more traded on P2P networks than music, with porn makers claiming their profits are down, just as the RIAA does and for the same reasons. As Greg Bildson -- COO of LimeWire, maker of Gnutella style software said delicately, "We're about all different kinds of content sharing." It is often mentioned that on the internet, the most profitable industry by far is porn, yet they don't seem to get too upset about copyright infringement.

Porn purveyors are trying a couple of tactics to combat stealing, including collaboration (where they give away a little to get paying customers) and embedding links into small clips, planting them on P2P networks, so that when downloaders play them, they are redirected to pay sites. "We love file trading," said Kevin Blatt, sales director for the Triple X Cash. "Why? It's called greed. We've found a way to monetize that sharing." The RIAA could take a cue from them, working with the customers, not against them.

But I don't think Apple will debut iPorn anytime soon.

Posted by Mary Hodder at 08:41 AM | Permalink
April 28, 2003
Apple's New Music Service Continued

"iTunes 4 is awesome!" My brother's ecstatic praise turned me on to Apple's launch of its new music service, The iTunes Music Store, along with the latest version of iTunes, the musical listening swiss army knife-like device available free to Mac users.

It looks like the iTunes Music Store is much better than most of the previous attempts to distribute music electronically that had the backing of the major labels. But there are still limitations built in: "In a nutshell, you can play your music on up to three computers, enjoy unlimited synching with your iPods, burn unlimited CDs of individual songs, and burn unchanged playlists up to 10 times each."

My curiosity is piqued, but I still have some reservations. The major labels see the computer as a threat, and are aggressively trying to destroy the surrounding industry, which, incidentally, happens to be one of the most successful in recent history. Do I really want to spend my money on a service that supports the majors?

Posted by Daniel C. Silverstein at 11:02 PM | Permalink
Apple Throws Down the Gauntlet

Apple has created an iTunes store with 200,000 songs for downloading. Using the site includes 30 free previews and cd cover art which quotes Steve Jobs as saying, "AND it's not stealing -- it's good karma." So 5% of the market is covered, but what about the rest? I wonder if it will put a dent in Kazaa users sharing 1 billion files. But something viable for the PC needs to be offered, too, so this might be the Pepsi challenge for the RIAA....

Other IP thoughts: Matt Morse pointing out that Saturday was World Intellectual Property Day. They even have a cartoon explaining their ideas about IP (pdf) which he cannot quite believe. Among other things, they point out that animals cannot make intellectual property. Check it out.

Meanwhile Harry Shearer has been talking about overall music industry strategy: Sue Your Customers! (htm). He suggests instead that the industry target older customers for sales because they have more money than time, are less likely to pirate music and more likely to purchase....

Posted by Mary Hodder at 08:04 AM | Permalink | Comments (7)
April 26, 2003
Newsflash: Grokster Wins

Is this the betamax case for digital files? As previously mentioned here, a Federal Judge in LA ruled in favor of Streamcast and Grokster, stating they are not liable for the actions of thier users. Andy Lack, the new chief of Sony Music, had an interesting take: "I'm relieved on some level because the judge affirmed everything we've been saying, but for one point, which may distract people from the real meaning of the decision," he told the NYT. In other words, he feels the decision affirms the music industry's right to go after individuals...but they plan to appeal, of course. Early buzz is that this will hasten the shift to rational digital distribution models for media companies. Let's hope so.

Posted by John Battelle at 09:10 AM | Permalink
April 23, 2003
Wheat and Chaff: Pam Samuelson Talks About Making Sense of P2P Piracy

Pam Samuelson is interviewed in the (May) MIT Technology Review about the Berman bill (which he admitted in February may not be reintroduced in the 108th Congress), "self-help" and the planting of "chaff" or phony mp3s into free P2P networks, and copyright.

"... A real unfortunate thing, and the Berman Bill isn't going to solve this, is that by being so aggressive against the peer-to-peer file-sharing technologies and bringing so many lawsuits and trying to shut the stuff down, the industry hasn't won the hearts and minds of the individual users of these networks, and they haven't won the hearts and minds of the technology community that wants to use peer-to-peer technologies."

On Self-Help for Copyright Holders:
"My sense is that this bill would not just immunize this kind of interference with downloading; it also would immunize more aggressive acts, including those that would otherwise violate the Computer Fraud and Abuse Act [CFAA] and the Digital Millennium Copyright Act's anticircumvention provisions. The CFAA has quite a lot of open-ended provisions. For example, if a rights holder accessed a user's computer and disabled use of files on that computer, that would violate CFAA. As the recording industry was contemplating how to fight back against peer-to-peer file sharing using technology, they correctly reasoned that they might, in fact, be subject to liability under the broad provisions of the CFAA or other federal or state laws that forbid, for example, trespassing on somebody else's computer system. "

Overall:
"If the goal is compensation to artists, then it may be time, especially in view of how widespread file sharing is, to start thinking seriously about some sort of licensing scheme so that noncommercial file sharing, for example, could be made profitable for copyright owners. But it would be necessary to impose some sort of tax. This would get copyright holders some money and would stop the punitive war that has been going on, which is going to be really tough for the industry to win. "

"I don't think that there's one silver bullet that solves the whole problem. But it's important to find some solution that is the least socially disruptive -- one that also then gets a wide array of wonderful creative works into the hands of lots of different people. Because that's what ultimately the copyright system is supposed to achieve."

Posted by Mary Hodder at 07:49 AM | Permalink
Those Crazy Kids: MixTapes, Contests and Hacks

The LA Times covers the Mix Tape scene (name is a throwback to the cassette era) where rappers and DJ's are mixin, small stores are selling, and the RIAA is suing. "One of those mix tapes got in the hands of Morales, who loaned it to a bodyguard for Eminem. Eminem heard a star in the mix, and that led to 50 Cent's $1-million signing to Shady Records. The result was the fastest-selling rap debut since the SoundScan era of tracking sales began in 1991.

"While the legal and financial departments at record labels see mix tapes as part of the piracy threat, many of the artists, and executives such as Morales who scout talent, see the mix tape as a filter and a proving ground. He says the wave of mix tape stars is just now starting to build. 'It's just going to get bigger and bigger. You can feel it.'"

Makes you think about the art of sampling, mixing, buring, and where we might be if those big labels could just think hard enough about a business model that would support this kind of creativity, not to mention digital downloads, so that everyone can get paid and we can get on with the business of street level testing, innovation and playing.

Speaking of remixing, here's the Madonna WTF Remix Contest: download her mp3 plant (some say it's a trademark eliminator?) and the other one, or anything else and mix away. The prize: a boycott-riaa t-shirt and 100 boycott-riaa stickers.

Oh, and just because, here's a screen shot of the Madonna.com website hack.

Update 4/23/02: "Like a virgin - Madonna hacked for the very first time" (thanks Frank!).

Posted by Mary Hodder at 12:04 AM | Permalink | Comments (2)
April 22, 2003
Innovation Investments: Risky... Sketchy... Non-Existant for the Music Biz?

Universal and EMI are suing Hummer Winblad, the venture capitalists, for "perpetuating global piracy through its $13 million investment in the controversial file-swapping service." Even though Napster filed for bankruptcy last June, ending the copyright infringement suits, record labels want compensation for losses they say resulted from Napster's prolonged life, which came because of investments by Hummer, as well as the $90 million Bertelsmann invested (see that lawsuit asking for $17 billion in damages). Although Hummer is expected to say that the investment they made in April 2000 happened when no court had ruled on the legality of P2P file sharing and Napster.

Suits like this, the threat of suits and the uncertain economy make investing in innovative technologies even more sketchy. Take a look at Cory Doctorow's notes from the Emerging Technologies conference happening now in Santa Clara.

In the meantime (thanks Frank!), Slashdot is discussing "All the Rave: The Rise and Fall of Shawn Fanning's Napster." Favorite comment: "My grandfather told me about how when he was a kid, they traded files on Napster, and how it got in trouble for something about "copyright." I'm not exactly sure what that is, but apparently, information wasn't free back then. I'm glad things have changed." It's not that copyright needs to go away; it's very important, but can we alter our arrangement for digital music business models enough so that statements like these aren't funny, they are just there? So that it's not about draconian all or nothing copyright?

Here is bit from the Salon review on the new Napster bio: "The story of Napster has to be seen, in the end, as a tragedy of wasted potential. Here was a system that improved everything about the way we listened to music, but nobody it touched was better off for it...."

Things seem to be reaching new levels of shrillness, between students at Penn State cut-off from networks or at Annapolis, students sued for writing google-like applications, or suing VC's who invested in something that at the time wasn't deemed illegal. Can we please consider some alternative to these measures, like the compulsory licensing, flat fee schemes we've been discussing, or anything else that will reframe the situation to a more rational tenor? I really don't think the Nancy Reagan "just-say-no" thing works. Not that music is equivalent to illicit drugs, but the abstinence argument definitely doesn't work for music, especially in the digital (media) world. There are alternatives to just suing everyone you can get your hands on for the sake of trying to get your old business model back, after it's been napsterized to smithereens. And there are alternatives to stealing, however, since the record companies and trade associations have most of the control, I think after 5 years of this mess, they need to get the memo: work with people, not against them.

Posted by Mary Hodder at 01:42 PM | Permalink
April 19, 2003
Comp Lic II

Donna Wentworth points to Matt Morse's latest on the compulsory licensing column by Fred Von Lohmann last week, where a flat fee scheme is discussed. Derek Slater addresses the privacy issues of tracking file sharing and watermarks. Ren Bucholz, who used to manage a radio station follows with some insights into artist compensation and the radio station model, and Alexander Payne responds on taxation and ISPs.

They are talking about the complexities of implementing a compulsory license system to track downloaded music, resulting in an accurate distribution of fees to the artists. One thought is to count watermarked songs as they pass through a pipe, no matter where they are going or who is getting the music. This way privacy for users could be ensured, with even the smallest artists directly compensated. And a portion of the fees would go to artists regardless of who owns the rights. Payne addresses the taxation scheme, suggesting that a government tax wouldn't be the way to go. Instead, he thinks an ISP based market scheme would work, where only downloaders are charged, instead of every user, since many users do not engage in music file sharing. However, the privacy issues are ripe for abuse and if the fees per song were small enough, might not be worth charging directly per user.

I like the central heat metaphor put forth by Greg Blonder, because it protects privacy, makes fees really low because everyone pays, which then encourages the eventual participation by many more than just those currently downloading. Americans like flat fees anyway; witness our cell phone system as compared to Europe. Paying per minute/per song fees isn't as fun. People get niggly over every 25 cent song (mobile minute), as opposed to paying a flat monthly amount, where they use services without thinking. It would also discourage the trading of burned cds, because why bother if a user can just download something reliable and easy? Imagine users emailing each other playlists and links to songs they wanted to share as a form of expression, commenting, and trading recommendations, to legal works.

Maybe there could be a maximum monthly download, say 1gb of watermarked content, before increased flat fees were applied. Also, because most P2P downloading is currently illegal, and because it is something people with particular music tastes engage in now, the content and distribution model mean that the entire internet population does not participate. But if music downloading were simple, cheap (and flat fee), and the available content was directed at a much wider range audience, I think a much higher percentage of those on the internet would participate, making the flat fee a more equitable and reasonable solution. It would encourage experimenting with unknown and obscure content, in formats that are also less popular, and might even be a way of allowing for, even encouraging and compensating, artists sampled by other artists, bringing back a dying category killed by the copyright wars. And, it would maintain user privacy.

Posted by Mary Hodder at 09:35 AM | Permalink
April 17, 2003
Let the Music Play

"What the [expletive] do you think you're doing?" says Madonna on listening to one of her downloaded, planted mp3s from some napsterlike service. Jon Healey writes that companies trying to start legitimate music downloading services are asking the same question of Madonna, because they feel she is hurting legitimate downloading business ventures. As mentioned before, she is making her "American Life" album available directly to fans. But the NY Times thinks it's all about the buzz. Wouldn't it be ironic if all the controversy in music came down to Madonna promoting herself: "'I live the American dream,' Madonna sings mournfully, going on to rap about soy latte, yoga class and nannies before saying, 'I just realized that nothing is as it seems.'" Okay, but the real deal is getting all artists paid, and getting fans who want mp3s off the hook for stealing and into some reasonable legal model for getting music. Not to mention stopping lawsuits against students who make search engines cataloging their university's servers, for 87 gazillion dollars.

There is also this argument comparing the current state of legal and illegal downloading of music to 19th century coal distribution. Apparently, coal carts would lose half their load to street urchins before making their first delivery, and various patented locking systems were invented to protect the cargo. Ultimately, the distribution model was changed from individual deliveries to one where central heating, provided by landlords who purchased in quantity solved the problem, saving everyone money and ending the coal theft model. So the comparison is to a distribution model where music theft wouldn't be attractive, but where everyone would benefit there too.

Posted by Mary Hodder at 11:00 PM | Permalink | Comments (2)
April 15, 2003
ISP Flat Fee for File Sharing Proposal

Fred Von Lohmann of EFF has a column in the Daily Princetonian about compulsory licensing. The idea is your ISP could charge a flat monthly fee so that both record companies, as well as artists, would be paid directly. Fees would be divided based on samplings of traffic and sharing similar to Nielsen ratings.

"The reality is that file-sharing is almost certainly going to remain a fact of campus life. The debate should be about getting artists and copyright owners fairly compensated, not about how many students should be expelled or how to install surveillance equipment on campus networks."

Posted by Mary Hodder at 01:40 AM | Permalink
April 08, 2003
RIAA / Peng Case Analyzed

Joseph Barillari, a student at Princeton, has done an analysis of the RIAA's complaint against Dan Peng (Princeton '05) where he concludes that Peng's service, Wake, is 1. more like a search engine in that it "indexed a pre-existing network" compared to Napster which created the network; 2. Wake indexed all public documents on the server; and 3. Wake is a pure search engine, and therefore protected under the safe harbor provisions of the DMCA. Check out the Daily Princetonian's article.

Update 04/08/03: Barillari is one of Ed Felten's students.

Update 04/10/03: Here is more analysis and links on all four of the cases.

Posted by Mary Hodder at 07:16 AM | Permalink | Comments (1)
April 07, 2003
Groovy Times in the Music Biz

Where to begin? You probably already know about the RIAA suing 4 students for untold sums (trillions has been bandied about, can we say judgment proof?). Ed Felten links to the complaints. Check out Kuro5shin: the RIAA defense. One solution being talked about that may be more realistic than going after the college students is to levy ISP traffic, which would keep Verizon, et. al. from having to reveal their customers and get them off the liability hook. But everyone else including Congress would have to agree so that the levy was applied equally across all traffic.

Tomorrow, All the Rave: The Rise and Fall of Shawn Fanning's Napster comes out, and there is an excerpt in the LA Times.

Sony is offering custom CDs online. EMI's copy protection is keeping CDs from play by DJs.

From Frank: Eric Garland (of Big Champagne) has posted his testimony before the California Senate Select Committee on the Entertainment Industry (Thanks Frank!). "So, even if we believe we can solve the peer-to-peer problem, we can take little comfort that this will stem the tide. A new approach is overdue. The music industry in particular must seize this opportunity now, four years after the fact. Remarkably, it is still not too late."

And then there's Radio Head's "Hail to the Thief" released early in rough form, on the darknet, two months before the official release.

Posted by Mary Hodder at 07:57 AM | Permalink
April 03, 2003
Digital TV and P2P

Reason.org has a piece on Digital TV, Prisoners of Digital Television, by Mike Godwin discussing the broadcast flag and government regulations, various economic solutions for digital TV distribution, and some solutions to these problems. In particular, the incredibly far reaching government regulations that would be necessary to institute the broadcast flag are discussed, including the changes to all of the obvious hardware, but also the non-obvious hardware like cell phones, medical scanners and astronomy equipment in order to control "what the content industry calls 'the analog hole' -- their unsightly term for analog devices' tendency to ignore or sidestep digitally based protections."

Hardware would have to be tamper-proof, operating systems regulation would affect the market, which might, if Linux were controlled, allow Microsoft to completely lock-in the market. And of course, he addresses the issue that computers and the Internet are fundamentally about making copies, and free flows of information, as well as looking at the spectrum, public policy, and consumer and broadcaster issues.

Godwin also mentions this interesting idea: "Nonsimultaneous delivery of premium content may constitute a new application for pure peer-to-peer distribution. (It would be a great irony if the Internet's peer-to-peer functionality, once regarded as an unmitigated problem, could be harnessed to enhance the delivery of commercial content in ways that financially benefit content producers even as they increase consumer choice.)"

Posted by Mary Hodder at 06:55 AM | Permalink
April 01, 2003
The Honest Thief: April Fools

The Honest Thief, previously mentioned, turns out to be a promo for a book, not a new company as the WSJ (IP reprint) and CNet reported in February.

"Well, guess what April Fools! The Honest Thief file-sharing venture was no more than a publicity stunt.

Our goal was first and foremost to get some attention for our book: The Honest Thief. Secondly we wanted to confront the public with the practice of honest stealing: the tools that everybody uses to have success. Very few people will openly admit that they use these tools. In this respect our campaign was an attempt to create success to get our message across: everybody, in one way or another, is an "honest" thief.

Whether we have failed or succeeded, we hope that people won't forget the honest part of honest stealing."

Update 04/03/03: Wired reports on this, including this: "Paul Grabowicz, director of the New Media program at UC Berkeley's Graduate School of Journalism, said that this hoax joins a long list of schemes perpetrated on the Net. 'It's common human behavior that's suddenly distributed over a global network. Instead of a couple of suckers, you could potentially get millions. I don't care how good a reporter you are or how reputable a media organization, you can get snookered by one of these things. Reporters really need to be on their guard.'"

Posted by Mary Hodder at 11:02 PM | Permalink
March 31, 2003
Just Say No To Intellectual Property

Peter Bagge's latest at reason.com.

Posted by Mary Hodder at 07:09 AM | Permalink | Comments (2)
March 29, 2003
UPDATE AND CORRECTION: Music, It's All About the Music

Big Champagne is reporting that Internet file sharing of music is big, really really big! 61 million Americans are downloading; in fact they report it's bigger than the record industry. Eric Garland of Big Champagne suggested the music industry embrace the change, but the record industry has rejected that (do you know anyone who would say no to a market this big handed to them like this?). At a Senate Select Committee on the Entertainment Industry hearing, Kazaa lobbyist Phil Corwin suggested, "The record business, in the digital revolution, has been a day late and a dollar short." He said that media consolidations, high CD prices, and the end of the trend to convert vinyl albums to CDs were the reasons the music industry was hurting now. Kazaa is developing a paid download site. But Matthew Oppenheim (RIAA counsel) said it was Napster that ruined their business.

Check it out: Legal MP3 Downloads is a new blog cataloging free legal MP3s. They don't happen to list Techn9ne yet, but download their whole CD, Absolute Power, for directly free... and check out their video "'F.T.I.' Video Spot 1."

Meanwhile CNet is reporting that copy-protected CDs will be shipped to the US market this year. Apparently Arista, using SunnComm encryption (whose motto is "lightyears beyond encryption") will do this soon. SunnComm recently agreed with Microsoft to make encryption that will protect CDs, and then MS will make tools that allow "second session" recording for personal use, but not allow the files to be copied for file sharing over the Internet. But the technology from this partnership will come much later. In the meantime, the CDs with just the SunnComm encryption will ship. SunnComm also developed the previous encryption that damaged some machines.

Update: 3/30/03 Thanks Frank! Here is the CA Senate Select Committee on the Entertainment Industry website and list of members. And check out this write up from Murray, the Chair of the Committee, on the music industry.

Update CORRECTION (5/24/03): When the above post was written, the CNet article stated that SunnComm had developed the encryption technology that damaged some machines, but Peter H. Jacobs at SunnComm has let me know that actually it was Midbar's technology that allegedly damaged computers, and not SunnComm's technology, which has damaged nothing. Also, SunnComm reports that their SunnComm/Microsoft hybrid copy control product is shipping complete, and not separately as CNet reported in their article. In addition, their product, MediaMax is supposed to allow some copying of purchased music for friends without allowing the sharing of that music on P2P networks, and therefore work as a "middle ground" solution.

Posted by Mary Hodder at 07:37 AM | Permalink | Comments (3)
March 26, 2003
A Viable Alternative to Slavery: Have Fanbase, Will Travel

Viral, direct marketing is nothing new, but for the music business and musicians, putting more and more of their work out onto the Internet, it's different. Madonna is selling her latest single, "American Life", available for download with a $1.49 payment via Paypal. Simply Red has released their eighth album, HOME, on their own label, simplyred.com, including lyrics and samples of the music. They apparently hope to make 300-400 percent higher returns than on standard record company contracts. Mick Hucknell refered to these contracts as "immoral" in a series of articles at FT.com about the music business and ditching the major labels. These marketing scenarios turn old models upside down, and while this isn't really new for the audience, who've downloaded directly for years, it is new from the business end. Madonna is doing this through her label, Warner Bros., but Simply Red is on their own. While Simply Red may be the game to watch these days, there are some other smaller artists out there giving this a try, like Eleni Mitchell. But the theory is that having an established fan base and quality music are the only way to make the direct model succeed.

Hucknell says he will never go back: "No, this is how I will make records for the rest of my career," he insists. "There's not a chance I'd go back to a major -- not a chance. I'll do distribution deals with people, but nothing beyond that."

On the other hand, Max Hole, at Universal, where he has licensed the Simply Red album for some territories, says that, "It's an option for a successful financially secure artist, but it's risky and expensive. At least with a major you are going to be paid. Generally, artists are better off with a major."

Posted by Mary Hodder at 09:01 AM | Permalink | Comments (1)
March 21, 2003
SonicBlue Declares Bankruptcy: Another Point for the Incumbents

And while they are reorganizing under Ch. 11, they will probably sell their ReplayTV and Rio MP3 businesses to D&M Holdings in Japan, and GoVideo Business Unit to Opta Systems, which leads to the question of what they will focus on in the future. And what about the million people who purchased the Replay system? And who will be responsible for the lawsuits? All unknowns, but it does seem that a combination of the economic downturn, less than enthusiastic adoption of digital video recorders, development costs for new technologies and the lawsuits pushed them to the point of restructuring and selling off assets.

According to the SJ Mercury News, they are declaring bankruptcy because of the "crushing debt" ($355 mil in debt verses $342 mil in assets) from acquisitions of new technologies ($150 mil) in order to move from microprocessors to consumer electronics. But last month, CEO Greg Ballard said, "Brace yourself. We are spending roughly 25 percent of operating expenses" defending the (Replay TV) case. "That amounts to $3 million a quarter on this court case alone," and that is money that could have been used to push the company into profitability or hire 128 new employees, he said. This was at the Digital Rights Summit.

It is difficult to tell based on these different remarks what portion of SonicBlue's troubles come from the lawsuits and what is a result of other circumstances. But it seems logical that if they've been spending 25% of their operating expenses on lawsuits, an equal amount of their management focus must be on them, as well as business strategies around their future liabilities. So while they said the lawsuits did not push them into bankruptcy, other remarks infer that the lawsuits didn't help, as they diverted management attention away from planning and running the company, and hiring new employees to create more innovative technologies leading to more business opportunities and potential profits. Also, I would imagine it's difficult to get additional investment capital when 25% of operating revenue is going to defending lawsuits. And if they are trying now to sell assets associated with the lawsuits, it would be silly to emphasize to the press the lawsuits as a major problem during the sale process. If I were one of the 28 companies on the other side of the Replayer lawsuit, I would feel quite satisfied with the efforts to cripple this company right now.

Posted by Mary Hodder at 04:54 PM | Permalink
March 20, 2003
A Different Kind of bIPlog Post

Our latest post below by Eddan Katz, a new bIPlog contributor, departs from our usual format. It more resembles the special reports prepared by the IP weblog class, but it is not a direct report as the others were. It is a piece of prose both telling a story about IP as well as demonstrating the tensions between copyright and free speech through words and links. As with all interesting text, it requires interpretation different than the usual quick read on a weblog. I hope you find it as exciting as I do, coming back to it as something worth reading again. I also encourage you to share Eddan's work as a Creative Commons: No Rights Reserved contribution to the public domain.

Posted by Mary Hodder at 05:45 AM | Permalink
Revolution is not an AOL Keyword*

You will not be able to stay home, dear Netizen.
You will not be able to plug in, log on and opt out.
You will not be able to lose yourself in Final Fantasy,
Or hold your Kazaa download queues,
Because revolution is not an AOL Keyword.

Revolution is not an AOL Keyword.
Revolution will not be brought to you on Hi-Def TV
Encrypted with a warning from the FBI.
Revolution will not have a jpeg slideshow of Dubya
Calling the cattle and leading the incursion by
Secretary Rumsfeld, General Ashcroft and Dick Cheney
Riding nuclear warheads on their way to Iraq,
Or North Korea, or Iran.

Revolution is not an AOL Keyword.
Revolution will not be powered by Microsoft on
The Next-Generation Secure Computing Base
And will not star Pamela Anderson and Tommy Lee
Or Larry Lessig and Martha Stewart.

Revolution will not promise penile enlargement.
Revolution will not get rid of spam.
Revolution will not earn you up to $5000 a month
Working from home
, because revolution is not
An AOL Keyword, Brother.

There will be no screen grabs of you and
Jeeves the Butler one-click shopping at My Yahoo,
Or outbidding a shady grandma on eBay for
That refurbished iPod 20-gig.
MSNBC.com will not predict election results in Florida
Or fact-check the Drudge Report.
Revolution is not an AOL Keyword.

There will be no webcast of Wil Wheaton boxing
Barney the Dinosaur on the dancefloor at DNA.
There will be no mob- or wiki- blog of Richard Stallman
Strolling through Redmond in a medieval robe and halo
As St. iGNUcious of the Church of Emacs
That he has been saving
For just the proper occasion.

Survivor, The Osbournes, and Joe Millionaire
Will no longer be so damned relevant, and
People will not care if Carrie hooks up again with
Mr. Big on Sex and the City because Information
Wants To Be Free
even while Knowledge Is Power.
Revolution is not an AOL Keyword.

There will be no final pictures from inside the
World Trade Center in the instant replay.
There will be no final pictures from inside the
World Trade Center in the instant replay.

There will be no RealVideo of 2600-reading,
Linux-booting white hat hacktivists
And Mickey Mouse in the public domain.
The theme song will not be written by Jack Valenti or
Hilary Rosen, nor sung by Metallica, Dr. Dre,
Christina Aguilera, Matchbox 20, or Blink-182.
Revolution is not an AOL Keyword.

Revolution will not be right back after
Pop-up ads about eCommerce, eTailers, or eContent.
You will not have to worry about a
Cookie in your browser, a bug in your email, or a
Worm in your recycling bin.
Revolution will not run faster with Intel inside.
Revolution, dude, is not getting a Dell.
Revolution will increase your Google rank.

Revolution is not an AOL Keyword, is not an AOL Keyword,
Is not an AOL Keyword, is not an AOL Keyword.
Revolution will be no stream or download, dear Netizen;
Revolution must still be live.

*See generally Gil Scott-Heron, The Revolution Will Not Be Televised.

Posted by Eddan Katz at 05:45 AM | Permalink | Comments (74)
March 19, 2003
Hilary Rosen's Dream

As she received the "'Harry Chapin Humanitarian Award' from the National Association of Recording Merchandisers, or NARM, in Florida," Rosen cited Martin Luther King's inspirational words: "Social change cannot come overnight, but we must always act as though it were a possibility the very next morning."

However, inspiration was not the only part of her speech; she also mentioned the self-help, such as sending poisoned files over P2P networks. Regarding the Verizon case, she mentioned that, "Verizon has unfortunately turned this case into a bogus claim to protect their members' privacy rights. When you are on one of these p2p systems and have opened your hard drive and its contents to the network, you have given away your own privacy." Yes, but what about all the people who didn't open their harddrives? They are part of the subpoena to Verizon as well. And what about the idea that the ISP's are not responsible for what users keep on their harddrives?

Meanwhile, the RIAA sent out letters to 300 companies (35% are tech companies) about illegal file sharing on their networks.

Gotta love that high road/low road thing they got goin'. In fact, I think Jack Valenti has been to the same dance party recently. Somehow they got their causes mixed up with both the high ideals of MLK and social change, 'duty, service, honor, integrity, pity, pride, compassion, sacrifice....' (~Jack) and terrorism and organized crime. They're spinning more than records.

Update: 2/19/03 Wired reports on Texas Rep. John Carter, with RIAA support, who want to jail downloaders (college students!) of illegal files.

Posted by Mary Hodder at 08:38 AM | Permalink | Comments (1)
March 10, 2003
Like Watching Five People Play Blindman's Bluff on Stilts

Confusion is the theme of David Pogue's NYTimes article on the current state of buying music on the Internet. He points out the five: AOL's MusicNet, PressPlay, Rhapsody, MusicNow (up in a month) and RealOne MusicPass. All offer very complex pricing arrangements, but at least they're taking a stab at the market, even if some artists are holding material back, with the services all tending to offer the same 250,000 songs. He says this would be amazing if they weren't following another amazing invention: Napster, KaZaa, etc. But maybe the record companies are finally getting the clue, and users are getting fed up with all the poor quality files (planted by... we couldn't guess) that might have the effect of steering users from the darknet to legitimate downloads. These music services need to spend some time making the right market arrangements before this takes off. And hopefully they do get it right.

Posted by Mary Hodder at 10:05 PM | Permalink
February 26, 2003
Eventually Someone Will Succeed at the Online Music Filesharing Biz

Roxio, purchaser of the Napster assets last Fall, is resurrecting Napster (their site says "under construction"). From Europemedia: "Roxio plans to profit where above-board music download services like the music industry's antiseptic PressPlay and MusicNet websites failed by ensuring it has agreements with all the record labels and access to the bulk of their catalogues before launch."

Shawn Fanning will consult, and they will offer per-track songs as well as subscriptions but not before they close deals with the likes of Universal Music Group, Sony Music, Warner Music Group, Bertelsmann AG and EMI. "The record labels know we want to do this the correct way and the legal way," said a Roxio spokeswoman. "And it will be top-tier content, not unheard-of bands you see now with most of the subscription services," she added.

How disappointing. One of the great things about online content is the ability to market, at very little cost, new bands. Napster might do better using this opportunity to expose new talent to the public than what currently exists.

AOL is also starting a music sharing service, trying various pricing models such as streaming/downloading for $8.95/mo (with no copying? has anyone seen AOL's security track record?), or, in typical AOL form, they will charge $17.95 per month for the right to burn 10 songs onto a CD. Reminds me of their dialup service. They don't call it almost on line for nothing. Hopefully users will see that for 10 songs (with no store, no packaging, no pre-burned cd), they should pay a more reasonable price.

Posted by Mary Hodder at 06:29 AM | Permalink | Comments (1)
February 24, 2003
There Will Always Be a Jack Valenti

[Updated 022503, 8:59am: Corrected misspelling in author's name.]

Donna Wentworth at Copyfight has an interesting synthesis of conversation going on Declan McCullah's copyright legislation article on News.com, and JD Lasica's response to Declan. Declan thinks that rather than Wyden and others proposing new "fair use" legislation to make the DMCA more consumer oriented with labeling requirements for DRM protected products, those sections of the DMCA that restrict too much should be repealed. JD says that even if it happens, which he believes it won't, those same interests with a stake in the DMCA will continue to find new ways to use DRM to restrict the flow of information.

Meanwhile, the NYTimes says that Jack Valenti is taking the moral high ground in a speech he was to give at Duke Law School. "He plans to shift his emphasis to more basic principles: 'duty, service, honor, integrity, pity, pride, compassion, sacrifice....'" Dave Winer notes the moral hypocrisy with that, where the artists who so generously sacrifice rarely get compensated....

One interesting thing Declan mentions is that the consumer electronics industry is the target again with labeling of products. Considering that they are a $500 billion a year industry (which includes universal garage door openers and printer cartridge refill companies but also DVD and CD makers), being pushed around by the RIAA/MPAA content industries at $40 billion a year, you'd think that the electronics people would be able to fight this more than they appear to now. "Talk about the mouse trying to own the elephant herd." Seems more like greed, unfairness hiding behind the law, anti-trust violations, failing business models... are at work, to name a few.

Update: Jack Valenti kicks off his "2003 Morality Tour" with the Duke speech (text here).

Posted by Mary Hodder at 11:51 PM | Permalink
February 23, 2003
The Honest Thief

The WSJ (sub. req.) (IP reprint) and CNet report a new venture by Pieter Plass, a Dutch construction CEO and owner of PGR BV (a software company). His new company, "the Honest Thief," will help the next KaZaa or Aimster start file sharing, in order to make "some honest money," where they "hope The Honest Thief will become to file sharing what the Swiss are to banking." He created this company based on the ruling last March by a court in the Netherlands that said P2P file sharing, and KaZaa, were legal. The decision is under appeal.

Apparently another company, Transparency Software LLC (US) makes software that blocks P2P file sharing of copyrighted materials and is also considering starting a P2P biz in the Netherlands, but they would also not share anything that is unauthorized.

While these companies may be clever in exploiting differences between national laws and the state of P2P file sharing, I can't help thinking this is a plan B, where in lieu of the music industry recognizing the huge media market (50 million downloaders!) placed before them, prime for the taking, their efforts have caused a situation inviting all sorts of crazy small work-arounds. There is a simpler solution: the RIAA/MPAA etc. could accept some piracy as a cost of doing business, and start the real business of file sharing content consumers want, most of whom will pay for it, if it's simple, good, and reliable.

Posted by Mary Hodder at 08:17 AM | Permalink
February 19, 2003
Business Models for the Hippest of Record Companies

Go with the flow, man. And get crackin! Profits are down for RIAA type record companies, but hey, Smithsonian Folkways Recordings is making bank to the tune of a 33% increase in profits this year. They use recordable CD's, or CD-R's to copy their catalog, thereby ensuring that their extensive catalog never hits the dust bin. They've been doing this since 1996, creating a "just-in-time" model for delivery. (Every time they get an order, an employee makes 5 copies, one for the order and 4 for future orders.)

With 2,168 titles dating to 1948, they cover works from Pete Seeger and Phil Ochs to "Music From Western Samoa: From Conch Shell to Disco" (1984) and "Folk Songs of the Canadian North Woods" (1955). They are also trying out small runs of CDs, of which their first, "Bells & Winter Festivals of Greek Macedonia," was so popular, they put it into the regular retail catalog.

So, what are the rest of those less-than-hip record companies waiting around for? Hop to it! Make love, not war, with your (netgen, filesharing, the internet-is-an-environment-not-a-tool) customers!

Posted by Mary Hodder at 01:14 AM | Permalink
February 13, 2003
"A Hairy Kiss From a Maiden Aunt"

Or, "Some bands want you to swap music files over the internet." This from the Guardian, and Ben Hammersley, who compare MP3s to the kiss mentioned above. Instead, live concert recordings are much favored by some. Bands like The Dead (who has long allowed non-commercial trading of show recordings) and Phish let fans DAT tape the shows and then share CDs, using a file format called Shorten, on a person-to-person basis. Fans also trade CD's via websites like www.etree.org from bands allowing more than person-to-person sharing, but apparently, it's all pretty low-key. Even Clear Channel is apparently offering their services to bands who want to sell CD's of the performance they just attended, 5 minutes after the show closes.

"And there lies the rub. For bands whose main audience is the live one, allowing fans live recordings of the previous night's show could be a winner. For the more possessive record labels, it's a potential nightmare. When stadia could shift 20,000 CDs in an evening and provide free advertising for the rest of the tour, it is so potentially lucrative, it might just be the one that forces labels to reconsider their policy towards file sharing." Couldn't have suggested it better myself.

Posted by Mary Hodder at 06:36 AM | Permalink | Comments (1)
February 09, 2003
Conflicts of Interest at AOL/Time Warner

AOL/Time Warner is the subject of a Salon piece, "AOL's Jekyll and Hyde Act" discussing the Verizon case, where AOL has yet to say much, because as both an ISP and the world's biggest media company, they don't want to comment on a case they are not apart of, but might affect them. AOL has been asked to remove files from websites, after those "copyright-sleuthing bots", Internet scanners that look for files that "seem" illegal, based on "as little evidence as a filename that appears fishy, like 'MetallicaSong.mp3' found 'harry potter book report.rtf'" on an AOL hosted website. But AOL has never been asked to turn over a subscriber's name, by invoking sect. 512h of the DMCA, as recently happened to Verizon.

One reason AOL doesn't want to anger subscribers is that they already face losing a lot of customers to other broadband carriers. Also, the article speculates about AOL subordinating to Time Warner, the content side. But the most interesting piece is this:

"The ISPs get thousands of these things, and they get a not insignificant percent that are not just wrong but are spectacularly wrong," says Cohn of the Electronic Frontier Foundation. "And if the Verizon decision under 512h is upheld, we'll start seeing the same thing for people's identities, and they're going to be wrong in the same percentage that they're wrong now." That's because a key problem with the DMCA, critics of the law say, is that it provides little incentive for copyright owners to make sure that they're providing the court with accurate claims. "They may as well make these things as broad as possible," Cohn says. "There's nothing in the system to make them do otherwise. It's just takedown, takedown, takedown."

Posted by Mary Hodder at 09:26 AM | Permalink
February 04, 2003
MS Makes DRM Tools For Free

Well sort of. Microsoft is investing $500 million in DRM, hoping that by giving away the technology for free, they will make Windows Media audio and video the preferred formats, with both electronics and media companies, as well as consumers. MS worries about copy-protected CDs that won't play on PCs. But even electronics manufacturers and media companies apparently wonder whether MS has a real interest in DRM, or is just protecting the Windows monopoly. However, according to the article, Jupiter Research, "About 40 percent of 15- to 17-year-olds buying a CD in the last 12 months said downloading influenced their purchase; 28 percent had copied music from a friend." And it also mentions the paper published by some MS employees (see bIPlog post) saying, "DRM technology would likely fail because of consumer resistance to content protection and acceptance of file trading. The researchers concluded 'that a vendor will probably make more money by selling unprotected objects than protected objects'."

And the Internet Streaming Media Alliance (ISMA) just announced it is finishing the MPEG-4 standard for open review at the April convention of the National Broadcasters Association. This MPEG-4 standard will include DRM. The lack of DRM has been a problem for the adoption of previous MPEG standards, which are considered to be open standards, verses the Windows and Real media standards which are proprietary.

So is the moral quagmire for the digital rights manager whether to use a proprietary system or not, or just run with the market for downloading and make something people want enough to pay for that is simple to use and comprehensive in content, forgetting the DRM altogether? I guess you know what I would do.

Posted by Mary Hodder at 09:14 AM | Permalink | Comments (5)
February 02, 2003
File Sharing Liberates Rock Stars from Hierarchical Tyranny of Record Sales

Doonesbury on the future of the music biz, where Britney might go door-to-door.

Posted by Mary Hodder at 02:27 PM | Permalink | Comments (1)
February 01, 2003
3 Billion Downloads of Music a Month: That's a Lot of Music!

Salon has a piece today called, "Embrace File Sharing or Die" written by John Snyder, president of Artist House Records, and his son Ben, of Gas Marketing/Management, a grassroots marketing company that serves the music industry.

About Eldred and copyright: "This is a clear case of a multinational conglomerate using its political muscle to the disadvantage of everyone but itself. So, instead of creating new content and allowing long-standing laws to work, the entertainment business frantically seeks to manipulate the process to its own ends. And it does this with the obsequiousness of penurious politicians and a supinely acquiescent Supreme Court. That is the best the establishment has to offer, and it has nothing to do with progress or the good of the society."

They call the entertainment industry on the current mess with radio and homogenization of content. They note the rising prices of CD's, bad economy and other better ways to get entertainment bang for the buck as reasons why CD sales have dropped and that EBay and Amazon have expanded their online businesses by paying attention and working with the internet, not against it, which the RIAA could learn from.

MORE...
Posted by Mary Hodder at 09:59 AM | Permalink
January 29, 2003
KaZaa Sues the RIAA

KaZaa, more popular now than Napster ever was, has sued the RIAA, "...asserting that they have 'obscenely' abused their copyright powers." This follows a ruling two weeks ago where a California judge ruled that Kazaa could be pursued in the state.

The Economist recently wrote about the copyright wars, concluding "...Certainly, the content industries are likely to experience the most upheaval. They may be able to retard the growth of copying on the internet for a time, but they cannot hold back the advance of technology altogether. This will undermine their existing business models, based as they are on print, analogue broadcasting and the sale of physical products such as compact discs. Even if the "total copyright protection" scenario sketched above prevails, content providers will have to reinvent themselves."

Posted by Mary Hodder at 09:20 PM | Permalink
January 27, 2003
NET Act May Be Coming to You

Declan McCullah of Cnet recently wrote a piece on an obscure law called the No Electronic Theft Act (1997) which could be used soon by the Justice Department to prosecute P2P file sharing pirates. Several US Senators sent a letter last summer to the DOJ asking for this, but not much came of it. However, according to the article, the RIAA and the Business Software Alliance have been active with the DOJ in pursing this. Apparently there have already been some successful convictions using the NET Act, but not for P2P piracy. While the odds of being the test case are low, it may be that someone somewhere soon is the target. Of course, if this happens, the NET Act won't be obscure for long.

On a related note, a consortium of music sellers including Best Buy, Hastings Entertainment, Tower Records, Trans World Entertainment, Virgin Entertainment and Wherehouse Music has decided to collaborate to sell digital music online. So there may soon be better alternatives to P2P piracy on the way.

Posted by Mary Hodder at 08:06 AM | Permalink | Comments (1)
January 25, 2003
Downloading Movies, Games and Music at the Office May Become More of an RIAA Target

Websense.com, which helps businesses such as Microsoft and Nokia manage employee internet use, published a study (press release), "Music: Peer-to-Peer File-Sharing Web Sites Grow 300 Percent, Driven by Swapping Movies, Games and More." In other words, games, software and movies are a large percentage of downloads (often very large files), which Websense estimates take place largely in work places, because only 17% of American households have highspeed home connections. Websense suggests limiting P2P application use by network administrators at work.

If this sort of traffic were blocked more at offices, would it mean employees would go home and order DSL or cable? Would they purchase privacy software to limit spyware, to prevent tracking of clickstreams at home? Websense reports that 64 percent of companies don't do any monitoring of employee P2P downloads so it doesn't appear to be a big issue yet. But Integrated Information Systems, an Arizona company, settled a lawsuit out of court for a $1 million with the RIAA over employee stored MP3s.

Posted by Mary Hodder at 04:13 PM | Permalink | Comments (2)
January 15, 2003
Napster: The Life and Death of a P2P Innovator

Napster didn't just make P2P a household word -- its legal history was an acid test for the nascent peer-to-peer industry, and established precedents that continue to affect file swapping today. The company's legal battles were watched by the public and scrutinized by the press until Napster took its last breath. This condensed timeline details Napster's beleaguered legal history (requires Flash and Javascript).

Posted by Stephanie Hornung at 12:39 PM | Permalink | Comments (1)
January 09, 2003
RIAA Admits Illegal Music Sites Here to Stay

Finally the RIAA admits they must respond to this by offering good legal alternatives, in part so that illegal downloading of online music approaches tolerable levels, comparable to shoplifting in stores. "Illegal file sharing has to be driven into the underground by making legitimate offerings compelling," Cory Sherman said. Musicnet, Pressplay, Rhapsody, Rioport and Emusic are mentioned in the article as legitimate online music sites, but it says there are almost no sites offering legal music downloads in Europe.

Fred Von Lohmann makes a good point in an interview with TechFocus: "... in response to the last revolution in distribution, namely broadcast radio and television, copyright owners learned to let go of the need to control and count every single listener and viewer. And it turned out to work pretty well for all concerned."

Ed Felten adds to the discussion that counting watermarks and other current ideas for measuring music downloads are problematic because people will over or under report what they actually listed to and that something like the TV rating system may be a better way of compensating artists for their work.

MORE...
Posted by Mary Hodder at 10:32 AM | Permalink
January 08, 2003
Blank CD Levy in Canada Grows With No Distribution to Musicians

Wired has a piece about the Canadian Private Copying Collective (CPCC) which collects CN$.21 per blank CD (pdf), to compensate musicians for the copying, both legal and illegal, of music, though less than half the blank CD's sold in Canada are used for music. Last year the CPCC collected CN$.05 per CD, but are proposing CN$.59 per CD for 2003, plus new fees for other devices like compact flash cards and recordable DVDs. Protests are being waged, especially because the CPCC has yet to distribute to musicians any of the CN$28 million they have collected over the past couple of years. The CPCC says this is a very complicated process requiring payments to as many as 12 entities per song.

The Canadian Coalition for Fair Digital Access, a 16-member group that includes Intel, Dell, Hewlett-Packard, Sony and Apple, as well as Wal-Mart Canada, Costco, Staples, Radio Shack and the Retail Council of Canada has made one of the formal protests to the Copyright Board of Canada because they don't believe consumers should subsidize the music industry, when half the blank CD's aren't used for music. "It's not about fairness at all," said David Basskin of the Canadian Musical Reproduction Rights Agency. "If it was about fairness, these large U.S. multinational companies wouldn't be trying to deprive Canadian musicians of royalties they are legally entitled to."

Posted by Mary Hodder at 09:17 AM | Permalink | Comments (1)
January 07, 2003
You're Nobody Until Somebody Loves You Enough To Want Your Bootlegs

...in the music world, according to a NYTimes article on the trading of bootleg concert recordings. While bands like the Grateful Dead and Pearl Jam allow the free recording and trading of their live performances, it is a copyright violation to do so with any performance where no permission is given. But artists have to object before the RIAA will step in, and as the article says, "Artists who prosecute individual fans for merely indulging in music beyond their official CD's would be about as cool as a Guy Lombardo record."

Live show recordings are typically traded by mail to assure highest quality, but traders and fans meet on the Internet to talk about shows, compare notes and arrange trades. Also, some fans believe they are preserving the legacy of performances, sort of the way heirloom seed traders have preserved heirloom vegetables after the Ag industry standardized food production down to just a couple of homogenized varieties. Listening to a live 1975 bootleg of the Rolling Stones' concert "L.A. Friday" may be a more authentic and vivid experience than listening to a heavily mixed and managed studio recording of the same music "Love You Live," the band's official concert album of that time. Kind of like the difference between eating a Brandywine or Striped Marvel tomato and having a square supermarket tomato.

Posted by Mary Hodder at 09:39 AM | Permalink | Comments (2)
January 05, 2003
You're Buying the Key to Content, Not the Content

The NY Times reports that a DRM switch inside cable boxes allowing control over recording of pay-per-view and other special programs may soon be turned on by media companies wanting to charge additional fees for recording, on top of charging to watch the program at the time broadcast.

Media companies are investing in DRM technologies and companies in an attempt to control where digital content goes, but they may find that consumers feel that all the rules make the product not worth it. And what about fair use? Even commenting on these works by copying a snippet to write about it will be impossible if the copy disappears after a few hours or is locked up.

"You're not buying music, you're buying a key," says Larry Kenswil, president of eLabs at Universal Music Group, the world's largest record company, which offers 99 cent digital singles "...that can be burned to a CD but not copied to certain portable devices, like the Apple iPod. 'That's what digital rights management does: it enables business models.'" But if the business model so favors the business and not the consumer, then what? If you throw a party and nobody comes, is it still a party? What if consumers still think they are buying music?

Posted by Mary Hodder at 09:54 AM | Permalink | Comments (1)
January 03, 2003
Elvis in the Public Domain? Oui!

Copyright protection for many recording artists from the 1950s is about to fall off in Europe, allowing their works to enter the public domain in the EU. This brings up all sorts of issues, like what to do about European import CDs sold at many US record stores, advertising uses of the music and American companies being forced to work with smaller bootleg companies. This particular era of music represents a time when the recording industry went through rapid technological innovation producing recordings far more sophisticated than in the past, both in content and style, and so the resulting 1950s music is far more marketable now.

For more info, see Dennis Karjala's chart comparing copyright protection in the US and the EU for various kinds of works.

Posted by Mary Hodder at 09:21 AM | Permalink
December 24, 2002
"What Do Intellectual Property Owners Want?"

Andy Oram writes about the new censorship, how DRM should be developed, and how it will fail because developers want to take neither the time for an open review process with other researchers, nor are they cooperative toward DRM as the security profession tends to attract people that are averse to using systems that protect people's rights.

Oram says "perfect control will fail. That's the first grounds for optimism.... The second is that people will get bored of controlled content and will turn to open systems that are intrinsically more exciting and engrossing." See his article "Stop the Copying and Start a Media Revolution." And, "third is that the public fights back. The ElcomSoft case shows that the public can understand the issues and stand up for its rights when given a voice."

Posted by Mary Hodder at 12:36 AM | Permalink
December 23, 2002
MP3.COM Changes Artist's Terms of Service 1/15/03

Vivendi is changing the terms for artists at mp3.com. The new rules, as reviewed by Azoz and MacWizards Music (mp3.com doesn't appear to allow the unregistered to visit the section of the site showing these terms), go into effect January 15, 2003 changing the way music is priced, shared and the artist's program works. The new terms are significantly less favorable to independent artists wanting to share their work with the public for free or through netCD's, which will disappear entirely in a couple of weeks.

Posted by Mary Hodder at 11:34 PM | Permalink
MacWizard's Analysis of Music Sales Refutes RIAA Arguments on Piracy

George Ziemann, owner of Azoz and MacWizards Music, has analyzed RIAA statistics on music sales, concluding the record industry released 25% fewer new works over the past two years compared to previous years (PDF: 38,900 in 1999, 27,000 each in 2000 and 2001), while sales have only dropped 6% over the same two years.

He points out that sales only started declining after Napster shut down, during the past two year's recession, when the average CD price was pushed above $14. If he is correct, the Music Industry released less new works, are more profitable per work (PDF: Dollars per released work, for 1999: $376,632.39, 2000: $533,481.48 and 2001: $507,407.41) and made more per individual CD sale. It appears from the RIAA's own spreadsheet (pdf) that despite the reduced product, they made money in 2001 on CD's, and lost on dying categories such as cassettes, CD singles (does anyone pay $4.50 for a single these days?), LP's and music videos.

Also, the RIAA stopped reporting on sales of Singles starting in 2001 (PDF). But Single sales are often held up as the big loss for record companies in terms of piracy losses, at around $50 million in 2000. He points out that the losses they claim at $4 billion from piracy can't just be made up from Singles and in fact that $4 billion number is very difficult to pin down otherwise.

MORE...
Posted by Mary Hodder at 01:35 PM | Permalink
November 29, 2002
"Undercooked and on the Web"

This NY Times article suggests that artists are more worried about the problems of fans downloading demo tapes or half finished works from the Internet verses piracy of copyrighted works. One band is System of a Down, whose latest album, "Steal This Album," is a title spoof Abbie Hoffman's "Steal This Book." The band is open about their thoughts regarding the leaker of the unfinished songs: "If I knew (who it was), then someone's head would be broken in," says Daron Malakian, the band's guitarist.

Serj Tankian, the band's singer, said: "I'll tell you, with this whole Internet thing, I have no problem with it. I like the fact that kids can download stuff and experience different kinds of music and check out new bands (See this NYTimes article on the kids latest efforts to keep the downloading alive and David Kushner's Rolling Stone piece on the failings of DRM). Even if finished material comes out two or three weeks ahead, it's no big deal to me. It's the trading of unfinished songs that bothers me."

Sounds like a band supporting the sharing of works over the Internet to me, a la Mr. Rogers in the Betamax case.

Posted by Mary Hodder at 09:27 AM | Permalink | Comments (1)
November 26, 2002
$14k for a Hard Drive Full of Entertainment? Can I Sell It on Ebay to Pay the Bill?

The Danish Anti Pirat Gruppen (Anti Piracy Group) issued invoices of $14k to each of about 150 KaZaA and eDonkey users for illegally downloading copy-protected material. The DAPG went to court with screen shots of users' lists of shared files, in an effort to get their personal information from ISPs. Users were charged $16 per CD and $60 per movie, although this doesn't seem to take into account misnamed or bad files, or files the user owns through legitimately purchased CDs and DVDs.

Interesting, too, is the case last Spring in which KaZaA was ruled to be "perfectly legal" in a Danish court, regardless of whether some uses of it might be illegal.

Posted by Mary Hodder at 08:35 AM | Permalink | Comments (2)
Jurisdiction in DeCSS Cases Decided

The CA Supreme Court decided yesterday (Reuters) that Matt Pavlovich (who is an Eagle Scout, by the way, as one of his defense attorneys mentions) couldn't be sued in CA by the DVD Copy Control Association because he lives in Texas, and posted DVD decryption software, in violation of the DMCA, as a student in Indiana. Therefore CA courts do not have jurisdiction, although a suit could be brought elsewhere (Law.com).

About 500 others living outside CA were also sued in CA for posting the same DeCSS code, which seems to be everywhere on the Internet at this point. One of the three judges was interested in having the cases brought in CA because of the movie industry's economic impact in the state, in a single combined forum, but ultimately decided there was not jurisdiction to do this either.

Posted by Mary Hodder at 07:41 AM | Permalink
November 24, 2002
Navy Court Martials and the RIAA

What do they have in common? You guessed it! Illegal downloading of IP.

From The Register: RIAA orders US Navy to surrender. The Navy confiscated 100 computers alleged to contain illegal music from midshipmen, because the RIAA "reached out" with letters to 2,300 colleges and universities, including Annapolis, asking educators to assist in stopping piracy of copy protected materials. Punishment for the midshipmen could include "court martial to loss of leave and other restrictions."

Posted by Mary Hodder at 07:37 PM | Permalink | Comments (5)
KaZaA in Court to Decide Jurisdiction

Tomorrow, a Federal Court in LA will decide whether KaZaA distributor Sharman Networks, incorporated on the island of Vanuatu and doing business in Australia, can be legally pursued by Hollywood in the U.S. Sharman does no business in the US, but its peer-to-peer technology vendor, Blastoise (dba Joltid, and founded by Niklas Zennström, also a founder of Kazaa/FastTrack) is located in the U.S. If Sharman loses, their case may be added into the Streamcast and Grokster case, and might be an interesting comment on jurisdiction involving Internet business disputes.

Posted by Mary Hodder at 06:51 PM | Permalink | Comments (1)
November 22, 2002
A DMCA Déjà Vu at Princeton?

Good thing for Alex Halderman ('03) that Ed Felten is on the faculty. The Princeton senior could use his professor's seasoned advice right about now on the perils of doing computer science research under the rule of the Digital Millennium Copyright Act.

On Monday, Halderman presented his junior paper, "Evaluating New Copy-Prevention Techniques for Audio CDs," at the 2002 ACM Workshop on Digital Rights Management -- an act that could be seen as a violation of the DMCA.

MORE...
Posted by Maggie Law at 10:55 PM | Permalink
November 17, 2002
Darknet's Future

At the Association for Computing Machinery conference workshop on DRM tomorrow, four (Microsoft) researchers give the scholarly take on Darknet and the Future of Content Distribution. Darknet is a collection of networks and technologies used to share digital content. Interesting points: the legal system can disable the current darknet systems, but as users become more sophisticated networkers, smaller more personally established networks will take over and DRM will be useless for tech-savvy pirates. Examples: think about IM-ing a DVD to a few people, or small world networks strung together to quickly diffuse content.

Their conclusion: "There seem to be no technical impediments to darknet-based peer-to-peer file sharing technologies growing in convenience, aggregate bandwidth and efficiency." Also, they believe strong DRM may be a disincentive to legal commerce as people worry about privacy issues, and movie pirating is less of a problem because rentals on or offline are so cheap and easy, in contrast to the current state of music.

MORE...
Posted by Mary Hodder at 12:18 PM | Permalink
Terrorism and Copyright Piracy The Same?

Star Wars producer Rick McCallum is quoted in the Australian IT News as saying that copyright protection needs to be "as concentrated an international event as the war on terrorism." Funny, but I thought threats to personal safety took a higher priority than those to copyright protected works. He also claimed that 50% of music industry revenue had been lost to illegal file sharing, and the same would happen to the movie industry if they didn't stop it. The latest comScore study shows a 25% loss in music revenue over last year, and far less in previous years.

Posted by Mary Hodder at 12:55 AM | Permalink
November 16, 2002
Safe Haven for Kids

The House of Representatives unanimously approved the Dot-Kids Implementation and Efficiency Act (pdf), which its proponents say will help protect kids from porn and sexual predators. It now moves to the President's desk.

MORE...
Posted by Ethan Eismann at 09:53 AM | Permalink
November 15, 2002
Are Music Companies Really Getting the Message?

In the latest indication the music industry finally seems to responding to consumer demands for more personalized music, a couple of new deals have been announced to increase the number of individual songs that can be downloaded and burned onto a CD. The San Francisco Chronicle has a story about the new efforts.

Posted by Paul Grabowicz at 03:27 PM | Permalink
Opposition to Music Industry Push for Campus Surveillance

The Electronic Privacy Information Center has written a letter critical of music industry efforts to get college campuses to monitor student use of file trading services.

The EPIC letter, sent to college and university presidents, warns that such monitoring is "incompatible with intellectual freedom" and would have a chilling effect on creativity. PC World also has a story on the letter.

Posted by Paul Grabowicz at 11:38 AM | Permalink
November 11, 2002
Media Encryption Across the Atlantic

Both BMG and EMI are apparently planning not only on protecting all their music with encryption, they don't care if you can't play it on your player. BMG even developed a website to promote copy protection (at least its pretty). This doesn't seem like a very good way to do business, but when you have such a large share of the media market, I guess it doesn't matter. Just ask Microsoft.

MORE...
Posted by Stephanie Hornung at 12:19 AM | Permalink | Comments (2)
October 21, 2002
SOS! Save Our Streams!

As of today, Internet radio stations are required to pay high royalty fees (2 cents for every 100 Internet listeners per song, with a minimum of $500 annually), retroactive to 1998, which may put many of them out of business, or at least off the web.

The Small Webcaster Amendments Act of 2002 would have offered other options for all parties involved, but it was stalled in the Senate this past Friday -- *just* in time to forestall benefit to the small webcasters (or buy more time for campaign contributions to come through? hrm...).

MORE...
Posted by Stephanie Hornung at 12:33 AM | Permalink
October 06, 2002
Dangerous? I Guess I Could End Up with Carpal Tunnel...

The anti-piracy group Music United for Strong Internet Copyright (MUSIC) launched a public education campaign last week, including a TV spot and a newspaper ad. Participating artists include Madonna, Elton John, Eminem, Jay Z and Britney Spears.

According to the website, "copying and distributing copyrighted music without permission is wrong, dangerous, and against the law." I'd say this sentence is a little redundant if you take the stance of this group -- but I guess that just PR speak, eh?

Posted by Stephanie Hornung at 05:08 PM | Permalink
October 04, 2002
Will they be at your door next? (Part 2)

That scraping sound you hear is U.S. District Judge John D. Bates scratching his head over the DMCA right now. The AP reports today that faced with making a decision on the RIAA v. Verizon Communications saga, he's having trouble interpretting the legislation that Congress passed in 1998, lamenting that they "could have made this statute clearer."

Meanwhile, music companies, file swappers, and ISPs are holding their breath....

Posted by Maggie Law at 04:32 PM | Permalink
September 17, 2002
Will They be at Your Door Next?

This is old news (sorry), but new to me: On August 26th, the SF Chron reported that the RIAA wants YOU (yes, you) to face criminal and civil charges for file swapping.

Well, not you exactly... yet. The Recording Industry Association of America has singled out a "very egregious" KaZaa user who it claims is sharing 666 files. (Egregious? That's positively satanic!) In an interesting twist, Verizon Communications is fighting the subpoena to divulge the offender's identity in the name of customer privacy rights. The song files in question are stored on the customer's hard drive, not on Verizon's network. Therefore, they argue, it stretches the DMCA beyond its true scope.

Posted by Maggie Law at 01:12 AM | Permalink | Comments (1)