Last week I had two posts on the question of whether labels might periodically remove copyrighted works from subscription services (Content Subscription Shenanigans and No Guarantees with Content Subscriptions). Access may be granted at one point in time and denied at another. I think this is a legitimate concern that should be addressed by those who promote subscription services. I've also come across further evidence of this possible music industry tactic.
An entertainment lawyer familiar with the issues (anonymous by request) has said that labels sometimes find it in their best interest to keep a good portion of their catalog in an inactive status (not available in physical formats). According to this source, label heads have told him that they don't stop selling certain artists not because they don't believe they can sell the music but, rather, they stop selling some artists' work so that they can clear the market for others. In other words, the strategically deny certain artists so that others can live.
I'm not sure why these tactics wouldn't translate over to the subscription-based world.
UPDATE
Bonus: This is the 500th Post on "The Importance Of..." Go, me!
Yesterday, I noted some troublesome reports about the Rhapsody music streaming service (No Guarantees with Content Subscriptions). According to Joe Gratz, music was appearing and then disappearing from Rhaspsody (The Danger of Subscription Music Services). Well, Gratz sent a link to his post to Rhapsody PR person Matt Graves who quickly responded (kudos on taking a blogging customer seriously) and confirmed that, indeed, such shenanigans happen for a variety of reasons but are rare (Real Responds). Gratz's original post had raised the possibility of the music labels toying with consumers by making music available only for limited periods of time, a concern I share. Graves responded:
Sure, labels (indie or major) could tease consumers by offering music online for only a short period of time, then take it offline and make it available only at retail, but that seems like a lot of work to sell a few CDs. And taking it offline permanently could make people more angry than if you never offered it online in the first place.I'm not so sure the concept is far-fetched. You know how every year or so, McDonald's runs big promotions for the McRib sandwich (available only for a limited time)? Or how Disney makes some movies available once a generation or so? Does this tick off consumers? Yes, but more importantly it drives up demand. McRibs sell like
Therefore, I don't find it particularly hard to imagine record labels playing all sorts of games with subscription services to boost sales and/or listens. I've a number of CDs (all thankfully ripped now) in my collection that I don't listen to particularly often, but really enjoy. I know I can always call them up when I want to, but don't simply because my choices are so wide. However, if you told me they were going back into the vaults (for resampling in some new format or some such nonsense), so I'd better listen now, I would. I think such tactics would work in a number of different scenarios. For example, limited edition live concerts. You don't pull all of artist's works, but some rarer works might be available for a limited time. When an artist isn't creating new material, this might be a way to maintain interest in the older material. At the very least you get some press releases out there.
So when a subscription service tells me (using a paraphrase from the NY Times) that a subscription will provide "access to favorites no matter what storage format comes out" excuse me if I'm skeptical.
Me? I like the subscription with mucho included downloads option. All the benefits of a subscription, all the benefits of ownership.
Recently, on Copyfight, there have been a couple of posts about "tethered" music services (A Tale of Two Tethers and RCN's New Tethered Music Service). In A Tale of Two Tethers, Jason Schultz linked to a NY Times article in which a proponent of subscription streaming music services (as opposed to downloads) touts the supposed superiority of access such services provide (From a High-Tech System, Low-Fi Music):
Richard Wolpert, chief strategy officer of RealNetworks Inc., the parent of RealRhapsody, takes aim at Apple when he muses that customers will be unhappy when they decide that they want to own music encoded at 320, not at 128. Far better, he argued, to abandon the notion of "owning" songs, because the concept condemns users to endless purchases. "How many times do you want to own your music?" he asked. "I own my music as eight-tracks, I own my music as albums, I own my music as cassettes, I own my music as CD's."Unfortunately, access to favorites isn't guaranteed. According to Joe Gratz, some of the music on Rhapsody has a tendency to disappear, sometimes in only a few weeks (The Danger of Subscription Music Services):With a subscription service like RealRhapsody, one saves personal tastes in the form of playlists that replace actual music collections, providing access to favorites no matter what storage format comes out "in the next 5 or 10 or 20 years," Mr. Wolpert said. [link omitted]
Several times over the past few months, new releases have appeared on Rhapsody on their release date, only to be pulled from the catalog a few weeks or months later.Imagine the licensing battles of the future. When renegotiating licenses, artists and publishers could pull their music out of the subscription system, thus leaving subscribers with no access to the music on the playlists they so carefully created. Gratz anticipates even shadier behaviour:
There is the possibility here for some very nasty crack-dealer-like licensing behavior on the part of the record companies: they license to subscription services for a while, then pull the album so people who are hooked go out and buy the CDs. Record companies could even repeat this gambit over and over, hooking new subscription-service users then forcing CD purchases each time.Wolpert's right. A subscription service means that your music can be upgraded over time (though shouldn't we be at a point where upgrades are unnecessary?). Of course, that doesn't help much if the music is taken off the subscription service. That's a risk that Wolpert failed to mention. Maybe ownership isn't passe quite yet (Rental Nation).
Cyberlaw Prof Larry Lessig takes a look at some of the reasoning that seems to have informed those behind the Inducing Infringments of Copyright Act (IICA, née INDUCE Act) (continuing congressional confusion on copyrights (ie, not just (c), or (cc), or even (ccc) but (cccc))). He points to a recent paper (Sony Revisited [PDF]) from Lee Hollaar, Computer Science Professor with the Univ. of Utah. From the introduction of the paper:
Today, tens of millions of people participate in peer-to-peer systems like Kazaa, with most users “sharing” not their own material, but more likely music whose copyrights are owned by others. Whether such activities hurt the copyright owners by being a substitute for legitimate sales and license fees, or help by sparking interest in a new work, is not the question here. The Constitution and the copyright statutes give a copyright owner the exclusive right to the protected work during the limited duration of the copyright, and therefore the right to determine the business model for its distribution to the public. [footnotes omitted]Lessig briefly addresses Hollaar's arguments, but really pushes the point that Sony enshrines the separation of powers, that,
This is not an opinion about copyright law alone. It is an opinion about separation of powers — about which branch is best able to do the necessary balancing that copyright law demands, “within the limits of the constitutional grant.” Sony says, in effect, when a technology is not simply a technology for violating the law, then it is left to Congress to decide whether and how that technology is to be regulated. Congress, not the courts. [link in original]My perspective on Hollaar's paper when I've had a chance to go through it.
Oh, wait, that didn't happen.
The New York Times carries a Reuters wirestory on a 7% increase in music album sales for the first half of 2004 over 2003 (Album Sales in U.S. Reported Ahead of 2003). The short story doesn't attribute the change to any particular factor, but you can be sure that industry execs will take all the credit and complain that sales would be even higher absent P2P. What is the true story? No one really knows, the evidence is not decisive.
C|Net News has a mildly interesting piece on the convergence of cellphone and digital music player (Cell phones heading into iPod territory). For many people, it probably makes a lot of sense to merge the two devices. However, cellphone companies are somewhat reluctant to dive in because they haven't figured out how to make money off something in which hardware sales subsidize service (and not the other way around). But ya gotta love this quote:
Moreover, they're [cellphone companies] already making considerable money by selling ring tones--essentially 15-second to 30-second snippets of songs that substitute for a traditional ring--for as much as $2.50 apiece. That could look less appealing next to a 99-cent version of the entire song.Xingtones anyone?
C|Net News reports that the RIAA has filed another 482 direct infringement lawsuits against John Doe filesharers (RIAA takes hundreds more 'John Does' to court).
In response, Joe Gratz does some back of the envelope calculations to determine the monetary value of the risk filesharers bear with regard to the lawsuits (The Cost of RIAA Risk). Joe Gratz concludes that the risk is about fifty-four cents per month. One could quibble with the figure, but without more data it is impossible to know how accurate it is. For example, the RIAA is of necessity targeting uploaders not downloaders. I would imagine that the uploaders are a smaller proportion of the filesharers than the downloaders. The RIAA is also targeting those sharing an unknown but relatively large number of files; they aren't going after someone sharing twelve songs, but probably one hundred or more. So, those actually targeted by the RIAA are probably a relatively small number of the number of filesharers and their risk is consequently greater.
However, let's assume that the value is this low (heck, it might be lower). Does this mean that Gratz's conclusion is correct?:
My point, though, is that the RIAA is just making everybody hate them, needlessly. If people actually ran the numbers, they’d see that while there are many rational reasons not to use P2P networks to infringe copyrights, fear of these RIAA suits shouldn’t be a significant one.
Now, of course, it would be great if the RIAA offered a universal blanket license for a reasonable price like $5/month. However, the world isn't a perfect place and it is going to take some time to reach that nirvana. Until that happens, however, does it really make sense for the RIAA not to launch any lawsuits?
Imagine if the RIAA had declared that they wouldn't file any lawsuits against uploaders until a blanket licensing deal had been worked out among a significant number of parties. This might have several undesireable outcomes.
Enforcing Copynorms
For example, it might further solidify the copynorm among some that filesharing without payment is legitimate. Back before the original Napster, when the RIAA went after the first people to post MP3s on their webpages, there wasn't much of an outcry. Few stood up said "How dare the RIAA sue these people!" Frankly, I don't see much of a difference between sharing files via P2P and posting them to your homepage. If one should be legal, so should the other.
Still, the RIAA hesitated for a couple of years in suing uploaders. I believe this was a mistake on their part. Had they immediately gone after direct infringers instead of solely pursuing a contributory infringement strategy (which backfired in the Grokster case), I don't think the outcry over the enforcement would have raised nearly as many hackles. I also think it would have been much more effective as the number of filesharers would have been much smaller and the rate of growth would have been slowed.
I imagine that the lawsuits have had some effect on knowledge and copynorms. Many more people know that uploading unauthorized copyrighted works is illegal. Additionally, many people are no longer uploaders, why take any risk when what you really want is simply to download for free? This can have a disproportionate effect on the filesharing networks as the number of uploaders decrease and become ever more attractive targets for lawsuits. The fact that many people are no longer uploading is probably evidence of some success on the norm front as well. As many filesharing programs default to sharing, people have to take a positive step to avoid potential liability and many are.
You Can't Sue Everyone
That was one of the rallying cries of the early Napster era. To the extent that the RIAA didn't file lawsuits by the ream, it was true. If it continues to be true, then enforcement of any blanket licensing scheme is going to be extremely problematical. The RIAA had to prove that it can go after enough infringers to be at least plausibly effective. If the RIAA went after just a handful, the campaign might not be taken seriously at all (and rightly so). Of course, now that the RIAA has started the campaign, they can hardly back down, or they will look like they cannot afford to enforce.
Although the current risk is small, it is not entirely insignifcant when taken into account with the other costs of illicit filesharing. I would say that this looks like a plausible level of enforcement, assuming you can use other means to move people to a licit service.
You Still Need a Carrot
In the end Gratz's big point is that the RIAA is just "just making everybody hate them, needlessly." For the reasons stated above, I disagree. I think this is a necessary element in solving the filesharing issue. However, the usefulness of the lawsuit strategy is predicated on the RIAA also providing a reasonably priced, non-DRM'd, voluntary subscription service (or another reasonable solution). Attempting to stop filesharing solely through a lawsuit strategy is doomed to failure and Gratz would be right. If on the other hand, the RIAA is honestly moving towards a responsible solution, than they are smart to continue the lawsuits.
Well, technically, the treaty is called the WIPO Treaty for the Protection of Broadcasting Organizations, cuz heaven knows they're all faced with extinction. The draft treaty will be discussed June 7-9 by WIPO's Standing Committee on Copyright and Related Rights (SCCR), which will then "decide whether to recommend to the WIPO General Assembly in 2004 that a Diplomatic Conference be convened." A diplomatic conference can adopt a treaty. The treaty will not go into effect, however, until a certain number of countries have acceded to it. The draft of the treaty is available here: Consolidated Text for a Treaty on the Protection of Broadcasting Organizations [PDF].
This treaty is really a nasty bit of work. It will give broadcasters, not copyright holders but broadcasters, a number of exclusive rights in their broadcasts, such as fixation, reproduction and distribution, whether or not the broadcast is of a public domain work. Moreover, the treaty would require signatories to prevent circumvention of those rights.
Oh yeah, the treaty would also apply to "cablecasters" and the United States (all alone on this one, apparently) wants the treaty extended to cover "webcasters." What exactly constitutes a webcaster isn't entirely clear, perhaps only streaming, perhaps HTTP. While the US is not a signatory to the previous treaty on broadcast, our efforts on negotiating this one indicate we are likely to sign on.
Read on for a look at this monstrosity...
Background
EFF's Consensus at Lawyerpoint, an anti-broadcast flag blog, reported on the origins of this treaty back in August 2002 (Europeans push WIPO Broadcast Treaty to create "fixation rights"). Last October James Love, director of the Consumer Project on Technology, wrote (with comments and suggestions from EFF's Cory Doctorow) an excellent analysis of an earlier draft of the treaty ([DMCA-Activists] On the Proposed WIPO XCasting Treaty). CPTech maintains a website tracking the treaty (The proposed WIPO Treaty for the Protection of the Rights of Broadcasting, Cablecasting and Webcasting Organizations).
Sui Generis Copyright-like Protection for Broadcasts
The treaty would give (among others) the following rights to broadcasters, cablecasters and, if the US has its way, webcasters: fixation, reproduction and distribution. Of course, there is no limit on what is covered by the treaty, as long as it is "broadcast" and consists of "sounds or of images or of images and sounds" (although why they couldn't just say "images and/or sounds" is beyond me). In other words, broadcast of public domain works like Dawn of the Dead would be covered along with works for which the broadcaster owns the copyright. Heck, you could start a radio station that exclusively broadcast Creative Commons-licensed freely distributable works and keep anyone from recording your broadcast.
Why bother with copyright? Simply "broadcast," or in the US's version, "webcast" all your material. Instead of connecting to an FTP server to get video or music you would connect to an ongoing "webcast" of the media, so that way, the broadcaster can keep control of the media even if it isn't copyrightable.
Article 8
Right of Fixation
Broadcasting organizations shall enjoy the exclusive right of authorizing the fixation of their broadcasts.
No more VCR, DVD-R or TiVo for you. So much for time shifting. Goodbye Sony v. Universal, it was nice knowing you.
This is the mandated broadcast flag. If the broadcaster doesn't want you recording it, you don't have a right to.
Article 9
Right of Reproduction
Alternative N
Broadcasting organizations shall enjoy the exclusive right of authorizing the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts.
Alternative O
(1) Broadcasting organizations shall have the right to prohibit the reproduction of fixations of their broadcasts.
(2) Broadcasting organizations shall enjoy the exclusive right of authorizing the reproduction of their broadcasts from fixations made pursuant to Article 14 when such reproduction would not be permitted by that Article or otherwise made without their authorization.
More broadcast flag goodness. Even if you are allowed to record it, the broadcaster can control how you can reproduce it. That way, if you want to shift the latest Sopranos from the TiVo in the living room to your laptop to watch on the plane, the broadcaster can stop you.
The US and, for some reason, Egypt support alternative "O", which protects broadcasters from reproductions of unauthorized fixations.
Article 10
Right of Distribution
Alternative P
(1) Broadcasting organizations shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of fixations of their broadcasts, through sale or other transfer of ownership.
(2) Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the fixation of the broadcast with the authorization of the broadcasting organization.
Alternative Q
Broadcasting organizations shall have the right to prohibit the distribution to the public and importation of reproductions of unauthorized fixations of their broadcasts.
In other words, no filesharing of broadcasts. Don't you dare make the fixation you made of ABC's broadcast of the President's State of the Union address (SotU) available on KaZaA.
Article 11
Right of Transmission following Fixation
Broadcasting organizations shall have the exclusive right of authorizing the transmission of their broadcasts following fixation of such broadcasts.
Don't webcast what you've saved previously. Not only can't you put your fixation of the SotU on KaZaA, you won't be able to webcast it either.
Now, governments can make the same exceptions to these broadcasting rights as they "provide for, in their national legislation, in connection with the protection of copyright in literary and artistic works." But they don't have to. Nor is it clear to me, under recent copyright decisions, that the Constitution requires the US to do so.
Term of Protection and Formalities
Article 15
Term of Protection
The term of protection to be granted to broadcasting organizations under this Treaty shall last, at least, until the end of a period of 50 years computed from the end of the year in which thebroadcasting took place.
Great. Copyright isn't long enough we have to provide protection for the broadcasts for fifty years in addition? So, forty years from now, when your grandchildren want to use a clip from television today to illustrate a report on the popular culture of their grandparent's era, they'll have to clear permissions with the television station that broadcast the clip (assuming we still have television stations then).
The previous treaty had a length of twenty years and, as we all know, broadcasters in countries that signed the treaty have suffered greatly from this length.
Article 18
Formalities
The enjoyment and exercise of the rights provided for in this Treaty shall not be subject to any formality.
No pesky registration requirements or anything. That way it is very difficult for people to know who owns the rights to what decades from now.
DMCA for Broadcast Flag
Article 16
Obligations concerning Technological Measures
(1) Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by broadcasting organizations in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their broadcasts, that are not authorized or are prohibited by the broadcasting organizations concerned or permitted by law.
Alternative V
(2) In particular, effective legal remedies shall be provided against those who:
(i) decrypt an encrypted program-carrying signal;
of the broadcasting organization that emitted it;(ii) receive and distribute or communicate to the public an encrypted program-carrying signal that has been decrypted without the express authorization
(iii) participate in the manufacture, importation, sale or any other act that makes available a device or system capable of decrypting or helping to decrypt an encrypted program-carrying signal.
Alternative W
(2) [No such provision]
This is the equivalent of the passage in the WIPO Performances and Phonograms Treaty (WPPT) that the US used as one of the justifications for the passage of the DMCA. So, not only does this treaty require a broadcast flag, it will be illegal to circumvent it.
Article 17
Obligations concerning Rights Management Information
(1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty:
(i) to remove or alter any electronic rights management information without authority;
(ii) to distribute or import for distribution fixations of broadcasts, to retransmit or communicate to the public broadcasts, or to transmit or make available to the public fixed broadcasts, without authority, knowing that electronic rights management information has been without authority removed from or altered in the broadcast or the signal prior to broadcast.
(2) As used in this Article, “rights management information” means information which identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast, and any numbers or codes that represent such information, when any of these items of information is attached to or associated with 1) the broadcast or the signal prior to broadcast, 2) the retransmission, 3) transmission following fixation of the broadcast, 4) the making available of a fixed broadcast, or 5) a copy of a fixed broadcast being distributed to the public.
And don't try to make your copy of the broadcast of the State of the Union look like a legal, unbroadcast version.
Article 21
Provisions on Enforcement of Rights
(1) Contracting Parties undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of this Treaty.
(2) Contracting Parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of rights or violation of any prohibition covered by this Treaty, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.
Many people argued that the WPPT didn't require the US to pass the DMCA, as Congress concluded, because the US already adequately protected the rights of copyright owners. As the US doesn't protect any "broadcast" rights (other than some "theft of service" stuff), this provision would pretty much require a US Broadcast Flag DMCA law to be passed.
Conclusion
This is bad, bad, bad. What more can I really say?
Co-Copyfighter and EFF attorney Wendy Seltzer has triumphantly written up the recent decision in the Canadian Recording Industry Association's (CRIA's) demand for filesharers names (Time to Move to Canada). Read the decision: BMG v. Jane Doe [PDF]. Furdlog has a roundup of news articles on the decision (Just In From Canada). Slashdot commentary here: Music Industry Loses In Canadian Downloading Case.
The CRIA really got hit hard in the decision. The judge in the decision slapped them down on nearly every level:
On the basis of the foregoing, it is obvious that in my mind the plaintiffs have not:- made out a prima facie case (their affidavit evidence is deficient, they have not made a causal link between P2P pseudonyms and IP addresses and they have not made out a prima facie case of infringement);
- established that the ISPs are the only practical source for the identity of the P2P pseudonyms; and
- established that the public interest for disclosure outweighs the privacy concerns in light of the age of the data.
A lot of the prima facie case problems (such as the affidavit evidence and linking P2P pseudonyms with IP addresses) was due to poor lawyering on the CRIA's behalf and can be remedied when a similar case is submitted. The second question about ISPs being the only practical source will also be rather easily established (unless the filesharing networks want to set themselves up for secondary liability in the US). The third question will mean the CRIA will have to move faster from the gathering evidence stage to launching lawsuits. How much faster is not quite clear.
The more significant aspects of the decision, the ones that Seltzer points out and celebrates are:
I'm afraid that I cannot share her enthusiasm.
The first point, about downloading being legal for personal use is a creature of Canadian law.
The second point is actually rather dangerous if interpreted broadly, that is, if you believe in the continued value of copyright law on the internet. The judge held that:
No evidence was presented that the alleged infringers either distributed or authorized the reproduction of sound recordings. They merely placed personal copies into their shared directories which were accessible by other computer user via a P2P service.
As far as authorization is concerned, the case of CCH Canada Ltd v. Law Society of Canada, 2004 SCC 13, established that setting up the facilities that allow copying does not amount to authorizing infringement.
The basic conceit here is that making a copyrighted work "available" through a shared directory is not the same thing as authorizing reproduction of the work and is not infringement. Furthermore, even if people actually copy files from the directory, the person making them available still isn't guilty of authorization of reproduction. The judge continues:
I cannot see a real difference between a library that places a photocopy machine in a room full of copyrighted material and a computer user that places a personal copy on a shared directory linked to a P2P service. In either case the preconditions to copying and infringement are set up but the element of authorization is missing.
My first thought is that this is bad news for photocopy machines in Canadian libraries. If this ruling holds up and the Canadian legislature has to remedy the situation, I wonder whether photocopy machines in libraries will be exempted from the law as judges can't seem to distinguish them from P2P filesharing.
I'm not sure it matters given the library analogy, but I'm not really sure about specific facts regarding the software; does guilt here turn on the defaults of the P2P filesharing software? If the default is not to share, but the user enables sharing, is that "authorization"? If the default is to share, would that not constitute "authorization"?
The judge next addresses the question of distribution itself:
The mere fact of placing a copy on a shared directory in a computer where that copy can be accessed via a P2P service does not amount to distribution. Before it constitutes distribution, there must be a positive act by the owner of the shared directory, such as sending out the copies or advertising that they are available for copying. No such evidence was presented by the plaintiffs in this case. They merely presented evidence that the alleged infringers made copies available on their shared drives.
Hmmmm ... well, then how did the plaintiffs find out about the files? Did they just randomly start polling IP addresses?
If this paragraph is read narrowly, then there is the possibility that using software like KaZaA will meet the requisite "advertising that [the infringing files] are available for copying." For example, such software frequently lets "super peers" know what is on the users drive and even answering search queries is a form of advertising. If this paragraph is read broadly, on the other hand, then there is no real digital copyright on the internet in Canada. Under a broad reading, people using P2P software cannot be found guilty of copyright infringement for making any commercially available digital file available via P2P software as long as they don't do anything else.
The logic of the judge's decision does not apply solely to music, but to any copyrighted file. Software, film, video, everything that can be digitized is fair game. Is this the right solution? Now, the CRIA obviously did a terrible job putting together their case. But if the court basically ruled that they can't put together any case for a large number of filesharers, copyright is in serious trouble. Does Seltzer prefer a broad or narrow reading of this decision?
According to the New York Times (reg. req.), Nielsen Media (the television ratings company) is under fire from minority groups because planned changes in its rating measurements will allegedly undercount minority viewers (Planned Nielsen Changes Criticized):
THE N.A.A.C.P. and leading members of Congress from both parties, including Senator Hillary Rodham Clinton, have added their voices to the growing number complaining that the proposed changes in how Nielsen gathers local television ratings will drastically undercount the number of black and Hispanic viewers.
The reasons for this alleged undercount are unknown.
This not the first time that the Nielsen's have been criticized for undercounting minority audiences, in fact it has been a consistent theme for a number of years. Of course, Nielsen is a private corporation, and no one can force Nielsen to use particular means and methods of measurement. Prominent politicians like Clinton and the head of the NAACP can complain and try to influence Nielsen, but there is not much they can do legally. Nielsen isn't perfect, but it is a business and must respond to business pressures. The broadcasters and cable channels that purchase Nielsen ratings are also businesses that must be responsive to the public.
So what happens in a government-mandated alternative compensation system that includes ratings? Often, these systems claim that they will reward artists based on some sort of Nielsen-like rating system. Will Nielsen still be independent then? Will Clinton, rather than simply complain, pass laws telling Nielsen how it will count the audience for particular works? If a large percentage of artist compensation is coming through a government-mandated system, will that system be able to remain independent of politics?
Would you want the FCC in charge of determing size of audience?
via boingboing
Andrew Grumet reports that broadcatching actually picked up some interesting and unexpected content (March 26, 2004):
When I logged in this morning there was a BitTorrent window open and a copy of Free Culture on my hard drive. Simon put this Creatively Licensed work on LegalTorrents, and the Radio plugin did the rest. What a pleasant surprise! [links in original]
Speaking of LegalTorrents, Grumet also notes that they now have "a music feed, a books feed and a movies feed" (March 28, 2004).
The Blogdigger Development Blog has some interesting updates on their integration of broadcatching. One obvious problem is that promiscuous use of broadcatching can lead to your system trying to download more media than makes sense (Radio and BitTorrent):
So for the second moring in a row, I logged on to my computer and noticed things were a tad sluggish. The culprit: the collection of around 25 BitTorrent sessions that had been initiated from subscribing to the Blogdigger torrents.xml feed! I killed most of the sessions, as they were for things that I was not interested in, but I did keep a few running (like the latest episode of Scrubs!).
Blogdigger is also putting together feeds for different media, including their existing feed for torrents (Blogdigger Media!). As Chris Pirillo says, "All your torrents are belong to us."
Adam Curry notes that it would be great to get the audio version of Larry Lessig's new book, Free Culture, downloaded a chapter every morning (free culture audio boook). More interestingly, Curry points out how, since each chapter of the book is being read by different bloggers, RSS makes a lot of sense for aggregating the spacially diffuse files. He also points to his early writing on the topic of RSS+BitTorrent, RSS: A Cool Web Service, near the bottom of the post.
Digiwar considers some new uses for RSS, including broadcatching (RSS, more then headlines). One cool use of RSS he mentions is a concert notification system, which lets you know when a concert is announced and reminds 30 and 2 days before the concert. Why not add a broadcatching that sends you a copy of the concert the next day or so?
KnowProSE, doesn't have much to say, but his brief comment is an interesting take on the appeal of BitTorrent (All you wanted to know about BitTorrent and were afraid to ask).
As an old school IRCer, I stayed away from Napster, Kazaa and all those other things. But Bittorrent with RSS has a lot of potential, especially for expanding on existing uses.
I've discussed the PIRATE Act here (PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry), which Copyfight has followed up here (Larry Flynt, Poster-Child for the PIRATE Act). However, having thought about the proposed law a little more, I came to an interesting realization: you can get wiretaps for federal copyright infringement investigations.
Under 18 USC 2516(3), you can get a wiretap for any "electronic communication" (but not for wire or oral communications) as long as "the interception may provide or has provided evidence of any Federal felony." Copyright infringement under 17 USC 506 is a felony. Under the proposed PIRATE Act, the government has options with regard to people who violation 17 USC 506 (Criminal copyright infringement). The government can criminally prosecute them or bring a civil suit. Either way, the government can use a wiretap to gather evidence for their case.
Under a regular civil suit for copyright infringement by means of file sharing, the copyright holder can only observe that the infringing files are available for download. They can't really tell how many people have downloaded them, if any. Furthermore, copyright holders have no way of going after people who are only downloading files and not uploading them. Wiretaps to the rescue. The RIAA may not be permitted to wiretap file sharers, but the government certainly can. The RIAA must be salivating at the prospect.
Conservative Senator Orrin Hatch (R - UT) has frequently cast aspersions on sexually offensive broadcast programming. For example, see his recent comments regarding the current brouhaha over indecency on television (Hatch Decries Declining Morals on Broadcast TV). Yet, the logic of his statements on behalf of the recently introduced "Protecting Intellectual Rights Against Theft and Expropriation Act" (PIRATE Act) would have the Department of Justice lawyers working on behalf of pornographers. In Hatch's world, the FCC would work to crackdown on indecency while the DOJ fought on behalf of pornographer's rights.
The PIRATE Act
Xeni Jardin of WIRED was, I believe, the first traditional journalist to write about the bill (Congress Moves to Criminalize P2P).
The essentials of the bill are actually quite straight forward. Instead of being required to bring only criminal copyright infringement prosecutions, the Act would permit the DOJ to bring civil copyright infringement lawsuits against copyright scofflaws. The bill does not change the standards for triggering DOJ concern under 18 USC 506 (basically, willful infringement for commercial advantage or a lot of willful infringement for no gain). The bill also establishes a pilot/training program and requires an annual report from the DOJ. Up to $2,000,000 may be allocated for the program.
There is one other important aspect of the bill. Once a copyright infringer has been busted by the DOJ and forced to pay a fine, the copyright owner can still sue the infringer for more damages. With a successful federal prosecution in hand, such a lawsuit would be a slam-dunk. Until the statute of limitations runs out (generally three years), a government-busted infringer is basically at the mercy of the copyright owner, who could likely bankrupt them on a whim. The only limitation on this is that any restitution payed due to the DOJ lawsuit would reduce or "offset" any subsequent civil action penalty. With a minimum penalty of $750 per infringement (and up to $150,000), this still leaves a major sword hanging over the head of DOJ-busted infringers.
Analysis and Commentary
Joe Gratz is absolutely right when he says this proposed act is simply rent-seeking (RIAA’s Next Step: A $2 Million Gift From Taxpayers):
[The Act] shifts the costs of civil copyright enforcement from copyright holders to taxpayers. The direct cost is $2 million dollars – a quick, easy $2 million wealth transfer to rent-seekers from society at large. Perhaps the larger cost is the further erosion of the public’s belief in the separation between government and big business.
Furdlog points out another cost of the Act; let's call it an "opportunity cost" (OK, That’s It):
Maybe these legislators think that the FBI should be spending their time on KaZaA instead of helping to explain the threat of terrorism to Condi Rice and the rest of this administration?
This theme is continued in the Washington Post (reg. req.) ('Pirate' Bill Aims Law at Song Swappers). Fred von Lohmann of EFF is quoted as saying, "The drumbeat here is that the entertainment industry would really appreciate it if the DOJ would do their dirty work for them." This is also a cost that can't be calculated in dollar bills. So far, the RIAA hasn't actually gone to trial. You can be sure when they do, the publicity won't be pretty. How much better for some AG to take some of the public heat, while the RIAA gets the deterrence benefit.
Speaking of the RIAA, co-Copyfighter Donna Wentworth points out the hypocrisy of the copyright industry's support for the bill (Funding the War on Filesharing):
Okay--so the recording industry rejects voluntary collective licensing, implying that it's a compulsory system and therefore tantamount to the dreaded government solution to a private sector problem. Yet it supports the PIRATE Act--a government solution that would have taxpayers paying for lawsuits, not music.
Speaking of hypocrisy, well, not exactly, we come to the part of this posting in which I explain how Sen. Hatch becomes the pornographer's best friend.
Hatch and Pornography
Sen. Hatch and Sen. Leahy (D - VT) are co-sponsors of the bill in the Senate and both had press releases trumpting how well they've done what Hollywood requested of them. See Leahy's press release here: Leahy-Hatch Bill Takes Aim At Copyright Infringement. However, I found Sen. Hatch's press release more entertaining: Hatch Continues to Fight Against Copyright Infringement.
Unlike Leahy's press release, which focuses solely on copyright infringement, Hatch's discussion reveals a strange obsession with pornography on P2P networks:
Unscrupulous corporations could distribute to children and students a “piracy machine” designed to tempt them to engage in copyright piracy or pornography distribution.
Unfortunately, piracy and pornography could then become the cornerstones of a “business model.” At first, children and students would be tempted to infringe copyrights or redistribute pornography. Their illicit activities then generate huge advertising revenues for the architects of piracy. Those children and students then become “human shields” against enforcement efforts that would disrupt the flow of those revenues. Later, large user-bases and the threat of more piracy would become levers to force American artists to enter licensing agreements in which they pay the architects of piracy to distribute and protect their works on the Internet.
....
Public health and safety are also directly threatened by business models that tempt children toward piracy and pornography and then use them as “human shields” against law enforcement.
My first thought was, "I'm surprised Hatch didn't pull a Gen. Jack D. Ripper imitation and start calling for protecting the precious purity of our children's bodily fluids." My second thought was, "does Hatch know what he is saying?"
Perhaps Hatch doesn't realize this, but most pornography is copyrighted and, as Hatch notes, is frequently distributed via filesharing networks. Since Hatch wants to stop copyright infringement and also discourage the redistribution of pornography, there is only one logical conclusion. This new law is meant to encourage the DOJ to go after those infringing pornography copyrights through P2P filesharing. By suing those engaged in pornography piracy, the DOJ could accomplish two of Hatch's goals at once: reducing infringement and pornography redistribution.
Titan Media, a producer of gay pornography, is well-known for its aggressive copyright infringement actions (Titan Media Pumped-Up over digital distribution). I'm sure that they would be more than happy to cooperate and coordinate with DOJ lawyers to stop piracy of their products. How proud Hatch will be when the first DOJ-acquired restitution checks are turned over to purveyors of smut.
Hatch and Titan Media in agreement at last.
Everyday it seems that there is something cool and neat in the RSS/BitTorrent/Broadcatching realm. Today is no exception. For example, Brian Clark, proprietor of the excellent Outside the System, suggests two business models for broadcatching.
Additionally, the music hacktivists behind Downhill Battle have launched Banned Music, a website dedicated to distributing unauthorized sampled music mixes such as the infamous Grey Album (About BannedMusic). Without discussing the merits of their concept (see here, here, here, and here for my take on related issues), they have come up with an interesting technology. Since many people haven't yet installed a BitTorrent client, Banned Music wraps their initiating .torrent files in a Nullsoft scriptable installer so that people automatically install the necessary software when they attempt to download the music (A New BitTorrent Downloader). The potential for this approach with regard to broadcatching is apparent.
Read on for all the latest broadcatching news ...
Counter-Intuitive Broadcatching Business Model
Brian Clark's Outside the System has a fascinating write-up on an alternative business model enabled by broadcatching (The Valley Cost Model: Broadcatching and Net Television). Writing from experience (cybercasting the Sundance Film Festival among other things), Clark notes that the costs of delivery for broadcatch are inverse to the demand, unlike traditional cybercast where delivery costs increase with demand. As Clark says, "The new mantra is: the higher the demand, the lower the cost.":
the idea that develops from this is one that is familiar to the Web: new content is free, and archival content costs. In this case, the relatively good gatekeeping of torrent files at the server level -- whether as authentication (seperate from a transaction) or a transaction (using something like BitPass) or even depublishing (no longer available) -- provides that potential....
As a model, that might mean you can afford to offer your "newest episode" for free for a limited period of time -- that period of time when your bandwidth costs are the lowest because peer swarming is the most efficient. At that point, the "other revenues" you can bring in might be sufficient since you spared the majority of the bandwidth cost. This even provides an added incentive to adopt the strange new tools needed to partipate in "torrenting with RSS feeds" (as it helps to ensure that you get your copy during the free period.)
This is just a taste, Clark goes into much more (interesting) detail. In particular, he looks at a possible ethos of such a system:
This is part of what makes the "new is free" model of the valley cost model so interesting for independents -- it reinforces the value of the most ardent fans and subscribers by giving them the content as close to free as the business model can allow, encouraging them to recruit new participants among the "first consumers" in much the way early fax machine owners pushed the adoption of faxes -- because that adoption adds value (in broadcatching's case, by lowering costs) to everyone in the network.
Read the whole thing.
Broadcatching and Public TV
Thomas Hazlett has written an article in The Hill on the coming death of analog broadcast for public television stations (Would last TV station turn out the lights?). Says Hazlett:
Broadcast stations’ volunteering to go dark sends a clear signal. Over-the-air transmissions are becoming useless, not worth the cost of firing up the transmitter.
Now Hazlett is primarily interested in freeing up the spectrum to use for other purposes, which is about as far as I go in agreeing with Hazlett here. Nevertheless, my second thought was why not broadcatching for public television stations (other than the fact that public TV is frequently more mercenary than commercial broadcasters)? Honestly, if the bandwidth costs can be shared or shouldered by the viewers, why shouldn't public TV make their content available to the public via broadcatching? Frankly, innovation-minded sponsors should require such distribution in return for their cash. Hello, Intel, IBM, and others.
Broadcatching and Porn - The Initial Killer App
Brian Clark suggested via email the killer app for early commercial adapters of the broadcatching paradigm: pornography. This is actually quite a good idea - seriously. Not that I would know about this personally or anything, but many pornography websites provide subscribers with periodically updated content in the form of bandwidth-intensive video. Heck, bandwidth costs are probably a major expense for pornographers and broadcatching would likely significantly increase their profit margins.
If there is one thing that can be said about pornographers it is that they are much quicker to exploit technological advances. Thus, pornography makes an excellent testbed for refining the technology as well as potential business models.
Roundup
Ross Karchner provides a couple of Venn Diagrams for RSS/BitTorrent/TiVo (Disruptive++). In addition to the nifty diagrams he says, "There has never been a more efficient path for video from the Internet to your TV."
LiveJournal member blueminder finds the concept of broadcatching addictive (rss addiction rekindling).
fling93 sees broadcatching as a boon to creators, especially the creator of Buffy: The Vampire Slayer and Angel (Television's Replacement):
[Broadcatching] means the Joss Whedons of the world will no longer have to pitch their shows to “Pointy-Haired Bosses” at networks (who air them out of order and then cancel them prematurely for not finding an audience). Instead, creative types can pitch directly to audiences.
And see his recent comment on this blog.
Research analysts are paying attention now. Jupiter Research's Michael Gartenberg writes that "This is the right idea but now it needs to be implemented for mere mortals to use" (RSS for TiVo). Yep.
Hublog reminds us of a concept similar to broadcatching with RSS + BitTorrent called "konspire" (Remembering konspire). As Hublog puts it:
The only real difference is that whereas clients poll the server to find out if an RSS feed has been updated, file servers send out pings to clients over the konspire network when new files are ready.
There's probably a good case for each of these systems, at particular levels of scale and channel popularity.
He's right. Too bad konspire appears to be defunct.
Feedster is adding enclosure support to their RSS feeds (Feedster Adds Support for RSS Enclosures !). Give it a try: Feedster feed with enclosure support.
Ubercyberprof Larry Lessig pointed to some "mash" multimedia from the Republicans (RNC Introduces John Kerry: International Man of Mystery). The Republicans are going to email 400,000 copies of the video to "Team Leaders" across the country. Broadcatching would make so much more sense ... and make the Republicans look technologically cool to boot.
On Saturday, Andrew Grumet announced the release of RssReader 0.4d (RssReader 0.4d). In Andrew's words, "RssReader is TiVo-resident software that displays the contents of an RSS feed on your television." Of course, who the heck really wants to read RSS feeds on television? Sounds like one of those dotcom-era WebTV-like monstrosities. Instead, Andrew notes that "More interestingly, RssReader can schedule recordings from syndication feeds containing RSSTV extensions. This means you can subscribe your TiVo to a community-evolved ToDo list, such as the feed generated by Program My TiVo!" Absolutely, and something I think has amazing potential (RSS for TV, Music).
However, I also think that there is not only a desire for at least some RssReader functionality on television, but important reasons to make it happen. Indeed, perhaps a grant from Homeland Security to Grumet would be in order.
Imagine an RSS feed that would scroll at the bottom of your television display while you watched any other channel, a news ticker if you will. It would be just like the scrolling feeds on the news and financial networks, but would be overlayed on top of whatever you are currently watching. Most importantly, the content would come from an RSS feed.
Emergency Broadcatching System
When I lived on the East Coast, the television was a major source for breaking emergency local news such as school closings, traffic conditions and weather alerts. Turn on the local morning news after a snow storm and there would be a scroll of the business and school closings and delays. Major accidents on I-95 would initiate traffic tickers and you would also see listings of various counties under blizzard alert or where snow emergencies had been declared.
There are a couple of problems with this system. First, you have to be watching a live, local station. What about those gentle souls who like to start their morning with a relaxing gardening show on Home and Garden TV while they sip a nice cup of herbal tea? Thanks to TiVo, what about those early-risers who want to watch David Letterman's top ten from the night before in the morning just before heading to the home office?
Second, these scrolls are not necessarily the most efficient way of getting information to the audience. The alphabetical listings of businesses and schools seem to get longer and longer every year. Currently, you have to wait like 10 minutes for the darn thing to scroll through the entire listing in New Haven (and Yale never closes anyway). And you know something? I couldn't have cared less about the storm alerts in Windham County; I was in New Haven County, darn it.
Seriously, wouldn't it make a lot more sense to have an RSS feed for such emergency announcements? I want my employer or my school district to let me know when I should come in late or not come at all, and I want to know whether or not I'm watching a live, local news show. As TiVo (and broadcatching) become more popular it becomes less and less likely that people will be watching live broadcasts or the major networks. If you are the state or county government and need to let everyone know that there is a snow emergency or get other information out to citizens, who have dozens or hundreds of television channels to choose from, you can't simply hope that your citizens are watching the local ABC, CBS, NBC, PBS or FOX affiliate. Heck, if for some reason the television broadcast is out (terrorists attack transmitters, for example), you might still be able to get information to people through their televisions.
Cable companies could probably do something like this at government request, but not everyone wants to be constantly bombarded with this information on all channels. Okay, I know my school is closed today and now I just want to watch Spongebob Squarepants in peace. I'm not sure what capability satellite companies would have to do this on non-local channels. In any case, people may want information from sources other than the government and I doubt cable or satellite companies will run tickers for them.
People should be able to subscribe to particular feeds for their specific needs and you should be able to turn feeds on and off. There should also probably be a flag that would could be set to permit interruptions (automatically making the feed visible on the screen) and allow you to turn the feed off after you've got the information (only to reappear if there is an update, for example).
Other RSS Applications
Of course, once this system is in place, there would likely be a number of businesses that could be created to take advantage of such scrolls. Obvious applications include stock tickers and sports scores. Why not keep up with the stocks you follow while watching The Simpsons instead of CNNfn? Watch your favorite basketball game and keep closer tabs on the other teams you are interested in, rather than all the other scores and other sports the station's tickers usually have. News junkies can have news tickers running even while watching other entertainment.
Personalization would be great. Who wouldn't want to wake up in the morning with a personalized ticker that would include local weather and local traffic? In Southern California, wouldn't it be great if you could subscribe to the 5 Freeway/Orange County feed, or the 605 & 10 Freeways Los Angeles County feeds? Watch a national news show, but get a local news ticker? News could be even more specific. For us Copyfight junkies, why not Michael Geist's Internet Law News as an RSS feed you could read while watching Good Morning America? Sure, there wouldn't be a lot of content that could be sent in such a format, but it would alert you to stories you should probably check out later (or sooner, as the case may be).
If your feed is good enough, you might be able to get a minimum of advertising into the feed, or draw people to your website. I think the first news companies that jump on making this happen will make quite the splash. How embarrasing would it be for NBC News to know that that those watching the Today Show are getting a CNN news and weather RSS feed scrolling at the bottom of their screen?
Making RSSTV, RSS + BitTorrent and Broadcatching Real
Of course, once such a system is built out, it would be very natural and easy to add RSSTV ability to the mix. Once you can subscribe to an RSS news ticker feed, how much more difficult would it be to subscribe to "channel" feeds that tell your TiVo to record particular programs?
After that, the next obvious step is RSS + BitTorrent broadcatching. Heck, Homeland Security might want to have such a capability built into a "Emergency Broadcatching System." For example, it might be necessary to quickly disseminate multimedia that the local TiVo stores and records whether or not the television is receiving (or television stations are broadcasting). You never know when such a capability might come in handy.
Of course, once you have broadcatching built into every TiVo, ReplayTV and whatever it is that the Dish Network uses, whole new possibilities open up...
The Dowbrigade News is quite excited by the possibilities of broadcatching (Video Aggregator 1.0).
A broadcatching discussion has been taking place on a Yahoo! BitTorrent group (RSS + BitTorrent = Broadcatching).
Jonathan Schull jumps on the broadcatching bandwagon and points to an RSS torrent feed (As Scott Raymond Foretold).
Dave Brondsema is experimenting with Grumet's work. If it works well, he promises to port it to a Linux client (spring break accomplishments).
Paolo Valdermarin sees potential for videobloggers (Are We Ready for Videoblogging).
realkosh, a self-described "aussie music fan," thinks the broadcatching concept is "excellent" (Promotional music should be free). He also has some interesting things to say comparing music to peanuts:
When was the last time you bought a peanut? Peanuts are something you just get for free. People buy peanuts to give to other people for free. I'm sure there are hundreds of people out there who buy more peanuts for other people than for themselves. Peanuts are just there when you go to your local pub. When you go to a party. Peanut night clubs where the peanut people go.
I like the analogy, but for the record will note that I do buy peanut butter.
Continue reading for many more links...
d-volution looks at the future of the internet and television with the advent of broadcatching (Weblog/RSS + Peer to Peer).
John Robb has a couple of posts on the subject. In the first he references a report he wrote in 1996 (Personal Broadcast Networks). In the second he successfully experiments with the technology and offers some suggestions (Andrew's BitTorrent Test).
Playlist Progress
Lucas Gonze reports progress on the development of a portable playlist (Radio TWF. :)). You can monitor the working group's progress here: Portable Playlist Wiki. Last week, Gonze also reported on a new Webjay feature: cannibalization, which allows users to copy another's playlists and add them into their own playlists (A New Webjay Feature: Cannibalization). This an excellent example of collaborative filtering in action. Not unexpectedly, a couple of day's later, The Tofu Hut, a playlist creator expresses mixed feelings about this cannibalization feature (Tofuhut sez). On the one hand, people who get the cannibalized list may miss some of the nuance and info that is part of Tofuhut's list. On the other hand, more people are exposed to very cool music. Tofu Hut's final position comes down nicely in favor of sharing: "Ego loses: the more the merrier is our motto."
IT Conversations
IT Conversations has a great interview with Andrew Grumet discussing the technologies he is creating, including broadcatching, of course (Andrew Grumet - March 22, 2004). IT Conversations' RSS feeds are enclosures enabled! How long before they add broadcatching capability?
Steve Kirks enjoyed Andrew's interview - noting that it was great for the morning commute (Listened to Andrew's interview). Wouldn't it be great if your car could broadcatch news stories overnight to listen to on the morning commute. That would be a killer app, I'm thinking.
Related Goodness
Scott Johnson promises "Good BitTorrent goodness coming [this] week" - could it be broadcatching related (Feedster, RSS and BitTorrent)?
Blogdigger provides a new RSS feed for newly discovered BitTorrent files. The feed is here: Blogdigger Torrents. via Lockergnome's RSS Resource
Softpile now provides new freeware and shareware RSS feeds (Softpile RSS Feeds). Select from a variety of categories, such as games, utilities, and education. also via Lockergnome's RSS Resource
I'm not really sure whether this has any application to broadcatching, but it seems interesting and something to think about. Joe Hall reports on a new RSS template which allows blog comments to be part of the feed (Full text RSS w/ comments).
The LA Times (reg. req.) reports that California state legislators are hauling water for Hollywood once again (Setting a Trap for Net Pirates). The basic idea of the bill is to extend a "true name and address" statute to cover virtually all exchanges of copyrighted audiovisual information. That is, if you send someone a copy of a recording or audiovisual work electronically without also providing your true name and address, you could be fined $2,500 and spend a year in the clink.
Read Assembly Bill 2735 (the Assembly Version): An act to amend Section 653v of, and to add Section 653aa to the Penal Code, relating to Internet piracy.
What is the point of this bill? According to a sponsor:
[State Sen.] Murray [D - Culver City] says the point isn't to take names; his idea is to give state prosecutors, who have no jurisdiction over copyright infringement, a charge they can bring against online pirates.
Hmmmm ... the concept of federal preemption of copyright law comes to mind. One might argue that many states have "true name and address" statutes, but they generally apply only to sales of physical goods. Like copyright law, this proposed law applies to any transfer (outside your home and family), not only sales. If this isn't preempted I'm not sure what would be.
And what is this? Hollywood can't afford to sue people? We citizens of California have to expend precious tax dollars and limited law enforcement resources on copyright enforcement because Hollywood is too darn cheap? With massive statutory copyright damages available as a remedy, there is no excuse for Hollywood not to prosecute copyright infringers directly. Heck, it could even be a profit center.
An Attack on Privacy and Anonymity
Read the EFF press release: California Bill Backed by Hollywood Attacks Internet Privacy. The EFF notes the pernicious effects on children's privacy: "These California anti-anonymity bills would force everyone - including children - to put their real names and addresses on all the files they trade, regardless of whether the files actually infringe copyrights."
There are many more problems with this bill as well. EFF notes that there are no exceptions for fair use. For example, if one emails a friend a copy of a political campaign commericial that includes copyrighted music, I'm a Dole Man comes to mind, you can be fined and sent to jail. Heck, posting and commenting on Janet Jackson's wardrobe malfunction could get you sent to jail.
This is certainly an attack on the anonymity protections of the First Amendment. Unlike commercial "true name and address" statutes, this bill reaches beyond a state's interest in preventing fraud to cover all types of anonymous speech, including speech that is clearly protected by the First Amendment. State Sen. Murray says, "There's one way to maintain your privacy in my bill. That is not to engage in illegal activity." But that is the problem. The bill strips anonymity even when people are engaging in constitutionally protected activities. On this basis alone, I believe it is clearly unconstitutional under the First Amendment.
An Attack on the Creative Commons
Even worse, there is no exception for permission of the copyright holder. So, if I record a song and post it under a Creative Commons license that permits redistribution but reserves commercial use rights, you can go to jail for redistributing it. I mean, really, what more can be said about such an overbroad bill?
We need to have a "true names" bill for politicians. By all rights, State Sen. Kevin Murray should start calling himself State Sen. Hollywood Sycophant.
UPDATE
You can find your California State representatives here: Find Your California State Legislative Representatives. Let them know what you think of these bills.
Thanks to all the recent publicity, Simon Carless reports on his ffwd blog that LegalTorrents, a site for legitimate music torrent files that is experimenting with broadcatching, has given away an additional 300gb of music (broadcatching in the dark fatman ides?). 300gb! I guess broadcatching works.
Outside the System has an interesting analysis of the possibility of micropayments combined with broadcatching (BitTorrent + BitPass: Ethos & Practicalities). Most interestingly, the author goes into some detail regarding the ethos of the concept, what one might also call the social norms.
Now, I'm not a big fan of micropayments, but I think there might well be a market for certain Big Media Objects (BMOs) if the payment isn't too small. For example, the author imagines films being made available through this method for $2-3. I could certainly see this sort of payment making sense for a series, such as the awesome Red vs. Blue, where you buy an entire season for, say, $5-20. Of course, a subscription model for all-you-can eat content *cough*music*cough* might be a very good model as well.
The best part of the piece though is the analysis of the ethos of BitTorrent and payments:
Does this mean that there is a common ground between independents and the BitTorrent community that allows for the introduction of transactions into the equation? There very might well be, and there seems to be little technical barrier in experimenting and seeing firsthand. It might even be a common ground that traditional media companies and the artists they distribute don't/can't/won't share, making this an emerging system ripe for independent adoption over corporate adoption. There are also tantalizing questions I still have about how this microtransaction model could interact with the tracker also running on that webserver -- the potential to allow fans to favor those "in the club" versus "outside the club" at the peering level, which could reinforce the idea that the independent media creator and their Internet fans are all in this together.
This is something that I have been thinking a great deal about and I think that there is something quite interesting here. I believe that a well-designed market using broadcatching would encourage cooperation between creators and consumers, turning distribution into a collaborative effort. Sure, corporations could play this game, but independents could be on an almost equal footing, both would have consumers as their partners. I'm still thinking about the possibilities here, but I think they may be one of the most significant aspects of broadcatching. Broadcatching could be much more than what the Hollywood Liberation Army calls "the holy grail of a profitable business model for independent movie-makers on the web" (BitTorrent, BitPass & Outside the System).
Unlimited Freedom has some interesting comments about the whole broadcatching concept (BitTorrent and Broadcatching). Most of his post concerns what he sees as various drawbacks of the BitTorrent protocol. While he makes some good points, overall I don't think they really undermine the broadcatching paradigm.
BT differs from other P2P systems in the algorithm that it uses to distribute data. That's what makes it work so well for large files. But there's no reason P2P networks couldn't be enhanced to use that algorithm. If they did so, they would be SUPERIOR to BT for almost every purpose.
No longer would you have to find a .torrent file host to download data. No longer would someone have to do something special and act as a seeder - they could just put the data file into their P2P shared directory and it would be available to the world. No longer would you have to beg people to keep their BT clients (instances of which are specific to the file being downloaded) running after the download finishes, scolding them about being "leechers" if they don't upload at least as much as they downloaded.
Actually, some P2P programs already implement versions of swarm download protocols. However, that doesn't mean they are necessarily superior to BitTorrent. In particular, the advantage of broadcatching is that you have RSS feeds letting people know when fresh content is available. Consequently, you are more likely to have people hitting the .torrent file shortly thereafter, which makes the whole swarm download thing work better. With other forms of P2P, even if you get an RSS notification of fresh content, you'll have to wait for that content to diffuse through the P2P network. Even for very popular files this might take hours or days. With broadcatching, because of the centralization of the seeding server, content diffuses as quickly as the RSS feed.
There is also a question of search horizon for large media objects with normal P2P. The most popular files would be available in the local P2P network, but less popular files would be more difficult to find. Centralized seeding servers mean that the search horizon is virtually infinite. Moreover, you might not get much swarm download benefit for less popular files with normal P2P, but a centralized seeding service would aggregate even widely dispersed interest in less popular files.
The question of leechers is an issue, but since broadcatching would be mostly automated (update RSS, check for new files, initiate BitTorrent for new files), chances are the defaults could be set to let the BitTorrent application run fairly regularly in the background.
Undoubtedly, there are improvements that can be made to the protocols, especially with regard to usability for the average consumer. Those advances will come with time.
Slashdot has actually covered the BitTorrent & RSS concept before (RSS & BT Together?), but the latest is probably the most interesting as the concept begins to sink in (RSS And BitTorrent, Together At Last). Below are a couple of interesting comments:
People keep trying to make BitTorrent something it isn't. And really, we should be fighting its corporate adoption in any form, as it's simply an attempt to shift server bandwidth costs to the client. ISPs eat that right now, but we're going to metered access if this keeps up.
Which is effectively getting us to pay for website access/services, but instead of giving the money to the content creators we'll be giving it to ISPs instead and paying in bandwidth besides. So this is a bad idea.
The way I figure it, with this bittorrent-RSS combination and a slight modification of torrent watching sites like animesuki [animesuki.com] we will essentially have a fansubbed anime online tivo at our disposal. Actually, you could have probably done that even without RSS, though it does simplify matters. The only limitations are our bandwidth and hard drives. Which actually are pretty limiting these days, especially with p2p being frequently capped.
A couple of weeks ago, brother Clay on Many 2 Many posted some of his concerns about a proposed social network filesharing concept (Robert Kaye on Social Networks for File Sharing).
The model in question is from Robert Kaye, creator of MusicBrainz, who posted on OpenP2P a text version of a talk he led at the O'Reilly Emerging Technology Conference on: Next-Generation File Sharing with Social Networks. What is the need for such models?
Social networks designed for file sharing should focus on three goals: share your files with others in your network, discover new files from other members, and protect the network from outside attackers. To achieve these goals, the social network needs to be founded on a well-defined social model.
Ok, although, I'm not really sure that there is much value in this sort of network except as an attempt to defeat attacks from outsiders such as the RIAA. To a certain extent that might be useful for those attempting to hide from legal liability, but I'm not even sure that is particularly useful. Of course, you could easily create a closed filesharing network of friends today and the RIAA would never be the wiser. There is a problem, though:
To apply this concept, the network starts with a group of trusted people forming a tribe of people. Starting a tribe as a friendnet, where each connection is backed up by a meatspace connection, is an excellent starting point. However, sharing files inside of a small tribe is only interesting for a short while because it presents a limited search horizon. If tribes connect with other tribes to form chiefdoms, the search horizon expands with each new connection in the chiefdom. Finally, connect chiefdoms to other chiefdoms to form states, and the search horizon may start to look similar to the search horizons in open file-trading systems.
Why do you want to call it a social network though? Do these "tribes" and "chiefdoms" have anything in common other than a desire to fileshare and avoid legal liability? Is this really the sort of social network to which one would want to belong? It may sound nice to call it a "social network" but it acts more like a conspiracy. The purpose isn't to increase social connectivity but to avoid liability - not the same thing:
Tribal elders must be aware that outside attackers can use social attacks on the network. For instance, if a number of members of a movie-swapping tribe are hanging out at their local coffee shop, they should be aware that attackers may appear as smooth-talkers with lots of knowledge about movies and claims of having a large collection of relevant movies. If one tribal member falls for the attack and invites the attacker into the network, the entire network is at risk. We'll go into the risks from attacks in more detail later, but tribal elders need to understand these risks and educate their tribe to act accordingly.
I'm sorry, but this doesn't sound like a "tribe" so much as a criminal enterprise. Do you really have to worry about social attacks on Friendster or Orkut? Why does the word "omerta" come to mind?
Don't get me wrong, private social networks are great ways to fileshare. I think it is great to recommend works to a friend and even to send them a copy. Such sharing can solidify and help friendships grow, as well as increase appreciation for the works themselves. However, I really don't see the benefit (except access) of "sharing" with strangers several links removed from me.
Think about blogs as a discovery system for news stories. I read my friends blogs and I read the blogs of strangers whose taste I've grown to trust. Through them I discover news stories of interest to me, some expected, some unexpected. I don't randomly access and read the blogs of total strangers ... it is generally a waste of time as a discovery tool. Why should music filesharing be different? Again, having strangers in the loop increases access to works, but there is nothing particularly social about it and it does not increase music discovery.
A truly social filesharing system would encourage people to create both public and private connections: private connections where one shared with existing friends and public connections in which individuals broadcast their tastes to the world (hopefully making new friends in the process). Kaye's vision, in its attempt to avoid legal liability, is a strangely crippled version of social networks, as there can be no truly public connections. It is more akin to a conspiracy-minded cell structure than a free and open system.
The Progress and Freedom Foundation has recently published a study of secondary liability for P2P filesharing systems. Read the press release: P2P File-Sharing: Balancing Creativity & Innovation. Read the study: Liability of P2P File-Sharing Systems For
Copyright Infringement By Their Users [PDF].
Unsurprisingly, the study concludes that secondary liability should be attached to most P2P systems. Much of the paper is correct on it summation of current law. However, I have a serious problem with the paper's claim that it would be relatively easy to distinguish between bad technology and good technology. I'm not sure that many of the technologies that are common today would have survived the scrutiny the paper proposes.
For example, one difference between the Napster and Sony decisions is that "the balances between infringing and noninfringing uses were dramatically different. The VCR is predominantly used for noninfringing activity, while the Napster business was built almost entirely around servicing users’ infringing." But something very interesting is going on here with verb tenses. The VCR is predominently used for noninfringing activity. Indeed. But the case wasn't nearly so clear when the VCR was first introduced. Is the lesson then that copyright industries should sue before a particular technology matures?
Later in the paper this point is reiterated: "Similarly, VCRs overwhelmingly serve noninfringing uses; the result in Sony has been vindicated." Easy to see in hindsight, not so easy to see when Valenti was decrying the VCR as "the Boston Strangler." The use of the term "vindicated" sort of concedes the point that the issue wasn't clear when the decision was entered. Of course, if Sony had gone the other way, Hollywood would be proclaiming the overwhelmingly noninfringing present uses of the VCR were a result of the initial finding of contributory infringement.
Similarly, the paper argues that, "In contrast, the CD burner was clearly designed and introduced for legitimate purposes, although it can also be used to make infringing copies of CDs." Was this issue so clear when CD-ROM burners were introduced? Heck, at the beginning of the CD-R era the 650MB you could store on a CD-R was more than the average computer's entire hard drive. Tape backup was widely available ... and cheaper. And even if the ability to burn CD-ROMS was clearly a legitimate purpose at the time, really, why did the CD burners have to have the capability to burn the Red Book audio format? Couldn't the RIAA have sued to prevent the sale of CD burners or associated software that could burn Red Book audio? Seems to me that there was a pretty good argument that when consumer CD burners were first sold, the Red Book audio capability alone had overwhelmingly infringing uses. Imagine also if the internet had taken off a few years earlier, before a large installed base of CD burners existed. Wouldn't the overwhelming use of CD burners have been piracy (at least, isn't that the argument Hollywood would have made)? From a policy perspective, it also wouldn't have been very difficult for CD burner manufacturers to make sure their systems couldn't burn audio CDs.
I sort of wonder if the File Transfer Protocol, still an enormous source of piracy, could have survived this sort of scrutiny. After all, couldn't the protocol have included various filtering mechanisms and authentication?
What of BitTorrent? Isn't it overwhelmingly used for piracy right now? Of course, the benefits of BitTorrent for anyone wishing to distribute legitimate large media objects is obvious, to me. Eventually, I imagine BitTorrent (or similar swarm systems) will become significant ways for legitimate distribution of all sorts. But, as the paper refers to other P2P systems, "at present, those noninfringing uses are quite small relative to the use of these systems for widespread Internet piracy." Moreover, would my clear view of the value of BitTorrent necessarily be obvious to a judge? Who would defend Bram Cohen if Hollywood had sued when BitTorrent was first introduced?
I remain unconvinced that we can permit extensive secondary liability because it will be relatively easy to target the "bad" technologies without unduly burdening innovation.
via Furdlog
I've assumed that the RIAA was monitoring BitTorrent downloader/uploaders. Now I've come across this report (not sure how credible it is) of such monitoring: Bit Torrent downloading:
So here I am, downloading through various torrent apps, various music torrents, all probably illegal. My first day, so I've learned the ropes, a little, and already blocked Sony North America, The Australian Broadcasting Corporation, RIAA and some others, I didn't recognise late last night. They were scanning my torrents, looking down my ports, or trying to.
Of course, I'm still sort of wondering why we haven't seen many DMCA notice-and-takedowns for BitTorrent seeding sites yet.
Lucas Gonze, who has added client-side remixing to his RSS+SMIL format (Analysis of RSS+Time as a playlist format) discusses the strengths and weaknesses of such client-side remixing here: Client-side remixing is sloppy. His post is in response to a couple of posts I've done on the idea of remixing "recipes": A History Palette for Music and The Grey Album - No Copying Necessary. Gonze argues, rightfully, that RSS+Time and similar such formats are not well-suited to client-side remixes:
Geeks around these parts have done many experiments with client-side remixing in SMIL, and what we found was that it works reasonably well as long as you don't need precise synchronization. If you do need precise synchronization, you'll just make yourself unhappy.
What that means for Danger Mouse and other dance-type remixers is that they will not be doable on the client side. That kind of thing requires a really tight set of operations. You have to clip out segments of a few seconds at most, then line them up with a lot of other clips. Marking a beat is a picky process with no room for sloppiness, which is exactly what HTML is not.
Mike Linksvayer agrees and provides more analysis (Client-side remixing isn’t so loopy).
Their both right. However, my vision of client-side remixing is not of the RSS+Time type, which "is to precise syncrhonization as HTML is to precise layout. If you don’t need precision, enjoy." Actually, I imagine a rather robust client that can achieve the level of precision that the remixer used to create the remixing "recipe." As I noted, my comparison is to Photoshop's History Palette:
Imagine if someone edits a photo [with Photoshop] and sends me the history palette but not the original photo (for copyright reasons). If I already have the original photo the editor worked with, I could recreate the new version from the history palette.
In the case of music, I imagine the client having something like a copy of Apple's GarageBand software. If you save the "history palette" for GarageBand and send me both the history and the original sound files used, I should be able to recreate the exact same finished product you have.
Such a thing is not yet available, but I don't see why it couldn't be. See, Dangermouse, the Jay-Z Construction Set and the Videogame Content Creation Model.
Techdirt discusses how the mainstream press doesn't really seem to understand BitTorrent and is missing out on how much potential the system has (Distributed File Sharing Systems Learning From BitTorrent).
Broadband Reports also sees broadcatching as a potential disruptive technology (RSS & Bit Torrent: Content distribution gets interesting):
While illegal ideas abound, such as the instant download of every South Park episode the second it hits the net, the idea lends itself to a great number of ideas that could turn traditional distribution models on their heads, giving smaller operations a new opportunity for content distribution.
Teldar Paper, a Swedish blog in English, imagines BitTorrent and RSS as part of a nationwide, perhaps global, always-on grid (Living in always online land).
Prophecy Boy can't wait to see who the RIAA will sue first over a BitTorrent + RSS merger (RSS+BT = fun4all).
UPDATE
Random Rants has several posts following RSS + BitTorrent. See, P2P meets BitTorrent, Ye olde RSS & BitTorrent debate and RSS, BitTorrent & Tivo.
Andrew Grumet, who has been the leader in developing BitTorrent + RSS technology, has announced the arrival of the "an initial version of a RSS+BitTorrent integration tool for Radio Userland's news aggregator" (Announcement: RSS+BitTorrent Integrator for Radio Userland). Visit the project website here: Getting started with BitTorrent + RSS in Radio [BETA]. Grumet promises to write more about the idea in the coming days and asks for bug reports, comments and etc., here.
Damn the luck! I'm not a Radio Userland user - just might have to become one.
In related news, David Shipp writes about Chris Pirillo's IT Conversations interview (Chris Pirillo: March 1, 2004) in which Chris discusses the concept of BitTorrent + RSS (Future Web). Shipp summarizes thus:
Chris goes on to talk about the fusion of RSS and BitTorrent. This is where things get interesting and controversial. BitTorrent is an excellent technology for P2P downloads, and one of it’s emergent properties is that newly available files become widely available through BitTorrent far quicker than on traditional P2P networks. The disadvantage is that users have to trawl the web for BitTorrent pointer files that direct them to the downloads. He suggests that RSS can provide the delivery mechanism for these BitTorrent links, so for example, users can be presented with links to all the new episodes of their favourite TV series. Chris steps away from the legalities of the issue, and rightly so, but highlights the concept that RSS + BitTorrent is essentially a TiVo (or Sky+ for my fellow British).
Lucas Gonze is working on what I consider another element of broadcatching, RSS + Playlist Format, which he is calling RSS + Time (Analysis of RSS+Time as a playlist format). Exactly. Wouldn't it be great if one could receive a playlist from a trusted source in RSS format? The playlist would automatically play the songs already available on your system and launch a BitTorrent download of those not available.
Bonus: the RSS+Time format includes some primitive client-side remixing capability. I like to call this a remixing "recipe" (A History Palette for Music and The Grey Album - No Copying Necessary).
C|Net News reports on the public unveiling of Red Swoosh, a new P2P entrant which has adopted BitTorrent-like technology for distribution of large files for commercial companies (Legal P2P networks gaining ground):
In part, that's why the company's CEO is now reaching out to the broad community of people using BitTorrent, an underground file-trading application using similar technology that has exploded in popularity among people distributing or downloading video and software programs.
Red Swoosh CEO Travis Kalanick said he wants to tap that energy. He's offering free use of Red Swoosh's content distribution services to noncommercial filmmakers, game developers or other publishers.
"I don't want to fight BitTorrent," Kalanick said. "I want to have a relationship with that community. That's not just about cutting a deal; you have give to that community."
Interesting. I'll have to give a try (I hope they don't use spyware). Wonder when they will adopt broadcatching?
For more information on Broadcatching, see also:
BitTorrent + RSS = The New Broadcast
Broadcatching - Not Broadcasting
Broadcatching - The Early Days
RSS + BitTorrent Announcement Soon?
BitTorrent, RSS and Broadcatching, Catching On
I think that EFF's proposed filesharing plan, A Better Way Forward: Voluntary Collective Licensing of Music File Sharing, is definitely a step forward in the discussion, but as I've discussed in this space before, I still have a few concerns about its success. See, Thoughts on the EFF P2P Solution White Paper and Victory for EFF Creates Problems for EFF's Filesharing Solution. Two recent articles raise further concerns.
Broadband Price Sensitivity
C|Net News has published a commentary from Forrester Research regarding broadband pricing (In broadband game, price beats speed). The study shows a high degree of price sensitivity for broadband subscribers, who favor slower DSL connections at $10-$20 less per month than higher speed cable broadband:
This may mean additional difficulty in convincing ISPs to adopt blanket licenses for their customers that would add ~$5/month to their bills. Many of the mainstream broadband subscribers aren't going to be very interested in filesharing and will likely prefer to opt for an ISP that is cheaper and doesn't automatically incorporate the proposed music license. Free riders, who want to download without uploading, will also tend to choose the cheaper ISPs. Of course, ISPs that do adopt the blanket licenses get a double bandwidth whammy, since much of the downloading will be coming from them and not from the non-music-licensed ISPs.
Audible Magic for Artist Compensation Measurements
EFF's Ren Bucholz on his Trubble blog ("your cultural bloodbank"), writes about the potential for Audible Magic's music fingerprinting technology (which is being touted by the RIAA as a P2P filter) to be used to "interoperate with relatively open networks to determine fair compensation for artists" (Acoustic Fingerprinting and the Future of P2P). In other words, the technology would be great for Nielsen-like measurement of file transfers on P2P networks, which could then be used to help determine artist compensation. Indeed. However, this creates a Catch-22 for any P2P software company that implements this.
As I discussed earlier (Audible Magic's Sleight of Hand) with Derek Slater (Spin on Audible Magic), Audible Magic-style filtering (or compensation measurement) requires some element of centralization in order for the system to work. The P2P client has to send information (such as the music's "fingerprint") to the central Audible Magic servers for checking/recording.
Unfortunately, centralization of this sort leads to liability for P2P companies under the Napster doctrine, see EFF's What Peer-to-Peer Developers Need to Know about Copyright Law. Having set up Audible Magic to record file transfers for artist compensation, it is likely that P2P companies would be further burdened to use Audible Magic-like technology to filter video files, photos, software and other file types frequently shared via P2P.
This is an inherent problem for EFF's solution. Any P2P software company that incorporates centralized elements to facilitate musician compensation may consequently find themselves vulnerable to lawsuits from photographers, programmers and the MPAA.
Riffing off the Grey Album controversy, Pop Matters columnist Devon Powers writes a lyrical column that implicitly makes the argument for much shorter copyright terms without delving into legalities and economic arguments (Life Goes On). She may even have come up with a new rallying cry to go along with "Free the Mouse":
Something's gotta be done about the Beatles.
Her argument is that too-extensive copyright kills and mummifies culture, our culture, turning cultural touchstones into mere nostalgia:
[T]here's also a deafening cultural silence around the Beatles. Despite being one of the most influential recording acts in history, the Beatles do not allow their music to be sampled... And the Beatles aren't the only act; the collusion of exorbinant fees and copyright censure has made many of the musicians with the loudest cultural resonance into those whose music is only heard today as an echo from the past.
....But to me, it is beyond question that it is certainly time to free ourselves of the cultural nostalgia and legal stagnation that have allowed their music to fossilize. Music journalists must -- and important writing in Rolling Stone, New York Times, and other prominent publications already has -- applaud Danger Mouse's astounding artistic accomplishment, and let their critical praise become part of the discussion about what's at stake as copyright goes awry. And for all of us who hold music dear, we owe it to ourselves to not only let our musical past footnote our musical present, but also allow that past to live and breathe, change and reform, disappear and reappear in unexpected ways.
Indeed. Reading this column I can't help but think, "why not return to the original copyright term of 28 years?" That is approximately a single generation, which would mean that every new generation would be permitted to work with and reimagine the past, introducing older works to a newer audience. As Paul wrote and Devon reiterates: "La, la, la, la, life goes on."
via Sivacracy
PS See also, Powers' review of The King of France, a band I had the pleasure of hearing for the first time in New Haven (The Band That Will Be King).
Bad pun, I know. So sue me.
Today I've come across a couple of posts relating to the revolutionary idea of Broadcatching, that is, using RSS and BitTorrent as a new distribution channel.
A new blog, Outside the System, authored by an indie media producer, discusses in detail how broadcatching could be an alternate distribution channel for movies (BitTorrent + RSS = Broadcatching):
These margins and the edges of cost and value are a hamper on the real blossoming of video distribution on the Web, and can only be aggregated so far out of the way. P2P swarming technology is the only current viable route to break that stalemate by spreading at least part of the costs away from your own bandwidth pipe, but under a system like BitTorrent that's only really useful if there are a lot of people with fully download copies to swarm from (so you have a classic tipping point model of efficiency.) Promotion preceeds adoption preceeds efficiency.
The brilliance of an RSS approach, though, is that it builds in at least two important features that BitTorrent alone doesn't address. First, it provides a method of propogation through editorial filters -- a successful editor picking new BitTorrent works could help create an instant rush to the tipping point, in the process decreasing the cost of bandwidth on each copy. Second, it turns BitTorrent into a subscription system, one where your system automatically collects new content of a large size overnight (for example.)
Read the post for a concrete example of how expensive traditional internet distribution is and how broadcatching can alleviate this problem.
The film used as an example, because the author of the post executive produced it, is Nothing So Strange , which documents the aftermath of the assassination of Microsoft's chairman Bill Gates on December 2, 1999. Bonus cool factor: Bill Gates Assassination Film Goes "Open Source," Releases "Evidence" DVD:
"Nothing So Strange" will be released under a license that allows all of the "source" footage of the movie to be used without restriction, in personal or commercial projects, but keeps the actual film as created by the filmmaker under copyright. "You have free access to all the parts of the movie," said Flemming. "But you can't just copy our version of it--you have to make your own original work with the various parts."
Waxy.org pointed me to a collection of links to blogs that post MP3 files (mp3 blogs/rotation etc.). For example:
For more information on Broadcatching, see also:
BitTorrent + RSS = The New Broadcast
Broadcatching - Not Broadcasting
Broadcatching - The Early Days
RSS + BitTorrent Announcement Soon?
The Washington Post (reg. req.) has published a Reuters wirestory on the use of local caching (this is new?) by Napster for the delivery of their streams and downloads (Napster, IBM Unveil New Music Delivery System):
The most popular tracks in the Napster system are stored locally, enabling customers like The University of Rochester and Penn State University, to reduce their computing infrastructure's vulnerability to overuse.
Hmmmm ... but how effective is this overall? After all, Napster supports a streaming model, where the same song can be streamed over and over again to the same listener. That's an efficient use of bandwidth, not.
And why does IBM have to be involved? Why not structure the downloads through something like BitTorrent where the student's computers carry most of the load?
via Furdlog
UPDATE
More at C|Net News (Napster, IBM aim to save cache).
It costs $499 to buy a new 40G iPod.
It costs $10,730 to fill it with songs purchased online at 99 cents each.
via DocBug
Anonymous blogger Cypherpunk argues that:
The thing is that this factoid is not as meaningful as it sounds. The iPod just holds music, and there's no significance in how its price compares to the price of the music you buy. I'm looking at my CD shelf unit, which probably cost about $40, and is holding maybe 200-250 CD's, probably about $4000 worth. Is there any cosmic significance in the fact that I could buy a shelf for only $40 that would cost 100 times that to fill with music? I don't think so. And the same is true for the iPod.
Here's the thing, though. Generally, people won't buy a shelf that can hold 1,000 albums unless they already own or expect to own 1,000 albums. Instead people by a shelf for 40, 100, or 250 albums, what they own or what they expect to own. Having so much storage changes people's expectations. If you have a lot of bookshelves you are going to fill them with something (might not be books). When you buy a 40G iPod, you are going to expect to use a substantial amount of that storage for music.
I also believe that the nature of MP3 players also increase expectations. When I could only listen to a CD in my car I knew that, physically, there was a limited number of CDs that I could bring or listen to. Even when I listened, I could only listen to a single CD at a time (and I am pretty lazy about switching them - I generally only did it at the start of a trip). Now, my expectation is that I will listen to an extensive playlist, not more than a hundred songs or so in reality, but my expectation is that the playlist is essentially unlimited. "Why shouldn't I have access to all music at my fingertips" my expectations tell me.
Apple is selling lots of 40G iPods to people who don't have 500, 800 or 1,000 albums. Apple and its MP3 player competitors are deliberately raising people's expectations about how much music they should own, and those expectations will continue to increase.
What this factoid points out is that at current ala carte prices these expectations are entirely unrealistic. Something's got to give. I don't think that it will be digital storage in which advances continue to outpace Moore's Law. I don't think it will be people's expectations. Thus, it is going to have to be the ala carte pricing point. However, I think the only realistic ala carte pricing point is going to be in the micropayments realm, which is unlikely to work. Thus, a subscription-based model will be the only likely, voluntary solution.
DJ Dangermouse's release of the controversial Grey Album has brought the question of reusing and remixing content to the forefront. Now, another group has taken the next logical step and released the Jay-Z Construction Set:
The Jay-Z Construction Set is a toolkit with all of the necessary software and raw material to create a new remix of Jay-Z's Black Album. It includes nine different variations on the Black Album, over 1200 clip art images, and a couple hundred meg of classic samples and breaks. The Jay-Z Construction Set is available on-line through filesharing networks and protocols such as BitTorrent.
This collection of material is certainly a violation of copyright, yet it points the way to a much richer vision for culture. I would hope that, in the near future, artists and publishers will see the value of releasing not only polished works, but the bits and parts used to create a work, including those parts that were rejected.
This is good not only for fanboy obsessives, but could serve to train people's musical ears, helping them hear the difference between different mixes of music. It would obviously be a boon to unexperienced musicians who could learn much from the choices other musicians and producers make. DJs would certainly have more opportunity to creatively add to the originals with this sort of access. And, likely, such efforts would help identify new talent.
Combine this with a system that permits "recipe" mixes as I've written about before (A History Palette for Music and The Grey Album - No Copying Necessary) and there is no danger of the artists and producers losing money. Indeed, such a model has already been quite successful in another media - videogames.
Many videogames permit players to create new content for the game engine, such as levels, maps and mods. This new content is freely distributable (at least for noncommercial purposes) and frequently incorporates content created by the original game designer along with new user-created content. This has been incredibly successful for videogame companies. The more content there is, the more popular the game becomes. The ability to create and add content creates feverish and committed communities of fans for a game. Imagine if musicians had such communities working for them.
The videogame model works for the game companies for a couple of reasons, but could also work for music companies:
1) You need to purchase the game engine for the content to be useful. In my recipe model, the mixing software that recreates the mix from the recipe would serve this role. However, it wouldn't be a significant revenue stream for the artist.
2) Often, the levels, maps and mods created by fans include content originally created by the game creator and shipped as part of the game engine. The shared levels and maps generally don't include copies of this content, since it is assumed that the downloaders already have the content and it saves on file size. In essence, many of these shared levels are what I would call "recipes" that remix the existing content in the game. Of course, there are full mods with entirely new content, but those are relatively rare (though they can be extremely popular and creative). Here is where the music recipe model can compensate the artist. In order to create the remixed version of the music, a downloader of the recipe file is going to have to have access to the original works, which, presumably, would be paid for in some manner through a legal download system.
Of course, the Jay-Z Construction Set points to an advantage for musicians that game companies don't share. Generally, game companies don't really have the luxury of shipping alternate takes on a level or unfinalized content for the game. However, when a musician releases a wide variety of takes and alternates, which were created organically, they create a much richer ore that remixers can mine. The more material you release, the more things people can do with it, which means the more people will want it. Heck, musicians might eventually ship only the construction set along with their favored recipes.
In a related note, Furdlog pointed out a brief Billboard interview with DJ Dangermouse (Danger Mouse Speaks Out On 'Grey Album')
WIRED is reporting that a Pennsylvania Federal judge has ordered the RIAA lawsuit charging 203 Comcast subscribers with copyright infringement be broken up into 203 separate lawsuits (One File Swapper, One Lawsuit). Read EFF's press release, which goes into a little more detail and provides updates on other similarly situated cases in other jurisdictions (Case Update: Pennsylvania Court Orders Record Industry to File 203 Separate Lawsuits).
This is certainly a victory for the rights of those accused of copyright infringement, providing a high degree of protection to those who may have been falsely accused. It also greatly complicates the ability of copyright owners to prosecute wide spread infringement and places a greater burden on our court system. A reasonable tradeoff, but it also has other effects as well. For example, it also makes it almost impossible to enforce EFF's voluntary collective music licensing scheme on an individual basis (A Better Way Forward: Voluntary Collective Licensing of Music File Sharing).
As I discussed in my initial comments on EFF's white paper, the greatest problem with the proposal is that the enforcement mechanism is weak (Thoughts on the EFF P2P Solution White Paper). In short, why would the majority of filesharers pay $5/month when they can get everything free from the minority of people who do pay? This latest victory, however, makes EFF's position virtually impossible to enforce on an individual basis. What this means is that, unless an ISP or college or similar organization buys a blanket license for its customers, there will be no way to tell who is an authorized filesharer without initiating an individualized lawsuit.
Here's an example: Filesharer A belongs to an ISP that does not force a blanket EFF-style voluntary license on its customers. Therefore, Filesharer A (a pretty good guy) buys an individual license from whatever organization provides them and begins filesharing via the ISP. However, using the same ISP is Filesharer B, who thinks copyright is for the birds and does not buy a license. Since the ISP uses dynamic IP addressing, how in the world will the licensing organization know (since Filesharer A and B can use whatever software they want) which is licensed and which is not? The licensing organization could ask the ISP, but the ISP will tell them that they won't violate their customer's privacy. Under the Pennsylvania decision, the licensing organization would have to launch two lawsuits to determine the identity of the illicit filesharer. Of course, one of the lawsuits would be bogus and quickly dropped by the licensing organization, but what a waste of time and effort. Multiply this situation by a few thousand, at least. Does EFF's enforcement mechanism in their white paper make any sense?
MIT's Technology Review (reg. req.) reports on a new e-book reader that uses digital ink from E Ink (Dazzling Display):
E-book readers—handhelds that display the contents of book files downloaded from the Internet—just got a whole lot more readable. Philips Electronics and Cambridge, MA-based E Ink have developed a prototype electronic display that looks like paper and ink, not a dim, fuzzy screen. The device uses E Ink’s tiny fluid-filled balls containing oppositely charged black and white particles, which are layered in a thin film on a sheet of plastic or glass. Connecting this film to electronics allows the reader to display text and graphics by controlling the voltage across each ball, determining whether it appears black or white. The result: higher contrast than newspapers and better resolution than laptop screens. The 15-centimeter-diagonal display is about half the weight and thickness of comparable liquid-crystal readers. It has been in the works for a few years, but this is the first version that is ready for commercial production. Look for the new readers to hit shelves later this year.
E Ink has been one of those promising technologies that has been just around the corner for the past decade or so. Its display quality is superior to LCDs, it is lighter, can be applied to a variety of surfaces, its power requirements are lower and it can retain an image even with no power supplied. As Teleread says, E Ink is "tantalizingly close to paper."
I'll wait until I play with one myself, but this does seem to be a major step forward. If E Ink acheives its potential it would likely lead to a major change in how humans relate to text. Not to mention all the interesting e-book filesharing discussions that will inevitably follow.
via engadget
On Dave Winer's test site there is this notice (Dear Bay Area friends...):
PS: Murphy-willing Andrew Grumet will have something exciting to announce that connects RSS with another nominee, in the same category: BitTorrent. We're very excited about combining syndication with BMO's. It would be cool to make the announcement on the day of the award ceremony [WIRED Rave Awards], March 15.
PPS: BMO stands for Big Media Object.
Andrew Grumet is blogging about the practical steps towards making BitTorrent and RSS work together and some of the issues involved (BitTorrent + RSS, step 1). One of the interesting problems of development is getting the client software to behave properly with regard to this new concept:
BT has a nice command line interface, btw. We need to feed it appropriate --responsefile and --saveas arguments. An open question, at least on Windows, is dealing with client software that spawns windows who don't know how to close themselves. Ideally we'd have a client that didn't spawn a window and that accepted a parameter that told it how long to continue running after completion of the download, to help other downloaders.
This is important, but I think it is a bigger problem than this. Ultimately, for the new broadcatch to be successful, the client will also have to integrate closely with the playback software (your DivX software, MP3 player, etc.). A proper user interface is going to be critical. TiVo would be a great place to start, but it is designed around the traditional broadcast paradigm and would need some serious changes to handle this concept.
BitTorrent + RSS will be revolutionary, but there is a lot of work to get from the concept to user-friendly implementation. For example, when the internet was in the early days, everyone was excited about the prospect of everyone making their own homepages. Great idea, poor implementation, as traditional webpages were too difficult to maintain and there was no RSS to make following changes easy. Today, blogs are a much better implementation of the homepage concept. Today, we aren't even at the homepage stage of BitTorrent + RSS.
In related news, I'm not the only one who thinks this is a great idea, Dave Winer had this to say:
After dinner, walking back to my car, Andrew Grumet told me that he planned to integrate BitTorrent with RSS. A namespace, a couple of Radio callbacks, and it should work. I'm in awe.
The Shifted Librarian is also enthusiastic (Waiting for SyndiCon I):
The RSS Winterfest was a good start, but it's difficult to over-emphasize the value of this type of conversation taking place in-person, face-to-face. In addition, how great would it be to include an "RSS Hackfest" (led by Andrew Grumet) to get us BitTorrent + RSS, authentication, better customization, metadata, and more?!
For more information, see also:
BitTorrent + RSS = The New Broadcast
Broadcatching - Not Broadcasting
Derek Slater went to the Digital Music Forum and didn't even get me a lousy t-shirt. However, he did write an excellent post on his impressions of the conference and how well the participants understand the issues involved (Digital Music Forum: What the Industry Players Do and Don't Get):
What was most amazing to me was hearing RealNetwork's Sean Ryan talk about how awful the standards fragmentation is while Real implements its own Helix DRM standard. The subscription services are also all waiting for the next step of increased portability, with services capable of delivering files direct to any digital media device - but what about the flexibility of consumers getting to port and manipulate files as they wish? And when is this next step going to occur?
I also was surprised that several vendors consider the size of the services' catalogs only a minor stumbling block. DiMA's Jonathan Potter was the only one to really focus on that, giving an insightful speech about the challenges of mechanical licensing and "double-dipping" for mechanical and performance licenses for online music. The services still cannot provide whatever you want whenever you want it, and Potter argued that any gap in the catalog will detract from the entire service's value, because it will frustrate consumers.
Read the whole thing.
C|Net News is carrying a Reuters wirestory claiming that large numbers of employees are still filesharing from work, despite the legal risks for their employers and themselves (Employees still swapping at work).
Now, employers could try to stop the filesharing. There are software programs that might work, but they cost money and can frequently be bypassed. Even if bypassing them isn't feasible, these sorts of programs often interfere with legitimate uses for various connectivity technologies. Of course, why would an employer necessarily want to stop something that increased employee moral and possibly productivity? I know that listening to the music I want generally increases my productivity.
It would seem to me that employers are actually pretty good candidates for a filesharing solution similar to the one proposed by EFF (Thoughts on the EFF P2P Solution White Paper). I can imagine many companies paying for filesharing licenses for their employees in bulk.
C|Net News has an article about the RIAA touting Audible Magic's P2P filtering technology in Washington, D.C. and other influential venues (File-swap 'killer' grabs attention). Audible's technology is basically an audio fingerprinting service that checks against a database of copyrighted works. Installed in P2P software, the system would ostensibly prevent the sharing of music that had been identified as copyrighted. However, even if we assume the technology works as advertised, there are a number of problems.
Nevertheless, the problem identified by Derek Slater is not necessarily one of them (Spin on Audible Magic). Derek claims that:
[Audible Magic is] not really filtering on a decentralized P2P system. That's a decentralized P2P system that requires each user to access a centralized point of control in order to be on the network. Can such a network protect users' anonymity and be robust to targeted attacks in ways necessary to enable legitimate uses and speech? Not like Freenet can. No matter how many times the RIAA says that this would simply be KaZaA without the infringing files, with no other consequences, that doesn't make it the truth.
Derek is very right to declaim the need for forcing centralization on decentralized networks. Unfortunately, most P2P networks aren't truly decentralized. KaZaA has many centralized features already. For example, the free version is ad-supported, which means that your "decentralized" KaZaA P2P software has to talk to a centralized ad server, in this case, GAIN Publishing. GAIN is more famously known as "Gator" and likes to sue people for calling GAIN "spyware" (See you later, anti-Gators?). Even the premium pay version ("KaZaA Plus") has many centralized features, such as virus protection, Peer Points Manager, and others.
Freenet is truly decentralized, but most of the commercial P2P systems are not. Indeed, I wonder how any commercial P2P network can be viable without some centralized functions. This is not to say I think it reasonable for Congress or the courts to impose such systems on commercial P2P networks, but simply that the imposition of such systems won't change their nature.
Techdirt argues that people will use encryption to escape a government mandate and foil Audible Magic (RIAA's Latest Tactic To Drive File Sharers Underground). I'm not sure that is the case, unless the files are encrypted on the hard drive. The fingerprinting will have to take place at the local uploader's system, which is then checked against the centralized database. Encrypting transfers will not thwart that initial check. Encrypted transfers will only work to thwart man-in-the-middle attempts at filtering. Techdirt is right, however, that such a move would push people farther into darknets (they would be using software that doesn't comply with the mandates). As Techdirt says, "This isn't a business strategy, it's death-by-bad-lawyers."
The biggest problem with the Audible Magic is that the level of government control required to implement it would give pause to even Hollywood friendly congress critters.
Yesterday I wrote about the incredible potential of combining RSS with BitTorrent for video (or any broadcast media for that matter) (BitTorrent + RSS = The New Broadcast).
Had I done a little more digging before I posted, however, I would have found a couple of other really great posts on the issue from a couple of months ago. Great minds come up with similar titles, as I note a post with an almost identical title from PVR Blog (BitTorrent + RSS = TiVo). However, I think the potential here outstrips even the disruption capabilities of TiVo. That led me to Scott Raymond's excellent post on the subject from last December (Broadcatching with BitTorrent). I especially liked (because it seems so apt) the use of the term "broadcatching" to describe this new method of distribution.
Such a system would be an excellent basis for a subscription-based service. Hint (Thoughts on the EFF P2P Solution White Paper) hint.
Scot Hacker has some thoughts on the Grey Album on his Birdhouse Blog (Thoughts on The Grey Album). Scot doesn't think my idea of distributing remix "recipes" to avoid copyright problems is viable:
At Corante, Ernie Miller wonders whether some kind of remix formula or recipe could be created to allow consumers to recreate the Dangermouse mix from the two original sources, thus sidestepping copyright issues. I respond that the suggestion is similar to the technique used to distribute the lame MP3 encoder, thus bypassing Fraunhofer's patent. But music is not a computer program, and I am highly doubtful that sufficient notation could be devised, or that anyone could enter in the data in sufficient detail to recreate the artwork.
I disagree. If one is using a computer to mix music (and most people are nowadays), then it wouldn't be too difficult for the editing program being used to save how the particular mix was made. This capability would be very similar to the "undo" function most editing programs come up with. Photoshop, for example, saves every move you make with program so you can "undo" any change made since your initial edits, they call it the "history palette." Now, I see no reason why it wouldn't be possible for photoshop to save this history palette as a separate file. Imagine if someone edits a photo and sends me the history palette but not the original photo (for copyright reasons). If I already have the original photo the editor worked with, I could recreate the new version from the history palette.
I don't know why the same can't be done for music, all of it performed automatically and transparently as far as the mix artist is concerned.
Of course, to be effective, you would have to have the exact same versions of the originals that the mix artist used. Hmmmm ... seems like a way that recording companies can encourage people to get legitimate copies ...
A couple of weeks ago, I posted on an innovative new RSS format for Personal Media Recorders, such as the TiVo (RSS for TV, Music). Imagine an RSS feed that would program your TiVo. Now, Andrew Grumet, the developer of this great idea, has implemented a web-based version: Program My TiVo!.
This is great. I would love to have an easy means by which my friends and family could set up something to be recorded for me. My brother and I are always telling each other to record certain programs via TiVo. This would save all the forgetting and stuff.
via PVRBlog
First thought: EFF finally agrees with me (mostly)!
Second thought: How come I don't get any credit and EFF doesn't offer me a job?
Third thought: Man, I need a smaller ego.
Seriously, I am quite glad the EFF has offered this clarification of their music filesharing policy (A Better Way Forward: Voluntary Collective Licensing of Music File Sharing). With a minor quibble or two, and one major problem, I think this is precisely the answer to our filesharing dilemmas.
The Money: Collecting It
Interestingly, though EFF has often condemned the lawsuit strategy of the RIAA, the paper recognizes the importance of legal sanction to enforce this voluntary regime. Lawsuits (or the threat of lawsuits) against consumers are necessary to provide incentive for consumers to opt-in to the system and discourage free riding:
How do we get filesharers to pay up? That's where the market comes in -- those who today are under legal threat will have ample incentive to opt for a simple $5 per month fee.
I may not agree with all the procedural aspects of the lawsuits (for example, the original interpretation of the DMCA subpoena provisions was heinous), but lawsuits against consumers who are uploading unlicensed music are perfectly valid. Of course, it would be great if the RIAA would offer the carrot as well as the stick, but that doesn't mean the stick is illegitimate.
Furthermore, the enforcement mechanism must be reasonably efficient. For example, it would not do to for the RIAA to merely charge people back subscription fees for free riding. One, the fees would be so low as to make enforcement completely unviable, especially given the need for the RIAA to actually file a lawsuit in order enforce their valid claims. Two, where is the risk? If I'm caught cheating, at most I would have to pay what I should have paid in the first place. Given the need for efficient enforcement to make the system work, the EFF should include more discussion about what would be a reasonable form for the inevitable lawsuits (or threat thereof).
For example, perhaps there would be a "first bite" strategy. First time offenders would be required to pay a multiple of back subscription fees and perhaps a small ongoing surcharge on future rights (~ $7/month instead of $5/month) to help subsidize enforcement. Repeat offenders would be subject to standard copyright penalties.
Of course, there are other reasons besides lawsuits why consumers might want to opt into a voluntary system that EFF doesn't mention. For example, would the RIAA still be permitted to spoof and use other non-illegal tactics to inhibit the function of P2P networks with a significant number of free riders? Seems to me that convenience of use would also be a major benefit to encourage people to sign up with a legitimate system.
The Money: Dividing It Up
What the EFF offers up is fine, especially the emphasis on transparency (critically necessary to avoid some antitrust issues). I've often complained about how such census/monitoring systems will be gameable and etc., and whatever system is ultimately developed will certainly fail in many ways. However, the key is that correcting any failures will be on the shoulders of the rights holders themselves, rather than government-sponsored highly contentious decisions about the value of art.
A Significant Problem: Using Any Software Won't Cut It
Why? Free riders. If people are permitted to freely share files on existing P2P systems, there goes any chance you have of limiting free riding.
Under EFF's proposed system, say I go ahead and get a license. For $5/month I can fileshare with impunity, that is, I can upload songs all day long. The free riders in this system will be the people downloading the songs from me. How do you enforce against downloaders? You can't, at least without draconian technical and legal enforcement mechanisms which I am sure the EFF would rightfully oppose.
What will happen under EFF's system is that a significant number of people will sign up for the system, say 10-20% of the filesharing population (if you are lucky). At this point, you stop getting subscriptions, because the free riders can get all the music they want for free, without fear of legal sanction. Sure, you might have some foolish people who both download and upload, but not many and all you'll do is turn them into legitimate uploaders for a small fee/fine. Suddenly, your $3 Billion/year is only $600 Million or $300 Million. Additionally many fee-paying subscribers will feel like suckers for paying, when there is no way
ISPs will not be big fans of this either. Sure, one ISP can offer "Unlimited Uploading and Downloading only $5/month!" Joy. The other ISP offers "Unlimited Downloading - For Free!". What uses more bandwidth, do you think? If I were an ISP, I would much prefer people downloading the music they listen to, then serving as much music as their system will handle (with no money for me - the $5 goes to the copyright holders).
Controlled Uploading: It Doesn't Have to Bad
Compulsory licenses avoid this problem by forcing everyone to pay, regardless. This comes at the expense of heavily involving government, which should be a last ditch solution.
Any voluntary solution that will work will have to control uploading to a certain extent. I, myself, believe that something similar to Bit Torrent would work pretty good. Basically, those who have paid the $5/month would gain access to Bit Torrent seeding servers for the download of music. Those who don't pay, don't get access. People would not be permitted to share the songs directly (though there is still the darknet), but could easily share Bit Torrent pointers, such that another subscriber would be able to download the same song (more efficiently than most fully decentralized P2P systems).
Of course, acting as a Bit Torrent "seeding" host should be freely available to any player in the system, as long as they agree to comply with certain objective standards regarding security. You could even have Bit Torrent servers that charge for better access (with some of the money going to the copyright holders).
There are other benefits to this quasi-centralized service. Standardization of formats and metadata will permit search engines to compete on better finding music. Playlist swapping would become efficient. Remix "recipes" would also be possible.
Let us continue the debate.
See also,
Furdlog: Jason Schultz and Dreak Slater On Compulsory Licensing and EFF’s Compulsory Licensing Trial Balloon.
WIRED: The Answer to Piracy: Five Bucks? (What's up with the levy? Bad idea.)
Not Quit a Blog: the EFF "solves" p2p...
Unlimited Freedom: The EFF Offers a Better Way Forward on File Sharing
The Register has a great interview with Jim Griffin on the future of the music industry (Why wireless will end 'piracy' and doom DRM and TCPA - Jim Griffin). Jim is spot on. The only quibble I have is that there are other people with an interest in promoting DRM than just the music industry. Apple might not really care, but Bill Gates would certainly love to have mandated DRM across the board. Read the whole thing.
Andrew Grumet is developing a very interesting TiVo hack (RSSTV: Syndication for your PVR). Basically the idea is to share PVR program recording information via RSS. So, when you subscribed to an RSSTV feed, your PVR would record the shows in the feed. Friends and bloggers could easily suggest shows to each other and even create their own virtual networks. Channels would no longer manner; we would watch Mary TV, or the Felten tech channel, based off these RSSTV feeds. Goodbye NBC, CBS, and ABC. Hello, Balkin's Pop Culture for Constitutional Scholars TV.
Of course, another thing I would really be interested in is a nice RSS feed for music. Programming playlists is too much work, and I like the structured serendipity of a good radio show. Why not RSS feeds for music that my MP3 player would synch with? It would be great if it would download stuff I didn't already have, but even without that, it would be pretty darn nice.
via David Galbraith
The New York Times (reg. req.) has written an article on the different approaches that pornography companies are taking with regard to P2P (The Pornography Industry vs. Digital Pirates). The responses range from "It's direct marketing at its finest" to tactics similar to those used by the RIAA. This is not surprising, however, due to the fact that music and pornography industries are structured very differently. After all, no one would be surprised that book publishers aren't going after filesharers, since ebook sharing isn't nearly as big a threat to book publishers as music sharing is to music publishers.
On of the key paragraphs for me was near the end of the article:
Pornography merchants say that they have the advantage over free file-sharing networks, at least for now. They say the networks are not well suited to the needs of their consumers, who like images and movies that push their very specific buttons for, say, blondes or cheerleaders.
Basically, you can still sell porn despite free P2P versions because there are other barriers to access that a legitimate site can easily overcome. Unlike MP3s, for example, images and many pornographic videos on P2P networks have atrocious metadata. Because MP3s are relatively metadata rich, it is easy for someone to search for particular artists or songs. If you had to rely solely on filename (as much pornography must), it would be much more difficult to find the music you want.
As the paragraph notes, people are often interested in particular types of pornography (i.e., foot fetish, smoking fetish). Finding such images would be as difficult as searching music only by genre. You can find it, but the search is much more burdensome than searching for specific artists. I think radio, for example, helps reduce search costs for music. There is no equivalent of radio for pornography.
Anyway, pornography and music are different markets and their responses to filesharing will be different. However, there are lessons for the music market. Number one, convenience is worth money. A site that can make it easy for me to find music I will like and get that music for me when I want it is more valuable than an inconvenient, hit-or-miss P2P experience. As a porn entreprenuer says:
"Free is very anarchistic and hard to deal with, and you don't know what you're getting," said a pornography entrepreneur who goes by the online pseudonym T. Lassiter Jones. "Cheap is more convenient."
The formula for the record companies to survive is simple: raise the cost of using P2P networks (through lawsuits, bogus tracks, etc.) and provide convenient, inexpensive legitmate access to music. Once the cost of the legitimate source is less than the costs associated with P2P, then P2P will no longer be a major threat. Percentages might fall, but the overall market will likely grow.
In this model, DRM is a mistake. DRM does not significantly raise the cost of P2P (the music gets on the network anyway), but does decrease the value of access to authorized music files.
It works for pornography.
C|Net News reports that the Distributed Computing Industry Association (the P2P industry group), has proposed a third business model for legally sharing music via P2P (Trade group proposes new P2P music model). You can read the details of all three models in a Power Point presentation (ever hear of open formats DCIA?): P2P Music Models [PPT].
Like their other models, this model has a snowball's chance in H-E-Double-Hockey-Sticks chance of succeeding, but then the DCIA isn't really interested in success, they are just interested in acting as if they want a solution. However, to the extent that they are proposing solutions that give the music industry a chance to control the market, the DCIA is essentially fronting for the RIAA. So let's take a look at this "new" model:
The model is a joke from the introductory sentence:
Sell content to consumers in the P2P marketplace - first by digital watermarking and DRM, then through uploader incentives and user participation programs.
Ummm, and why would people want to buy something they can get for free? Why will people download music files with DRM when they can, just as easily, download files without DRM? This makes absolutely no sense. Which brings us to "Phase 1":
Introduce digital watermarking system and apply DRM to copyrighted music in P2P distribution regardless of point-of-origin
What planet do these guys come from? Seriously. What sort of draconian, totalitarian solution will be required to ensure that all copyrighted music that enters P2P distribution networks has DRM and watermarking? This is simply ridiculous. It is hard to believe they can say this with a straight face. However, wouldn't Hollywood love this solution? All content would be ID'd and protected by DRM. I say that the DCIA can take my non-DRM, non-watermarking Ogg Vorbis ripper when they pry the keyboard from my cold, dead fingers.
Maybe We Can Bribe Stupid People, aka Phase 2
Incentivize active file sharers with revenue-sharing program for upgrading and applying DRM to music files they redistribute
This is a really great way to identify uploaders, who will presumably have to provide all sorts of identifying information to the RIAA in order to get their share of the funds. These readily identifiable uploaders better make sure they aren't sharing non-DRM'd copyrighted files or they will be in for a world of legal liability. This, of course, would tend to make their ability to redistribute much less than those who don't play nice with the RIAA/DCIA.
In any case, how in the world will they implement this? Will uploaders get paid for each download? Will uploaders get paid for each DRM wrapper that is opened? If so, how will the RIAA/DCIA keep track? Will each uploader have to create a unique DRM wrapper? The problems here are not trivial.
Also, explain to me again why P2P is the best way to implement this system? Why not just use webpages?
All Your Files Are Belong to Us, aka Phase 3
Ubiquitously deploy ID/DRM system to protect consumer-produced as well as label-produced musical works
Well, of course consumers should be able to participate in this DRM'd paradise. After all, if consumer-produced music wasn't properly DRM'd then we would be swamped with lots of non-DRM'd files in the P2P network, which would make it much, much harder to stop the non-authorized filesharing of copyrighted music.
Although this would be "voluntary" ("Develop technologies to permit consumers to insert file-fingerprints and register their own recorded musical works for P2P distribution" [emphasis added]), in the end it would become mandatory for all filesharing:
After full marketplace acceptance, evaluate TBD methods for potentially filtering unknown music files in manner acceptable to all affected parties
Gee, isn't that what the RIAA is asking for now? Thanks for nothing DCIA.
Now this is cool marketing: Diesel Mix CD Starting Kit.
Mix CDs are fun! Take them with you! Trade them! Impress your friends! To help you satisfy your 'mix fix,' Diesel and Insound have put together a 'Mix CD Starter Kit.' When you spend $25 or more from Insound you get an adorable CD-R in your order to start your mix CD. In case you're having trouble finding the right songs to include on your CD, don't worry. We've got the best new music here on this very page. Songs perfect for first crushes, breakups, lonely hearts, friendships, Bar Mitzvahs. We've got it all. So, simply check out the newest MP3s on this page and start making your playlist. When you're ready, you put your CD-R into your computer, burn your tracks to the disc and you can start impressing people with your good taste. Check back here each month for new music and simply spend $25 to get the free CD-R. It's very cute and pretty fancy.
Check out photos of the kit here: Outside and Inside.
via Not Quite a Blog
Terra Nova has an interesting little article on so-called "rogue servers" that host MMORPGs (Free Rogue Server Achieves Significant Population). Most, if not all (any P2P MMORPGs out there?), MMORPG are based on the client/server model, where each user has a client that talks to a centralized server. The client programs are either sold for a one-time fee or given away. The business model is based on charging subscriptions for the client programs to have access to the server. The issue of rouge servers arises when hackers reverse-engineer or obtain by other means the server software and begin running their own servers.
From a free speech and copyright overreach point of view there are serious legal and policy issues in any attempt to thwart many of these "rogue servers." See, EFF's work on the Blizzard v. BNETD case for some details on some of them.
The discussion on Terra Nova is quite interesting and there is the suggestion of franchising the running of servers. But why not go farther? Compete with these rogue servers by creating server subscriptions. That is, you can have a client and subscribe to the main server farms, or you can run your own server (for you and your friends/clan, perhaps). As a server manager, you subscribe to a service that keeps your server up-to-date with patches and new content (which you use to keep your friends happy).
I think I've written about this story enough (Twenty-one Oscar Screeners on the Internet? and Another Screener on the Internet and A Beam in Hollywood's Eye), so this will be the last post on this subject for a bit (unless something really interesting happens). But, according to an AP wirestory in the Monterey Herald, Hollywood has acknowledge yet another screener on the internet and one on an auction site (Two new copies of movies sent to Oscar voters offered on Internet).
The copies have been traced to a technologist, Ivan Kruglak, president of a wireless data communications company who won Oscars in 1999 "For his commitment to the development of a wireless transmission system for video-assisted images for the motion picture industry" and "For his pioneering concept and the development of the Coherent Time Code Slate." Kruglak proclaims his innocence, "I firmly believe someone at the duplicating house made themselves a copy before the studio sent it to me." If true, it proves that Hollywood's vaunted efforts to protect its films from showing up on the internet is a joke.
This shows that either Hollywood can't keep their own duplication houses in line or the members of the Academy are lying infringers. Nevertheless, Hollywood calls on consumers to be punished with onerous DRM and thrown in jail for bringing a videocamera (such as a cellphone/camera) into a movie theater.
via Techdirt
internetnews.com reports that Sen. Norm Coleman (R - MN) is planning to convene a summit within in the next two months to bring together the various interested parties with regard to P2P (Senator Plans P2P Summit). This summit will not be addressing any specific piece of legislation, but looks to be an attempt to knock some multi-industry heads under a congressional rubric.
Steward [Coleman's communications director] said Internet service providers (ISP), hardware and software executives, P2P companies, entertainment industry leaders, technology experts, privacy advocates, academics and entrepreneurs will be invited to the Washington roundtable to discuss the issue.
Waxy.org has done a little research on the Oscar screeners available on the internet and has found twenty-one of twenty-two films widely considered likely Oscar candidates to be available in screener format on the internet (Researching the 2004 Oscar Screeners). Those who actually rip movies to the internet aren't always entirely truthful about the provenance of their rips, nor is the terminology quite clear. "Screener" in this case could be from one of the tapes or DVDs sent to an Academy voter, or could be ripped from a version sent to advertising agencies, marketing companies, or other industries that need primary access to the film. Still, I wouldn't be surprised if it ultimately turned out that there were at least several more Oscar voting screeners on the internet than the two already acknowledged.
I'm shocked, shocked, that Hollywood insiders would put recently released movies on the internet. This time it is mediocre Tom Cruise Oscar-bait The Last Samurai, according to an AP wirestory on Salon (Another Oscar screener movie found online). This time, however, there are no names named as the source of the leak. Either Warner Brothers is too dim-witted to use watermarking for its screeners, the watermarking was removed, or Warner Brothers doesn't want to name names, as Sony did. Perhaps the source of the Samurai leak is more highly placed than Carmine Caridi, the 69-yr old character actor whose copy of Something's Gotta Give made it to the internet last week.
According to his agent, Carmine has retained an attorney and is not forthcoming about how the movie was leaked. Interesting.
C|Net News reports that the Supreme Court of the United States has, unsurprisingly, denied cert with regard to the Aimster case (High court turns deaf ear to Aimster). Given the procedural standing of the case (appeal of a preliminary injunction), the fact that similar issues are being litigated in other circuits, and the Supreme Court takes very few cases anyway, the cert request was a major longshot. Nevertheless, this is good news. As noted in previous coverage (Miller to Deep: What Derek Said and Madster Seeks Supreme Court Cert), this would have been the wrong file sharing case to bring before the justices.
Once again, Hollywood insiders are to blame for piracy. When will the movie studios take action against the thieves in their own midst, particulary when they hide in such obvious places as the Academy of Motion Picture Arts and Sciences? As the LA Times (reg. req.) reports, at least one screener for the film Something's Got to Give has been copied onto the internet (Screener Ends Up on the Internet).
The investigation (through watermarking, apparently) seems to point to a copy sent to Godfather II actor and NYPD Blue recurring guest Carmine Caridi. The screener appeared on the internet last week, but the Oscar voter being investigated has yet to provide an explanation, although he has been asked to do so.
This, after all those who receive screener were asked to sign a form promising to safeguard the screeners. Shockingly, only 80% of the forms were signed and returned. But have we heard anything from the movie studios about this? Why haven't they taken any action on this blatant disregard for the rights of the copyright holders?
Shame, shame, Hollywood. Stop whining about the broadcast flag before you clean up your own act.
And why beholdest thou the mote that is in thy brother’s eye, but considerest not the beam that is in thine own eye? Or how wilt thou say to thy brother, Let me pull out the mote out of thine eye; and, behold, a beam is in thine own eye? Thou hypocrite, first cast out the beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother’s eye.
Nap·ster·i·za·tion n. The disruption by new technologies and digital media of old economy institutions and analog frameworks.
Mary Hodder, of the bIPlog, has started a new blog dedicated to the process of Napsterization. The mission of the blog is described as follows:
Napsterization.org blog focuses on positive, fair-use and legal examples of peer-to-peer file sharing of works approved by their creators for sharing, helpful in learning about works that are then lawfully purchased, or otherwise considered fair use under the "fair use doctrine" in American copyright law or the copyright laws of other countries.The blog also gives examples of digital expresssions of disruptive technologies effects and old analog systems and institutions, as well as analysis and opinion of the effects of distruption.
As CNN notes in an otherwise slow newsday, porn is a popular business on the internet (Sex sells, especially to Web surfers). However, see Seth Finkelstein's dissection of the "report" CNN is relying on (N2H2 "State Secrets" - PR and lying with statistics [part 1]) and (CNN, "web porn", and censorware PR Managers).
Regardless of the validity of the report, it is undisputed that pornography is popular on the internet, including P2P networks (of course, porn has been popular in every medium). Note, that contrary to some claims, pornography hasn't been shown to be more of a problem on P2P networks than the internet generally as a leaked GAO memo obtained by TechNewsWorld concludes (U.S. Congress: P2P E-Smut 'Not Necessarily' More Dangerous than Other Forms).
In any case, the debate over compulsories has raised a serious barrier to their implementation - the political unpopularity of systems which will provide cross-subsidization for pornography. In other words, taxes (whether levy or general) would be collected and then distributed to pornographers. This would not be, to put it mildly, politically popular. Furthermore, I use the term "pornography" only as the most blatant example of content that would be politically unpopular. I can imagine, for example, that certain genres of music, such as "gangsta rap," would raise similar objections (how would people feel about tax dollars subsidizing music that glorifies cop-killing?). This is a serious problem and one that hasn't really been addressed by proponents of government mandated compulsories, especially given the track record of political debate over the relatively small amount of money dedicated to the National Endowment for the Arts.
Nevertheless, the issue of compulsories and pornography may create other problems as well. One I am concerned about is the potential for mandatory filtering to go along with the mandatory compulsories. Although none of the proposed compulsory systems speaks to the issue of filtering (and I am sure the proponents would oppose it), the systems certainly enable a mechanism that would make such filtering possible. All of the proposed government mandated systems envision some form of centralized registry for copyrighted works so that the works can be monitored and tracked and appropriately compensated. How much more of a step would it be to require works in the registry to also include self-labeling information?
I can imagine that many people would make the claim that, for example, pornographers shouldn't be compensated for having their files shared by minors. Two 15-yr olds file share a pornographic movie. Should the pornographer be compensated? If not, then the system will have to include self-labeling by the pornographer as well as parental controls (filters) in the file-sharing/playback devices. How will this work? Will political pressure force "voluntary" labeling schemes onto content producers who wish to be compensated? How will the survey/monitoring systems handle devices with and without filtering mechanisms?
No compulsory scheme advocates for labeling and filtering. However, we should consider likely ramifications of such compulsory schemes, and increased political pressure for labeling, whether "voluntary" or not, is likely.
C|Net News reports that Toshiba will be unveiling a new micro hard drive, about the size of a quarter, next month (Spare a microdrive, Toshiba?). The storage capacity is anticipated to be about 1-4 GigaBytes. Hard drives continue to kick Moore's Law's behind. Any consumer electronics device worth more that about $100 will soon have massive amounts of storage available to it. The advent of such huge amounts of storage everywhere has some important implications of intellectual property law. In particular, it significantly raises the cost of a mandatory DRM dystopia as well as the costs of monitoring for compulsory licensing schemes. Levy compulsory systems that raise money through a tax on consumer electronics and connectivity will be challenged by such rapid development. The digital revolution is far from over.
Prof. Ed Felten, who attended the Alternative Compensation Systems conference this past week, has made a challenge to compulsory licensing proponents on Freedom to Tinker (Devil in the Details):
So here is my challenge to compulsory enthusiasts: tell us, in technical detail, how you propose to do the measurements. You don't have to give us working code, but do tell us which programs you would write or modify, and what specifically they would look for. Tell us how you would cope with backward compatibility, and the diverse formats in which people download and store music. Tell us how you would deal with non-PC platforms such as Macs, Linux boxes, and iPods, as well as non-traditional network setups such as public WiFi access points.
For example, monitoring can be optional for voting systems. If your devices support monitoring, then they can help you allocate how your "votes" are "spent" based on use. However, since it is a voting system, the monitoring can be optional.
For a Nielsen-type system the monitoring issue is somewhat easier since there are a smaller number of families/devices being monitored and they have volunteered for duty (meaning compliance would be higher). PC Software for the three major desktop systems (MS, Mac, Linux) that monitors P2P usage (downloads, uploads, plays) might be all that is necessary to be acceptable, given how imprecise Nielsens are in the first place. If necessary, there might be some extension of play monitoring to some mobile devices, perhaps specially configured devices provided free of charge to the Nielsen family.
The problems of monitoring for voting and Nielsen-type systems don't seem particularly challenging to me (unlike widespread monitoring of all users). However, voting and Nielsen-like systems create their own set of peculiar challenges.
Copyright Scholar and Law Professor Jessica Litman has posted a new work in progress dealing with the question of file-sharing and compulsory license (Sharing and Stealing). It is an interesting paper, and one that I am thinking about and hope to write a few more comments on. However, I did want to point out a sentence that has been quoted on Legal Theory Blog and Copyfight:
The fact that more than sixty million consumers are currently exchanging music over peer-to-peer networks in the U.S. gives them a stake in the building consensus and both a moral and a political claim to a seat at the copyright bargaining table.
I don't believe that the fact that you file-share gives you any more moral or political claim to a seat at the copyright bargaining table. Copyright is about issues of culture and free speech. I think that is a sufficient basis for a strong moral and political claim for every citizen to have a seat at the copyright bargaining table. Prof. Litman certainly didn't mean that only file-sharers have a right to be at the bargaining table, but the impression given is that file-sharers somehow have privileged status.
Sixty million people can't be wrong is the oft-heard phrase. Yes, they can. A stronger moral claim to be part of the bargaining process can be made by those who boycott the artists whose representatives attack innovation and fair uses, rather than those who merely desire "free music."
iRATE Radio has nothing to do with the angry blowhards of the talk radio circuit, but rather is an open source,
collaborative filtering client/server mp3 player/downloader. The iRATE server has a large database of music. You rate the tracks and it uses your ratings and other people's to guess what you'll like. The tracks are downloaded from websites which allow free and legal downloads of their music.
I haven't actually tried this yet (I've got too much stuff on my system as it is and it looks like it is pretty early in the development cycle), but it sounds like something I've been wanting for awhile (see, The End of the Beginning: The Death of MP3.com).
Although I was somewhat conclusory in my previous posting on the subject (Madster Seeks Supreme Court Cert), I still believe that it is in the best interests of all those who want to uphold the Sony v. Universal decision that the Supreme Court decline John Deep's Petition for Writ of Certiorari in the Aimster/Madster/Deep case. I believe that, unfortunately, Deep muddied the waters of his defense and this is a poor set of facts to stand upon before the Supreme Court. Without my going into more detail, Derek Slater has written a good summation of the reasons not to support the writ (My Reply to John Deep of Aimster). For the opposing view, see Aimee Deep's (John Deep's daughter) views on the subject (John Deep v. RIAA - O Ye of Little Faith).
Instapundit, aka mild-mannered law professor Glenn Reynolds, laments the death of MP3.com on Tech Central Station (Death of a Friend). I too, lament the death of MP3.com and the threat it posed to the distribution oligopolies of the extant recording companies. However, I'm not nearly as pessimistic as Prof. Reynolds about the possibilities for online music.
Reynolds notes that MP3.com might simply have been a "false dawn." I agree. We have not yet seen the full range of possibilities for the distribution of music, just as the first wave of internet home pages did not obviously indicate the path to the current blog renaissance. When people can share playlists and collaborative filtering creates automated radio channels (automatically downloading songs to your device), and the technology is transparent and ubiquitous, then we will have a better idea of where music distribution will wind up. I don't want to go to a website to find alternative and independent artists. I want to listen to cool radio stations (run by people or algorithms I trust) that will introduce me to great music that I can immediately save for later listening. Until then, we are stuck in a world in which proprietary systems clash with each other in a (hopefully) futile attempt to control citizens, consumers and producers.
See also, Derek Slater's questions about control over distribution technologies (Sony, Napster, and the Subtler Problems with a Redesign Rule for Copyright Liability).
Eric Rescorla's Educated Guesswork blog brings up a concept I've thought about for quite some time, selling MP3 players pre-loaded with music (The future of the iPod?). In Eric's concept, although heavy discounting is involved, the price for a populated iPod would be about $1000. That is still a pretty high price, particularly with all the DRM involved. But the price doesn't seem all that outrageous as part of the price for a new luxury sedan or SUV.
So, why not have cars marketed with an integrated MP3 player pre-loaded with a nice selection of music? Cars are mostly marketed as a lifestyle purchase anyway, often through the use of music. So, why not spice up that purchase with a generous selection of music that matches the particular purchaser's lifestyle? Why shouldn't a music package simply be one of the possible extras and accessories that car purchasers choose along with color, fabric and undercoat protection?
Apple and Volkswagen once ran a promotion in which iPods were given away with the purchase of a new Volkswagen Beetle (iPod and Volkswagen Beetle unite). Why not take it to the next step?
A number of folks, such as BoingBoing and Furdlog, point to a parody website advocating sending MP3s by email, post or fax to the regional authorities for the RIAA (Send Them Back.org). The joke is that if you "stole" the MP3s, it is only right to send them back as a sign of contrition. A mildly amusing concept. There is a problem here, although it isn't the one that concerns Joho and Scripting News. The problem is that emailing MP3s to the RIAA is a violation of copyright (the RIAA doesn't actually own the copyrights). Additionally, by emailing the MP3s, you are (unless you are carefully taking precautions) telling the RIAA exactly who you are. At a minimum liability of $750 per MP3 mailed, the joke could turn sour very quickly. While I don't think that the RIAA will actually sue people who do this, they just might, or at least take a closer look at those who have (are you sure the RIAA doesn't have any evidence of your previous file-sharing?).
Derek Slater has had a chance to think a bit more about the recent adoption of Napster by the Nittany Lions and the results are worth reading (Responses to Thoughts on PSU/Napster). His main point in this post is that it doesn't make a lot of sense for PSU to spend money on Napster. Although colleges often spend money on things like cable access for students, Derek makes the case for distinguishing Napster from these other services.
Three days ago, I posted regarding an almost off-handed comment by Mickey Kaus regarding the MPAA's move toward an anti-file-sharing litigation strategy (Motion Picture Studio Chiefs Want MPAA to Adopt Anti-File-Sharing Litigation Strategy). Yesterday, the LA Times (reg. req.) published a much more indepth analysis of this new blockbuster strategy (Is Hollywood Failing to See the Big Picture?). The article should be required reading for anyone following these issues and there are certainly some interesting quotes:
Warner's chief, Meyer, predicts that "there is a day coming when, to properly protect movies from piracy, we'll leverage off the original theatrical marketing campaign and release movies any way the consumer wants it — on his computer, on his TV or at Wal-Mart — all at the same time."
WIRED publishes a Reuters wirestory on Sony re-launching its ConnecteD CD Extras format as a new type of DRM (Sony's User-Friendly Copy Block). Love the title for the piece - where did it come from? The press release? Simply more evidence of Sony's consumer electronics schizophrenia. How long before someone like Alex Halderman writes a critique of Sony's DRM as devastating as Halderman's analysis of SunnComm's (Analysis of the MediaMax CD3 Copy-Prevention System).
Slyck, a P2P news site, reports that Madster (the P2P program formerly known as Aimster) is seeking a Writ of Certiorari to have their case heard before the US Supreme Court (P2P Company Takes Battle to Supreme Court). You can read the petition here: Petition for Writ of Certiorari (03-658). The case was brought by members of the recording industry alleging contributory and vicarious copyright infringement by Madster. The district court granted a broad preliminary injunction against Madster and the Seventh Circuit upheld the preliminary injunction. Read the Seventh Circuit's decision (authored by Judge Richard Posner) here: In re Aimster, 334 F.3d 643 (7th Cir. 2003).
I don't think the Supremes will take the case and, frankly, I hope they don't. This would be a bad set of facts and argument to use as the basis for the court to take another look at Sony v. Universal.
via Zeropaid
I don't often link to Mickey Kaus (he generally covers stuff that I consider off topic for this blog), but I certainly read him on a daily basis. Today he has an interesting post about the appearance of a conflict of interest with regard to the author of a recent puff piece profile of Jack Valenti in the New York Times (Another Easy One for Daniel Okrent, Public Editor!). Seems the author of the piece is the spouse of Amy Pascal, one of the Vice-Chairman of Sony Pictures Entertainment. Interesting enough ... but there was something even more interesting in Kaus' piece:
But here's what Weinraub was either too inhibited or uninformed to report: Valenti's bosses, the studio heads, are not happy with him. Why? Because he doesn't want to pursue a litigation strategy to combat the threat of piracy (maybe because he doesn't want to end his long Motion Picture Association career in an atmosphere of contention and controversy). But the studios are insisting on litigation. [emphasis in original]
So, seems like the MPAA will soon turn towards a litigation strategy similar to the RIAA's. Frankly, it makes sense to me.
George Mason University Economics professor Tyler Cowen has a pretty good take on the music industry mergers, I think (New music merger?):
This is a desperation merger in a fading industry. The real "industry sector" includes file sharing, once you count that, and the accompanying zero price, the concentration issues do not look so bad. On the other hand, shareholders should not worry if they don't get regulatory approval. I would expect a mess more than any significant cost savings, as the merger does not address the underlying problems faced by either company.
via The Bottom Line
Frank Field has extensive coverage on Furdlog of Penn State's recent offering of Napster 2.0 to its students (Slashdot on Roxio/PSU) (Penn State’s PR) (PSU/Roxio Deal Fallout). Also, don't miss Derek Slater's comments on the issue ... as a college student, he isn't happy (More Crummy Reporting on Penn State's Music Service).
UPDATE 0715 PT
Derek has a couple more posts on the issue (The Price is Wrong? (Pt 2)) and (My letter to Pho on PSU/Napster). Be sure to read the open letter here: psu/napster pho letter.
C|Net News has an interesting piece on the incompatibilities created by the use of DRM (Stalemate on digital content?). The underlying video might be standard MPEG, but the differing DRM used by two different systems makes the formats incompatible. You can't listen to Windows Media Audio (WMA) on iPod, and you can't listen to Advanced Audio Coding (AAC) iTunes on anything but iTunes.
This is sort of like the war between Beta and VHS, except here you have un-DRM-encumbered formats such as MP3 and Ogg Vorbis. Are Microsoft and Apple secretly trying to reduce the market success of their licensed music downloads?
Ernie the Attorney points to a neat little program called the iTunes Catalog that lets iTunes users (Mac only) create a professional-looking catalog (including album cover art) of all your iTunes music in HTML of PDF formats (What's in your iTunes music catalogue?). You can check out a sample catalog taken from Ernie's collection here (Ernest's Library). I think this very cool (though I don't have an iPod).
However, a few questions/points:
First, why do you have to pay ($10) for this software? The HTML catalogs can easily be linked into the iTunes store, thus providing lots of free advertisement for iTunes and their licensed artists. I rather expect Apple and its now numerous rivals to provide this functionality in upcoming releases for free. Heck, I would imagine that they would host the catalogs free-of-charge.
Second, where is the easy ability to publish playlists and the associated software that will let me automatically download all the music to go along with someone's playlist that I trust? I have eclectic tastes in music, but generally I don't want to indiscriminately mix genres (discriminately mixing genres for a playlist is something else). Playlist functionality would be a useful addition to all these online systems.
Third, people always talk about the social benefits of Original Napster-like collection browsing. Doesn't software like this provide almost the same social benefits (and in some ways, more), while being fully legitimate?
The Guardian has an interesting story on the rise of child pornography on P2P networks (Race to save new victims of child porn). Rather than simply bemoan it, the article points out how it has increased the ability of police to investigate. The main problem seems to be that there are too many targets to investigate, not that they can't be found. The article quotes David Wilson, professor of criminology at the University of Central England in Birmingham, as saying that,
The achilles heel of peer-to-peer is that it makes something that is secret and furtive into something that is public and when it is public that offers the police a window of opportunity to police it.
Indeed, the article goes on to note:
Paedophiles believe it is harder for them to be detected through peer-to-peer software but investigators are able to access their shared folders and quickly discover if they contain illegal images of child abuse. They are then able to establish the location of the owner of the shared folder. ....By exposing themselves to public gaze via file swapping services, paedophiles whose abuse may never have come to light are now more likely to be caught.
Before, police would have to conduct a raid to find the amount and type of child pornography on a suspect's computer. Now, they can browse the suspect's shared files from the precinct house and learn a lot more about what their suspects have been up to (and how dangerous they might be).
Of course, some worry that pedophiles will switch to encrypted networks. Perhaps, but that means it will also be harder for pedophiles to find and provide support for each other. Either way I think this is a win for child porn opponents.
Every year in October since 1973, Knott's Berry Farm (a theme park in Southern California) is transformed into Knott's Scary Farm, one huge, fiendishly frightening park with more than a dozen haunted mazes and other horrific attractions. It is the first and many think the best Halloween-themed theme park. If you enjoy things Halloween and are in Southern California during October, it is a must see.
In any case, one of the highlights of a visit to the Halloween Haunt is "The Hanging," which is a parody of pop culture and celebrities, with many stunts and special effects. During the event dozens of celebrities are slaughtered, soaking the stage (and some in the audience) with blood. A review of last year's show called the parody "so good you can smell the lawsuit." This year's hanging featured a Pirate Theme, "The Curse of the Black Pearl Necklace," a risque parody of Disney's Pirates of the Caribbean.
What would a pirate-themed parody of contemporary culture be without some references to file sharing?
In this year's show, the ghost pirates (or are they pirate ghosts?) complained that users of file sharing programs, such as "Kazaa..aar", were not real pirates and were giving piracy a bad name [I note that the audience cheered quite loudly at the mention of "Kazaa..aar"]. The "real" pirates realized how difficult it would be stop P2P programs, but they had a solution. If you can't stop P2P, you have to stop the file sharing at the source - by killing the celebrities who produce the works that will be shared! The audience seemed to like the solution quite a bit.
Billboard is reporting that the RIAA now intends to request that online music companies implement "effective parental-control filters to provide parents more information and control over what their children can download"(RIAA Pushing Advisory Warnings On Downloads). The announcement came at a FTC workshop dealing with the marketing of violent entertainment to children (Marketing Violent Entertainment To Children: A Workshop on Industry Self-Regulation).
Considering that the RIAA strongly resisted implementing any rating and labeling standards until essentially forced to by congressional scrutiny in the late 1980s, it therefore seems odd that the RIAA would now be recommending filtering. Indeed, of all the rating systems, the RIAA's is the most granular - a recording either has a parental advisory or it does not (Information for Parents - Parental Advisory).
So why now the push for filtering, which the RIAA of 20 years ago most likely would have strongly opposed? The answer is obvious - as a way to attack P2P. Note The answer is in the article:
[RIAA chairman/CEO Mitch] Bainwol said the RIAA's guidelines "will reinforce the importance of consistent descriptors across all services" and should "help parents draw a distinction between the pirate peer-to-peer networks and legitimate online music services. [emphasis added]"
In other words, the RIAA is hoping that, since unlicensed P2P systems are unlikely to have effective rating and filtering systems, parents will turn to licensed systems for music downloads and prevent their children from using unlicensed P2P networks.
I haven't been able to find the new standards for rating and filtering online yet, but it will be interesting to take a look at them.
bIPlog which had a great set of links on the Diebold/Swarthmore scandal yesterday (Cease and Desist Me, Babe) and was Slashdotted this morning (Diebold Chases Links To Leaked Memos), points to an interesting /. comment (/. Comments):
Yea, that's right, go on kazaa and type in Diebold and you'll find the mail....on over a hundred different hosts with quick speedy downloads to par!Same's true for all the p2p apps, even the waste network I'm on! Sorry Diebold, I'm not gonna stop hosting your memo's until your entire goddamn corperation is taken down and the lie is revealed.
When will companies learn that often times the best way to solve a problem is to ignore it? Diebold's heavy-handed efforts to stamp out the distribution of the memos is only increasing their distribution and public awareness.
You know, I actually have to give Jack Valenti props over the recent screener brouhaha, which he discusses in an OpinionJournal commentary this morning (Sorry, Screeners). One of my biggest complaints about the MPAA has been that they've concentrated their anti-piracy efforts on the average consumer, the vast majority of whom are not engaged in nor have any desire to engage in piracy. At the same time, the MPAA was ignoring the piracy that was coming from within their own industry. For these reasons, I considered the MPAA to be a pack of hypocrites. Now, however, the recent screener ban has made me reconsider my opinion. This doesn't mean that I agree with the MPAA, just that I am no longer so sure they are inconsistent weasels. Weasels, yes, inconsistent, not so much anymore.
For the first time, the MPAA has acknowledged that the industry itself is a serious part of the piracy problem. Indeed, Jack himself has admitted that he violated the uses for which screeners were authorized:
Last year, the MPAA antipiracy department discovered that of the 68 titles sent out last year, 34 were pirated, and wound up mostly in Asia and Russia, where they were stamped into counterfeit DVDs and flung around the world. Recipients of screeners weren't engaged in piracy. But most of them, as I did, gave some movies to relatives and friends who in turn gave them to friends, who gave them to friends, and somewhere in that chain the pirates pounced.
Even more interesting are the tactics the MPAA has adopted, after some negotiation, for dealing with piracy:
[Frank] Pierson [president of the Academy of Motion Picture Arts & Sciences] would send to each Academy member a document for signature. The member would receive screeners from the studios with the following provisions: (1) that the screeners, sent in VHS format only, would not leave the member's home, (2) that the member understands the studios reserve the right to identify/watermark the cassettes, (3) that the member is aware that if a screener is pirated and traced back to the member, he or she will be expelled from the Academy. Any member will confirm that this is a severe penalty.
These actions are actually consistent with the MPAA's usual anti-piracy arguments. First, by having Academy members sign an actual piece of paper, we can see that the screeners are not really owned by the Academy members, but rather are licensed to them. Considering that the MPAA maintains that someone who actually purchases a DVD has no real right to the content other than through means the MPAA approves, requiring Academy members to actually acknowledge their limited rights is quite consistent.
By sending the screeners in VHS format only, the MPAA is acting consistent with their belief that digital copies are far worse for piracy than analog copies. Nevermind that you can use the VHS tape to generate a nearly pristine second generation digital copy (which can be reproduced flawlessly from then on), mandating VHS is consistent with previous MPAA arguments about the dangers of digital copies.
Not letting the copies leave the member's home is quite consistent with the MPAA's position on file sharing and the broadcast flag. For the broadcast flag to be at all effective, it is going to have to make it very difficult for people to share files with friends, essentially ensuring that copies of broadcasts never leave the house of the originator. Again, very consistent.
Watermarking is a security option that the MPAA has long been in favor of. Practical consideration, costs and some public outcry have been the only things preventing the MPAA for pushing harder for watermarks. Interestingly, it makes much more sense to watermark such a limited distribution of copies, where every recipient is known (and isn't paying for the copy), rather than have some sort of mandated global watermarking system.
Real consequences for industry insiders. Though the MPAA says that they have no intention of suing Academy members for failing to abide by these rules, merely expelling them, the MPAA isn't giving up the right to sue if they so choose. This is pretty consistent with the MPAA's anti-piracy positions, particularly assuming that Academy membership has a non-trivial value.
I think the screener ban is a bad idea (and I'm not so sure the studios didn't engineer it somewhat to favor their product at the expense of independents), but I do have to acknowledge that the MPAA is acting with more consistency than usual.
After a week in which it seemed that only the proponents of the Broadcast Flag were getting their voice heard, two articles in the mainstream press provide more of the critics' perspective. WIRED extensively quotes Broadcast Flag foe Fred von Lohmann of EFF (A Case of Piracy Overkill?). Nevertheless, it seems that the FCC is determined to make the terrible mistake of implementing a Broadcast Flag. The mistake might be worse than previously thought, according to the New York Times (reg. req.) article (Critics Press Case on TV Privacy Rules):
An F.C.C. official said, for instance, that the broadcast flag could contain software code that was recognized by computer routers in a way that the program would self-destruct after passing through three routers while being e-mailed by a user.
That's right. The FCC is thinking about regulating email routers so that they scan and filter emails for the Broadcast Flag. That is such a stupid idea I don't know what to say.
And what does "three" routers have to do with it? Is it okay to send email with television shows if it only goes through one router? These officials are unbelievably clueless. Really.
UPDATE 0805 PT
Salon has an excellent article on this as well (Hollywood to the computer industry: We don't need no stinking Napsters!).
The New York Times (reg. req.) reports on the Library Access to Music Program (LAMP) at MIT (With Cable TV at M.I.T., Who Needs Napster?). You can read MIT's press release (MIT students launch campus-wide electronic music library). Read the FAQ (LAMP Frequently Asked Questions). And you can hardly do an engineering project nowadays without checking with the lawyers, thus, this interim research paper (Engineering an Accessible Music Library: Technical and Legal Challenges [PDF]). Or, if you are so inclined, grab the software (lamp-0.9.tar.gz).
So, what is LAMP? From the FAQ:
LAMP is an electronic music library of 3,500 classical and contemporary CDs that may be accessed across the MIT campus, including in student dormitory rooms and faculty offices. While at MIT, patrons can listen to CDs in the collection instantly and on-demand, free of charge, but nobody can download CDs or save them.....
Using a Web browser, patrons visit http://lamp.mit.edu/ and "check out" channels of the MIT cable television network for their exclusive use. Patrons browse through LAMP's library of 3,500 CDs and select one to play. The CD plays instantly over the "checked out" cable television channel. Users can pause, rewind, and skip around, just as if they had walked to a real music library and checked out a physical CD. Right now MIT has devoted 16 channels to the project, so 16 users can control playback at a time. An unlimited number of users may listen.
Essentially, LAMP takes advantage of inconsistencies and exemptions in the law of copyright. Because the cable network is analog, public performance of the sound recording does not require permission of the copyright holder. If the transmission were digital, well, let's just say that no one is quite sure who has to be paid how much. A license is still required for the underlying song from the composer or songwriter, but MIT has one (at the bargain price of only $4,000 per year). An additional license was also thought necessary (there are some defenses, but MIT was unwilling to risk liability) in order to have ripped versions of the CDs used in the system. This "ripped" license was approximately $8/CD, and was acquired through Loudeye. Interesting fact, Loudeye didn't have a license until the MIT students alerted the Harry Fox Agency to what Loudeye was up to by asking Harry Fox for a license for ripped CDs the MIT students planned to buy from Loudeye.
Ironically, the most played song on the MIT playlist when I checked was "The Scientist" by Coldplay.
LAMP is a direct result of the seriously confused copyright law regarding music. Exemptions and exceptions have been forced into the law to meet particular business needs and the desires of particular interest groups. The result is a mess that few outside of the legal profession can understand and something only copyright lawyers can love. Although I think that LAMP is great, it is the potentional for just such unintended consequences that makes me fear grafting even more complexity onto existing copyright law.
The Digital Collegian at Penn State has more information on the soon-to-be unveiled experimental digital streaming music service at Penn State (Details on file sharing could come next month). This is supposed to be one of the big experiments that will show the RIAA is providing reasonable (and legal) alternatives to file sharing at colleges. Fat chance. In any case, the article is really quite dreadful and misinformed. Even the title is inaccurate, as the Penn State system seems to be a centralized file serving one, not a file sharing one. Another quick example,
The program will allow students to access streaming music files, which can be transferred to an MP3 player, but cannot be burned onto a CD.
I try to keep up on this stuff, but I'm totally unaware of any MP3 players that can access streaming music files. Wireless technology makes it possible, I suppose, but I haven't seen one.
Anyway, the rest of the article is chock full of similar mistakes and misunderstandings.
For a nice deconstruction of some of the other problems in this piece, check out Derek Slater's musings on the article (Penn State's Spin Machine).
The New Republic used to run a little feature making fun of newspapers that had contradictory stories. Today, Techdirt has come across a classic of the genre (Same Study, Completely Opposite Interpretations On Downloadable Movies). Apparently, The Guardian has two stories about the same Informa Media Group study on movie piracy. One story begins with scare-mongering (Film industry pays dearly for piracy):
The impact of internet piracy could be losing the film industry $460m (£275m) annually within seven years unless the leading motion picture studios and distributors act now, warns a new report.
The other story (Studios 'should welcome' movie downloads) is a tad more optimistic:
Hollywood has little to fear from internet piracy despite the chaos that illegal download sites have wrought on the music business and movie studios should embrace downloading as a new sales tool, according to a new report.
Gnomoradio is a new open source project that integrates music file sharing with Creative Commons licenses. Basically, music under a CC license will be available on this network via a combination of file sharing methods. Since the music is under a CC license, the network and sharing is clearly legal. Moreover, collaborative filtering techniques and other social software elements will be integrated. Read the press release (Announcing the Gnomoradio Project, and Calling for Musicians). The project sounds very, very cool. Unfortunately, there is no executable currently available. I've actually been sort of expecting a project like this to come along; I hope it is successful and becomes popular.
via Lessig Blog
Dan Fingerman has some interesting responses to my claim that copyright liability insurance is a bad idea (Copyright Liability Insurance: A Response). The "insurance" he proposes only covers "settlements" but not "judgments." Thus, he argues, this "insurance" escapes the requirements of insurance discovery under Federal Rules of Civil Procedure (FRCP) Rule 26. It is an interesting argument and a truly bizarre form of insurance. I'm not so sure how many people would be interested in something that only protected them so long as they didn't go to judgment in court. Whatever the potential popularity of such a policy, unfortunately, Dan's distinction doesn't hold up. The problem is that a "settlement" is a type of judgment. It is, in fact, an "Offer of Judgment" under FRCP Rule 68.
His second claim is that I am incorrect in my argument that purchasing insurance would lead to a higher probability of being found to have willfully infringed. He makes two counter-claims: 1) that this sort of insurance should raise no more suspicions than other forms of insurance, such as malpractice; and, 2) Federal Rules of Evidence (FRE) 411 prohibits the admission of evidence of liability insurance for this purpose. Counter-claim 1 contradicts counter-claim 2. The whole purpose of FRE 411 is to keep evidence of liability insurance from the jury because of its presumed prejudicial effect. Claim 2, however, is much stronger. Nevertheless, Dan does acknowledge that evidence of liability insurance can be admissible to show other elements of a case, such as ownership, control, or knowledge. This is precisely my point ... evidence of liability insurance bears directly on the question of knowledge: did the defendant know that use of P2P can lead to copyright infringement? If you have knowledge, then it is much easier to show willfulness. Now, there may be cases where such evidence would be insufficient to show willfulness, but that does not mean the evidence is inadmissible or doesn't bear on the question.
LawMeme is floating a trial balloon regarding the concept of liability insurance for copyright infringement as a potential response to the recent spate of lawsuits by the RIAA over file-sharing (RIAA Litigation Insurance: A (Very) Speculative Solution). A new organization, P2PFund, has beaten LawMeme to the punch, however, and is already soliciting supporters for such an approach.
The basic idea is simple. File sharers pool their money in order to fight lawsuits and pay damages in case they are targeted for an infringement action by the RIAA. Since the RIAA can't sue everybody, the pooled money should be sufficient to pay the damages the RIAA has been demanding. Simple, right?
However, if you are not a fan of the RIAA's lawsuits, this concept of liability insurance is not a good idea. There is a reason that insurance companies generally try to avoid covering willful or intentional acts - they would quickly go out of business. All such a system would do would be to reward the RIAA for initiating even more lawsuits, because when they hit a defendant with this proposed insurance they can go for the jackpot.
The LawMeme piece acknowledges that the RIAA could refuse to settle until the targeted individual reveals the extent of their insurance. I'm no expert on discovery process and I could be wrong, but it seems to me that the RIAA won't have to wait long once they've initiated a lawsuit because Federal Rules of Civil Procedure (FRCP) Rule 26 states:
(a) Required Disclosures; Methods to Discover Additional Matter.(1) Initial Disclosures. Except in categories of proceedings specified in Rule 26(a)(1)(E), or to the extent otherwise stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties:...
(D) for inspection and copying as under Rule 34 any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment that may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.
Basically, I read this to mean that when a civil suit is filed, you must voluntarily disclose prior to a discovery request any insurance you have that might cover the potential claims. Nothing I am aware of prevents the RIAA from insisting on a settlement that takes into account the amount of insurance coverage, including insisting on damages beyond the covered amount.
The insurance company can fight the lawsuit, but that is a recipe for disaster for the insurance company and likely the defendant as well. The minimum statutory damages for each infringement is $750, and the RIAA has been claming at least 1,000 acts of infringement for those they are currently going after, which means $750,000 in damages, minimum. The statutory maximum for each infringement is $30,000 ... which translates into $30,000,000 for 1,000 infringing files. The lawyers for the insurance company can fight the case (which will itself be very expensive), but are highly likely to lose. On top of this, the RIAA will almost certainly be awarded lawyer's fees as well.
Another problem with buying such insurance is that it will make a defense of "innocent infringement" very, very difficult. Indeed, I would imagine that purchasing such insurance is more likely to be considered evidence of willful infringement, which means damages of up to $150,000 for each infringing file. I seriously doubt that judges are going to be sympathetic to such an insurance company or their claims. I can easily see damages set somewhere close to the maximum, given sufficient insurance coverage.
Consequently, given some decent facts and a non-sympathetic defendant, the existence of insurance would probably encourage the RIAA to go after the targeted individual in an actual lawsuit. The possibility of a large reward will incentivize precisely what the insurance is supposed to protect against.
Ebert & Roeper can take their thumbs and do something else with them from now on. Mary Hodder has come up with a more compelling measure of a movie's worth (Broadcast Flag II):
The Piracy Meter: if I pirated movies, this is how I'd rate them, as to what's worth clogging my dsl connection for 24-36 hours to get one.
The details of the meter aren't quite clear, but might I suggest the following rankings (from worst to best)?:
CAM - Who cares if the movie was recorded in a cinema with a consumer-quality camcorder and/or where the audience can be seen or heard? The movie is simply not worth the effort of getting a quality copy. Download only when desparate.
Telesync - Better than CAM, still recorded in a cinema, but usually with professional-level equipment and a separate audio source (so the audience cannot be heard). Getting better, but download only if you're not going to be using your broadband for a day or so, like during a weekend trip.
Screener - Generally recorded from promotional videotapes or DVDs which have been sent to film critics, marketing firms, Academy voters, etc. This ranking has been discontinued until further notice upon request of the MPAA.
LD/DVD Rip - Accomplished simply by copying a LaserDisc or DVD. Picture and audio quality are generally very good. Good movie and definitely worth renting on DVD, but who wants to make the trip to the local Blockbuster? Go ahead and download, unless you're too busy grabbing MP3s.
Telecine - A high quality copy taken directly from the film reel. Popular with professional pirating operations. Great movie - go ahead and download even if it makes surfing unbearably slow and then burn to DVD-R.
C|Net News (among many others) reports that the RIAA has begun to start a new round of lawsuits (Record industry warns of new lawsuits). The twist this time is that the RIAA is first sending out letters to those targeted, warning them that a lawsuit is imminent. The letter gives the targeted individuals ten days to respond to the RIAA before a lawsuit is filed. The head of the RIAA, Cary Sherman had this statement:
We take the concerns expressed by policy makers and others very seriously. In light of the comments we have heard, we want to go the extra mile and offer illegal file sharers an additional chance to work this out short of legal action.
Wonderful things, those letters. The RIAA can settle embarrassing lawsuits before the press gets ahold of the information regarding the targeted individuals. In the first wave of lawsuits, the targets were often made aware of their status by the press, who had access to the filings before the individuals targeted did. Now the RIAA has fewer worries about the story of their lawsuits being spun against them. No doubt settlements prior to lawsuit with potentially embarrassing and telegenic defendants will be confidential as a condition of the settlement. More importantly, few will know the names of the individuals actually targeted unless a lawsuit is filed, or one of the parties choose to notify the press.
Frankly, I was surprised the RIAA didn't take this tack in the first place. I had expected them to cherry pick their initial targets and go after pimply-faced anarchists or similar. Of course, if they had, I and many others would have jumped all over them for avoiding lawsuits against sympathetic individuals and there would be little else for them to do but to continue what are obviously unjust tactics (unjust even to those who consider the lawsuits legitimate) or change tactics to indiscriminate lawsuits.
Instead, the RIAA started with indiscriminate lawsuits, and has now chosen to use the tactic of discriminatory lawsuits as a "concession" to the concerns of those who weren't happy with the initial lawsuits. So, not only does the RIAA get the benefit of a tactic they probably prefer, they get praised for adopting it, according to the New York Times (reg. req.) (Record Industry Warns 204 Before Suing on Swapping):
"[Sen. Norm Coleman (R - MN)] certainly thinks it's [the warning letters] a step in the right direction, and wishes it had happened sooner." He [a spokesman for Coleman] added, "He wishes it hadn't taken a hearing to get it to happen."
Perhaps the RIAA isn't clever like a fox; they're clever like a rabbit ... a Brer Rabbit.
Researchers at Nottingham and Sussex have developed a fascinating research project, Dynamo, which they call "a communal multiuser interactive surface." The basic idea is to create a device that will allow for easy collaboration and sharing of files in real space environments such as bars, airports and other ad-hoc meeting places. What is particularly interesting about the virtual space of Dynamo is that several individuals can use it simultaneously, and easily share information from their digital cameras, cell phones, hand helds, etc. While many aspects of the concept have been seen previously, Dynamo has a unique combination of attributes. It may not be what the future holds, but it certainly is an interesting step towards the future.
Read the research paper (Dynamo: A public interactive surface supporting the cooperative sharing and exchange of media [PDF]).
via ZeroPaid
Everybody's been talking about the advent of iTunes for Windows, but what does Microsoft have to say? Nothing good, apparently, (Q&A: Choosing a Digital Music Service for Windows Users):
iTunes captured some early media interest with their store on the Mac, but I think the Windows platform will be a significant challenge for them. Unless Apple decides to make radical changes to their service model, a Windows-based version of iTunes will still remain a closed system, where iPod owners cannot access content from other services. Additionally, users of iTunes are limited to music from Apple's Music Store.
As I mentioned earlier, this [iTunes' closed system] is a drawback for Windows users, who expect choice in music services, choice in devices, and choice in music from a wide-variety of music services to burn to a CD or put on a portable device. Lastly, if you use Apple's music store along with iTunes, you don't have the ability of using the over 40 different Windows Media-compatible portable music devices.
I especially like the last sentence:
When I'm paying for music, I want to know that I have choices today and in the future.
There is an interesting (for lawyers anyway) point about downloading being discussed on My Shingle (Disbarment for Downloads?) and the New York Lawyer's Word/Life Wisdom column (I like to download music from from Napster-type Web sites. If I am ever sued for this, do I risk disbarment or any other type of sanction from the State Bar?). Can/should lawyers be disbarred for downloading?
First, downloading isn't going to get you into trouble, it is the uploading or making available of files that is getting lawsuits going. It is rather sad that even a publication for lawyers can't make this distinction. Second, this is a much more difficult ethical question than a legal one and I think it will be rather fact dependent. For example, you might be able to sue a parent because their child is uploading files but will you disbar the parent for the actions of the child?
via the Tech Law Advisor
Pornography and P2P has been much in the news lately, as foes of P2P (such as the MPAA) attempt to smear the technology as a breeding ground for filth. See, for example a post of mine on LawMeme (Pornography Obsession on Both Sides of P2P Debate). Yesterday, as dc.internet.com reports, testimony concerning P2P and pornography was heard by the Senate Judiciary Committee (Hatch: P2Ps Are Child Porno Central). More information on the hearing and testimony can be found here (Indecent Exposure: Oversight of DOJ's Efforts to Protect Pornography's Victims).
The problem with this hearing is that some opponents of P2P and many of the reporters who publish on the issue are confusing two distinct arguments in the scatter gun attacks on P2P technology. The first argument is that child pornography is easily distributed via P2P networks (unlike the web or newsgroups, I guess). The second argument is that children have easy access to pornography via P2P networks (unlike the web or newsgroups, I guess). These are two separate problems; to conflate the two arguments is to confuse the issue, as the following quote from dc.internet.com shows:
While Wednesday's witnesses focused on Web sites featuring Internet child pornography, Judiciary Committee Chairman Orrin Hatch singled out peer-to-peer (P2P) networks as the most pernicious purveyors of online child pornography.
"I am currently considering legislative solutions to the many risks inherent in the use of peer-to-peer networks. Almost half of the people who use these networks are minors," Hatch said. "Recent studies have shown that millions and millions of pornographic files are available for downloading on these networks at any given time."
Hatch's quote has nothing to do with child pornography, but rather dealt with access to pornography by minors. There are legitimate issues to be addressed here, but we won't make any progress by confusing them.
Furdlog points to an article on private gaming servers in the Boston Globe (Using private servers, clubs keep serious players in, headaches out). For many PC games you can play via the internet, such as Battlefield 1942 and, of course, Counter-Strike, you need a server to act as a host for games. A server can either be public (anyone can come play), semiprivate (the server's managers can restrict entry), or private (only members can play). Playing on a public server is free, while semiprivate and private servers cost money to run (though the price can be spread among the members). Interestingly, fully private servers are less expensive to run than semiprivate servers.
But if playing on a public server is free, why pay money for a private server? The reason is that the public servers are full of lame-os, cheaters, flamers, etc. The public service is degraded and people are willing to pay money to ensure reliability and quality. Hmmmm ... sounds sort of like an argument I've heard before (How the Future of File-Sharing Might Be Like Sex).
Famed internet writer and thinker Clay Shirky has taken a look at the RIAA's strategy of suing uploaders and what that means for the evolution of file-sharing (File-sharing Goes Social). He concludes that the strategy (which he calls "Crush the Connectors") will work, though not as well as the RIAA would like. It won't work as well as the RIAA would want because people will withdraw into closed social networks for file-sharing that outsiders cannot penetrate.
The disadvantage of social sharing is simple -- limited membership means fewer files. The advantage is equally simple -- a socially bounded system is more effective than nothing, and safer than Kazaa.
If Kazaa, Gnutella and others are severely damaged by the Crush the Connectors attack, users will either give up free file-sharing, or switch to less efficient social spaces. This might seem like an unalloyed win for the RIAA, but for one inconvenient fact: there are more people than are songs.
Of course, I've been talking about this for quite awhile, and this is one of the reasons I advocate the Public/Private distribution distinction in copyright, see, for example a short post of mine on LawMeme (Share with Friends, Not Strangers).
Shirky notes that such private social networks would generally be fairly effective at providing access to the most popular works, but their efficiency for providing access to more obscure works would be greatly degraded (as opposed to the public file-sharing networks). Consequently, some people will defect from file-sharing to paying for content or subscriptions to content. In Shirky's words:
Reduced efficiency might send many users into online stores, and users seeking the hot new song might be willing to buy them online rather than wait for the files to arrive through social diffusion, which would effectively turn at least some of these groups into buyers clubs.
I would add that, in some ways, the mid-tier artists would benefit the most from this system, as the most popular artists' works would readily be shared but the mid-tier would most easily be reached through pay systems. So, in some sense, the most profitable artists might be those who aren't wildly popular. I think that is kind of a neat result.
Like Lawrence Solum and share with friends, not strangers, Shirky doesn't think the RIAA is likely to look upon such a model favorably:
The RIAA's reaction to such social sharing will be unpredictable. They have little incentive to seek solutions that don't try to make digital files behave like physical objects. They may therefore reason that they have little to lose by attacking social sharing systems with a vengeance.
Indeed, Mary Hodder at bIPlog is very, very (very) concerned that aggressive attacks on such networks might turn file-sharing into a version of "East Berlin in the 80's, where everyone suspected everyone else as being a spy" (Clay Shirky on File Sharing). Actually, I don't think this is terribly likely. The RIAA will have to patrol for private, social networks that go public, but there won't be a need for spies and infiltrators at parties. Instead, there will always be those who aren't terribly concerned with security and will too readily offer access to their friends' private networks in chat room and IRC channels. Crackers and script kiddies will quickly publicize systems that haven't been compromised by the RIAA, but by rather poor security decisions by members of these private darknets.
One interesting analogy would be to the social networks of sexual partners. People are careful in choosing sexual partners because there are sexual risk-takers out there who don't take precautions. When you let someone into your sexual network, you take the chance that they aren't taking the proper security precautions. File-sharing networks might end up acting similarly.
