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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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July 11, 2005

July 07, 2005

Prediction: No Lawsuit Against Slingbox

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Posted by Ernest Miller

Yesterday, the Hollywood Reporter published an article warning that the Slingbox from Sling Media (which allows you to stream video from their DVR to a computer outside the home) risks a secondary liability copyright lawsuit, just days after the decision in Grokster (Slingbox Could Spark New Lawsuits). The EFF's Fred von Lohmann also sees this as a possibility (First Post-Grokster Cold Front?). He points to the following quotes in the Hollywood Reporter article:

  • "We're hopeful Slingbox will incorporate technology that will respect copyright," said Dean Garfield, vp and director of legal affairs at MPAA. "You don't have the authority to retransmit license work without negotiation or authorization."
  • "Slingbox is one manifestation of what we assume will be a cascade of similar products that are meant to manipulate our signals in ways that we think will be harmful to the network-affiliate business, if not the law," CBS executive vp Martin Franks said.
  • "Even if you take it at face value that it is a one-to-one transmittal device, I don't think it will be very long before some hacker in Cupertino posts on the Web the way to modify it, the way they modify a TiVo, that turns it into something that can be tapped by 50 people," Franks said.
All well and good, but my prediction? No lawsuit against the Slingbox, unless it turns out to be far easier to hack it then I imagine (not that it won't be unhackable, but that it will be easily and readily hacked).

Sure, Hollywood could bring a lawsuit, but the device is simply too expensive, too difficult to use and unlikely to be any sort of threat to their revenue models despite any worries they may tell the press. Furthermore, Hollywood would very likely lose. I'm unaware of any evidence that would lead me to believe an inducement charge would be successful, even to a minimal extent. Winning a contributory lawsuit under the Sony standard would be iffy, at best.

It would also be unwise politically. Hollywood wants to control technology, but they don't want to look like they want to control technology. A lawsuit against a fairly innocuous consumer technology isn't going to look good, particularly on Capital Hill.

Does Grokster threaten innovation? Yes, but then, the Slingbox isn't all that innovative.

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Senior Fellow for Progress and Freedom Foundation Defends Comparison of Alternative Compensation Schemes to Slave Labor Prison Camps

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Posted by Ernest Miller

Yesterday, James DeLong, a senior fellow for the Progress and Freedom Foundation, wrote that "'collective licensing or a media levy' is a euphemism for turning creativity into a socialist gulag" (More Soothsaying). I characterized that statement as "grotesque hyperbole" (Senior Fellow for Progress and Freedom Foundation Compares Alternative Compensation Schemes to Forced Labor Prison Camps). Today, he defends his statement (In Defense of "Grotesque Hyperbole").

I beg to differ. A tad hyperbolic, perhaps, but not grotesquely removed from the inevitable reality.
I beg to differ. James' statement was so ridiculously over the top that, originally, I didn't think it needed any commentary, "I could say more, but James' grotesque hyperbole says enough." Apparently I was wrong.

What part of slave labor prison camp doesn't James DeLong understand? Let me turn to a recent discussion in the Washington Post of gulags by Pavel Litvinov, who was a dissident active in human rights causes in the Soviet Union and now lives in the United States (No American 'Gulag'):

The word "gulag" was a bureaucratic acronym for the main prison administration in Stalin's Soviet Union. After publication of Alexander Solzhenitsyn's "The Gulag Archipelago," it became a symbol for the system of forced-labor camps that have been an integral feature of communist countries. Millions of prisoners confined in the gulag had not been involved in violence or committed any crime -- they were there because they belonged to a "wrong" social, national or political group or expressed a "wrong" opinion. ...

There is ample reason for Amnesty to be critical of certain U.S. actions. But by using hyperbole and muddling the difference between repressive regimes and the imperfections of democracy, Amnesty's spokesmen put its authority at risk. U.S. human rights violations seem almost trifling in comparison with those committed by Cuba, South Korea, Pakistan or Saudi Arabia....

Words are important. When Amnesty spokesmen use the word "gulag" to describe U.S. human rights violations, they allow the Bush administration to dismiss justified criticism and undermine Amnesty's credibility.

At least Amnesty is referring to actual prisons, as opposed to what James DeLong considers poor public policy choices.

Returning to James' defense:

I would apply the epithet [gulag] to any system in which creators and doers must beg government functionaries for permission to exercise control of themselves, their creations, or their property, and this permission can be granted or denied whimsically, according to the functionaries' views of "the public good."
Well, gee, that pretty much characterizes most of the United States today as a slave labor prison camp in certain circumstances. Kelo, anyone? Perhaps this quote from Lewis Carroll will illustrate the difficulty with DeLong's definition here:
'When I use a word,' Humpty Dumpty said, in a rather scornful tone,' it means just what I choose it to mean, neither more nor less.'

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master - that's all.'

Litvinov is correct when he says that words are important. DeLong not only unfairly characterizes alternative compensation schemes, but trivializes the suffering of those caught up in the actual gulag.

Back to James DeLong:

Anyone who thinks this system [Fisher's alternative compensation system] will be clear of the corruptions of money, political connections, and political correctness is not living in the real world. Furthermore, anyone who thinks that such a system, even if totally pure, could effective allocate resources and produce results superior to a market needs to read about the history and economics of the 20th Century.
It's a seriously flawed policy concept. I've raised numerous objections myself:Those are most of my posts on the issue, not counting my criticisms of some of the voluntary compensation schemes that have been put forth. I yield to no one in my opposition to a compulsory licensing scheme.

But if a compulsory licensing scheme were legislated into being, I don't think that would qualify as a slave labor prison camp.

Not every reduction in freedom, even a significant one, is the same thing as a move into the horrors of the gulag archipelago.

James DeLong ends with a Kantian quote:

A classic philosophical statement says that "to will the end, you must will the means." In this case, a variation applies: If you will the means, you will the end.
Let me respond with a classic internet statement that "As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1." In this case, a variation applies: as a discussion of copyright grows longer, the probability of a comparison involving communists or Soviet gulags approaches 1.


Derek Slater has some good thoughts on this issue as well (The Real Fear Mongerers).

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July 06, 2005

Samuelson on Grokster

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Posted by Ernest Miller

Pam Samuelson weighs in on the Grokster decision in the forthcoming (Oct 2005) Communications of the Association for Computing Machinery.

Read the 7-page paper: Legally Speaking: Did MGM Really Win the Grokster Case? [PDF].

Her answer as to whether MGM actually won Grokster? Not really:

MGM didn’t really want to win Grokster on an active inducement theory. It has been so wary of this theory that it didn’t actively pursue the theory in the lower courts. What MGM really wanted in Grokster was for the Supreme Court to overturn or radically reinterpret the Sony decision and eliminate the safe harbor for technologies capable of SNIUs. MGM thought that the Supreme Court would be so shocked by the exceptionally large volume of unauthorized up- and downloading of copyrighted sound recordings and movies with the aid of p2p technologies, and so outraged by Grokster’s advertising revenues—which rise as the volume of infringing uses goes up—that it would abandon the Sony safe harbor in favor of one of the much stricter rules MGM proposed to the Court. These stricter rules would have given MGM and other copyright industry groups much greater leverage in challenging disruptive technologies, such as p2p software. Viewed in this light, MGM actually lost the case for which it was fighting. The copyright industry’s legal toolkit to challenge developers of p2p file-sharing technologies is only marginally greater now than before the Supreme Court decided the case.

Read the whole thing. You'll find that her conclusions are very similar to my conclusions in Kicking the Sony Can Down the Road.

via Constitutional Code

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Senior Fellow for Progress and Freedom Foundation Compares Alternative Compensation Schemes to Forced Labor Prison Camps

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Posted by Ernest Miller

Derek Slater justly smacks James DeLong, a senior fellow for the Progress and Freedom Foundation, for saying that "'collective licensing or a media levy' is a euphemism for turning creativity into a socialist gulag" ("'Collective Licensing or Media Levy' Is a Euphemism For Turning Creativity Into A Socialist Gulag"). James' original post here: More Soothsaying.

I could say more, but James' grotesque hyperbole says enough.

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July 05, 2005

Meta Grokster Roundup

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Posted by Ernest Miller

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July 04, 2005

July 4 Grokster Roundup

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Posted by Ernest Miller

The debate about the meaning and impact of the Grokster continues.

C.E. Petit of Scrivener's Error has collected his thoughts now that the decision is a few days old (Grokster Conclusion: Everything Old Is New Again). He focuses on illuminating the issues through the "copyright clause" of the US Constitution.

"Unjust enrichment"? Where did that sneak in? It's not anywhere in any of the opinions! So why are we considering first-year contract law? Well, the most rigorous answer is "we're not: we're considering the relationship of potential remedy to liability, and that relationship is behind virtually all of the common law." For, in the end, that is what the evidence in Grokster points toward: Use of copyright law to prevent unjust enrichment achieved through violation of an exclusive right. Absent the economic factor, it's a lot harder (not impossible, merely harder) to say that mere technology violates a conception of copyright that reads the Intellectual Property Clause as a whole. [emphasis in original]
Ron Coleman makes an interesting connection to some of Clay Shirky's writings (Marginal Thoughts).
Shirkey argues, compellingly, that a simpleminded application of the microeconomic model of marginal value to evaluating marginal content sales of the Internet doesn't, and can't, work. Now note that this has no effect on how the Grokster case should have come out, because he is really talking here about supply and demand and prospective IP regimes -- not about the application of the copyright laws based on the statutory language, stare decisis and that other dusty old stuff.
The Shirky piece he links to is Fame vs Fortune: Micropayments and Free Content.
The answer is simple: creators are not publishers, and putting the power to publish directly into their hands does not make them publishers. It makes them artists with printing presses. This matters because creative people crave attention in a way publishers do not. Prior to the internet, this didn't make much difference. The expense of publishing and distributing printed material is too great for it to be given away freely and in unlimited quantities -- even vanity press books come with a price tag. Now, however, a single individual can serve an audience in the hundreds of thousands, as a hobby, with nary a publisher in sight.
Gary Becker explains some of the difficulties in having judges decide on technology's future potential (Grokster and the Scope of Judicial Power).
But several things concern me about the issues raised by this and related court decisions. I basically do not trust the ability of judges, even those with the best of intentions and competence, to decide the economic future of an industry. Do we really want the courts determining when the fraction of the total value due to legal sales is high enough to exonerate manufacturers from contributory infringement? Neither the wisest courts nor wisest economists have enough knowledge to make that decision in a way that is likely to produce more benefits than harm. Does the fraction of legitimate value have to be higher than 50 per cent, 75 per cent, 10 per cent, or some other number? Courts should consider past trends in these percentages because new uses for say a software-legal or illegal- inevitably emerge over time as users become more familiar with its potential. Must courts have to speculate about future uses of software or other products, speculation likely to be dominated by dreams and hopes rather than firm knowledge?
Read the whole thing.

Richard Posner, who wrote the In Re Aimster decision, pushes his conception of how to decide these cases (Grokster, File Sharing, and Contributory Infringement).

There is a possible middle way that should be considered, and that is to provide a safe harbor to potential contributory infringers who take all reasonable (cost-justified) measures to prevent the use of their product or service by infringers. The measures might be joint with the copyright owners. For example, copyright owners who wanted to be able to sue for contributory infringement might be required, as a condition of being permitted to sue, to place a nonremovable electronic tag on their CDs that a computer would read, identifying the CD or a file downloaded from it as containing copyrighted material. Software producers would be excused from liability for contributory infringement if they designed their software to prevent the copying of a tagged file. This seems a preferable approach to using the judicial system to make a case by case assessment of whether to impose liability for contributory infringement on Grokster-like enterprises.
This is much easier said than done.

The New York Times writes about the fact that P2P will continue to be around after the decision (The Imps of File Sharing May Lose in Court, but They Are Winning in the Marketplace). Nothing particularly new here.


This post from Marginal Revolution is from June 27th, but definitely something I should have linked to earlier (Why Economists Should Feel Conflicted About the Grokster Ruling).

The bottom line: The welfare economics of music do not resemble those of bread or buttons. Right now we do not even know whether music is being oversupplied or undersupplied, relative to an optimum. Beware of any analysis of this case which does not consider these deeper underlying issues.
Read the whole thing.

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July 03, 2005

July 02, 2005

Thanks, JD

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Posted by Ernest Miller

I just wanted to thank JD Lasica for dropping by this week (good timing!) as part of his Blogger Book Tour for Darknet: Hollywood's War Against the Digital Generation. A quick guide to his posts:

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July 01, 2005

Eldred Begat Grokster

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Posted by Ernest Miller

Following the decision in Grokster, the Economist comes out in favor a 14-year copyright term, renewable once (Rip. Mix. Burn.). I certainly endorse shorter terms and have for some time, although I would structure it a bit differently. I don't see why there shouldn't be minimal formalities to extend copyright beyond a single year. But that's not my point. What would Grokster look like if we had a maximum 28-year copyright term?

We have to remember that currently, thanks to copyright term extension, not a whole lot of popular culture has entered the public domain since 1923. 1923! That's essentially the entire modern era as far as music and movies are concerned.

What is most interesting to me is to imagine how Grokster might have turned out differently if there had been a much shorter copyright term. For example, classic movies and music through the 1960s would have been legally shareable via these networks when they were launched. I don't have any figures, but I expect that a substantial amount of the music shared was from the 1960s, 1950s and earlier (most of the Beatles' catalog, for example, and Elvis). I also imagine that movies from this era would have been very popular as well. I don't know what the percentage might be, but I'm certain it would have made the networks look much better even to Justice Ginsburg's crew.

We also have to imagine the many mashups and remixes that would be possible with this library of music and moving pictures. Derivative works would certainly be invigorated by a much shorter copyright term and many of these works would likely be released under a Creative Commons license.

The development of the legitimate download market would probably have also benefited, as many different startups would have had access to a substantial library of works with which to entice customers. Many more companies would have entered the space, likely developing much better user interfaces. MP3 players would have come pre-loaded with many classics, greatly increasing their value proposition. Podcasts would benefit. The possibilities are limitless.

It is impossible to know what the percentages of licit and illicit materials would be in a world of original copyright terms, but we might learn a thing or two from books. After all, books have a much longer history. It would be interesting to compare the use of filesharing networks for ebooks and see what the percentages are of licit and illicit materials, since there is a much wider, more popular library of work for books. Of course, such a test wouldn't be definitive, because books are relatively nothing when it comes to bandwidth and so can't take advantage of one of the main benefits of filesharing networks. And books are substantially different from other mediums for other reasons. Nevertheless, such a study might be enlightening.

In the end, the ultimate outcome of the case might not have been any different (after all, you can induce people to infringe with a perfectly legal printing press), but we would probably have had a decision on Sony as well. I think it likely that, with a profusion of legal uses for P2P networks, at least two more justices would have shifted to Justice Breyer's concurrence.

In the many arguments surrounding Eldred v. Ashcroft, the constitutional challenge to copyright extensions for existing works, much was made of the fact that extending copyright wouldn't really encourage the creation of new works. Well, now we see some of the other costs of continual extension of copyright terms. There is collateral damage on technologies of reproduction and distribution. We know the value of this copyright extension, the proceeds of greedy rent-seeking to a small number of companies, but how to measure the cost to innovation?

And I'm not sure how well copyright law has faired thanks to term extensions.

Copyright extension is beginning to look more and more like a devil's bargain for the copyright companies. Among other things, it has probably done a whole heck of a lot to reduce respect for copyright law and encourage copyright infringement. You know, when you remove three generations of popular culture from the public domain including, essentially, two entire mediums, you're going to create tensions, not only with regard to the public at large but in law as well.

One way to look at why the Supreme Court was unable to reach agreement on a reformulation of Sony was because they were unable to reconcile the inconsistency of copyright terms that are, for nearly all intents and purposes, forever, with innovation. Of course there is going to be tension. Unless it is immediately licensed by copyright holders, any innovation in publishing and distribution is going to look illegitimate when the public domain has been so crippled.

Furthermore this tension doesn't really serve anyone, not even copyright holders (assuming they can look beyond the short-term). It increases the cost of creating legitimate businesses (which fosters illegitimate businesses), and makes it more difficult to separate the true bad actors from those whose innovations are merely caught up in the ridiculousness of our current system.

Over-extended copyright terms aren't the root of all evil in our system of copyright, but they're a key source.

via Copyfight

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June 29, 2005

Bram Cohen: My Activist's Manifesto is a Parody!

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Posted by Ernest Miller

Yesterday, I wrote about Bram Cohen's A Technological Activist's Agenda, which included quotes that look suspiciously like active inducement under Grokster (BitTorrent and Grokster: How Much Intent Does it Take?). Today, Bram has added the following text to his agenda:

[This was written in late 1999, and is a parody of a cypherpunk's manifesto, which struck me as very dishonest manifesto claiming to solely be concerned about privacy. This screed is written in the exaggerated voice of a 'prototypical' cypherpunk, making much more direct declarations of his intent.] [emphasis, links in original]
Good answer. Hopefully it'll be enough to convince a judge should a lawsuit be launched.

Prof. Mark Schultz of the Southern Illinois School of Law who is guest-blogging on Eric Goldman's Technology & Marketing Law Blog has a good reply to this issue, however: Shocking Revelations About BitTorrent.

We must avoid this "bootstrap effect" to maintain access to innovative technology. Even if Bram Cohen had "bad intent" in developing BitTorrent (I don't think he did), all subsequent distributors of BitTorrent should not be accountable for his actions or the actions of some end users. Such a distributor should be able to avoid liability, so long as substanstatial non-infringing uses are possible and the distributor does not actively induce infringment.
I agree. However, the Supreme Court seems to have left the door open to a "taint by association" for technology companies. So, if one company is found to be an active inducer, subsequent companies built on the same technology seem to have one strike against them already. And if you get one strike, the strike zone gets much bigger.

UPDATE 0715PT 30 Jun 2005

WIRED has an article on this issue (BitTorrent Whiz Extolled Piracy?).

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Day Three of the Grokster Era

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Posted by Ernest Miller

More post-Grokster commentary from around the web. This post will be updated throughout the day as I come across interesting posts.

Constitutional Code has two good articles:

Michael Madison argues that we may be at a Kuhnian paradigm shift in our understanding of innovation (Grokster and Innovation). Very interesting post.

Larry Solum on his Legal Theory Blog: Grokster and the Future of P2P.

The Grokster decision may have been a minor tactical victory for content providers, but it is a stupendous strategic loss.
Doug Lichtman is still quite pessimistic about Grokster seeing a loss all the way around: Reading Wu, Reading Grokster.

He is responding to Tim Wu: iGrokster.

Randy Picker also has some repsonses to Tim Wu: Itunes Again

Denise Howell has lots of anecdotal evidence about the use of P2P to download government docs in the couple of days since Grokster was decided (Noninfringing Torrents).

C.E. Petit on Scrivener's Error makes the case for his version of the winners and losers in Grokster: Grokster (3): Who Won?. He makes some good points but I'm not sure the "garage-mechanic-for-the-love-of-it" technologist who is a winner according to Petit is that big of a category. After all, once they invent something that is really an innovation they quickly try to move out of that category ... and shouldn't we encourage them to do so? The Grokster decision doesn't believe so, apparently.

On Further Reflection explains how the Court got the patent law of active inducement wrong (Grokster: Porting Inducement from Patent to Copyright and Adding New Bugs).

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June 28, 2005

BitTorrent and Grokster: How Much Intent Does it Take?

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Posted by Ernest Miller

Following the Grokster decision there has been a lot of speculation about whether BitTorrent would be liable under the court's enunciated active inducement standard. Many think that BitTorrent is safe, in particular due to the lack of evidence of illicit intent. But what if there is evidence of illicit intent? A statement from Cohen in 2001 might be that evidence.

Prof. Mark Schultz of the Southern Illinois School of Law is guest-blogging on Eric Goldman's Technology & Marketing Law Blog. He took two close looks at the issue. First, on the simple question of BitTorrent itself: What Happens to BitTorrent After Grokster?. In response to a question of mine, he also addressed the additional questions raised by BitTorrent Search and the new, trackerless BitTorrent: More on BitTorrent and Grokster. His conclusion was that BitTorrent is protected because of its innocent intent:

So, would Cohen and the other original BitTorrent developers be on the hook as inducers? Probably not. There appears to be no “clear expression or other affirmative steps taken to foster infringement.”
Ed Felten also sees BitTorrent as the next big test case, and also thinks they'll survive: BitTorrent: The Next Main Event.
The litmus test is BitTorrent. Here is a technology that is widely used for both infringing and non-infringing purposes, with infringement probably predominating today. And yet: It was originally created to support noninfringing sharing (of concert recordings, with permission). Its creator, Bram Cohen, seems interested only in noninfringing uses, and has said all the right things about infringement — so consistently that one can only conclude he is sincere. BitTorrent is nicely engineered, offering novel benefits to infringing and noninfringing users alike. It is available for free, so there is no infringement-based business model. In short, BitTorrent looks like a clear example of the kind of dual-use technology that ought to pass the Court’s active inducement test. [emphasis added]
Perhaps Cohen is not as sincere as all that: A Technological Activist's Agenda:
I am a technological activist. I have a political agenda. I am in favor of basic human rights: to free speech, to use any information and technology, to purchase and use recreational drugs, to enjoy and purchase so-called 'vices', to be free of intruders, and to privacy.

I further my goals with technology. I build systems to disseminate information, commit digital piracy, synthesize drugs, maintain untrusted contacts, purchase anonymously, and secure machines and homes. I release my code and writings freely, and publish all of my ideas early to make them unpatentable.

Technology is not a panacea. I refuse to work on technology to track users, analyze usage patterns, watermark information, censor, detect drug use, or eavesdrop. I am not naive enough to think any of those technologies could enable a 'compromise'.

Despite my emphasis on technology, I do not view laws as inherently evil. My goals are political ones, even if my techniques are not. The only way to fundamentally succeed is by changing existing laws. If I rejected all help from the political arena I would inevitably fail.

-Bram Cohen [emphasis added]

History of the statement: According to Wikipedia, BitTorrent debuted at CodeCon 2002 (Wikipedia: BitTorrent). According to the Internet Archive's Wayback Machine, Bram Cohen posted the page to his website sometime no later than Jul 10, 2001 (Wayback Machine: : Jan 01, 1996 - Jun 28, 2005). Originally this statement was linked from his front page (Wayback Machine: : Jan 01, 1996 - Jun 28, 2005). The link remained until at least Jul 20, 2003, but had disappeared by Jul 31, 2003. In between his homepage had been updated at least 7 times.

Question: How far will a lawsuit under the active inducement standard as articulated in Grokster go with this statement? Will this open the door to discovery? Will this make the addition of search engine (with advertisements) look like a bad act? Will it make trackerless BitTorrent look like a bad design decision?

Perhaps BitTorrent is a more difficult case than one might think.


Just thought to check something else on the Wayback Machine. The link to the "activist's agenda" shows up in the very first snapshot of the homepage on Jul 6, 2001. The very first link to the BitTorrent project shows up on Jul 20, 2001. The statement and the BitTorrent project consequently seem rather close together in time.


Just to note something from above (since I'm linking to so many Wayback Machine archives): the "activist's agenda" is still on Bram Cohen's website: A Technological Activist's Agenda.

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The Day After: Grokster Roundup

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Posted by Ernest Miller

I'm not even going to try to provide a comprehensive list of links for the Grokster decision this morning, only some I thought of particular interest. I will continue to update this post through the day, as I come across more links.

Derek Slater is on a roll over at EFF's DeepLinks:

  • What is "Inducement"?
  • Unavoidable Inducement?
    However, in some ways, the decision may make it difficult for legitimate businesses to avoid inducement.
  • Clarifying Inducement: How Is Patent Law Relevant?
    A straightforward transplant of the patent inducement doctrine might have provided technologists with some insight into what it will mean for them in the copyright context. Unfortunately, the Court's decision muddies the import of patent caselaw.
  • Clarifying Inducement: What's the Remedy?
    If past misconduct can be used to prove that present actions also amount to inducement, the potential harm to innovators would be substantial. Finding that an action from long ago amounts to inducement could open the door to claims about all subsequent activities.
I believe that the Supreme Court has effectively pre-empted Congressional action in this area for some time. C|Net News gets reaction to the decision from Congress that concurs: Congress Applauds File-Sharing Ruling. The two top proponents of the INDUCE Act in the Senate had this to say:
Patrick Leahy, the top Democrat on the Senate Judiciary Committee, said through a spokeswoman that he "is going to let the courts continue their role in reviewing the next phase of this case."

Sen. Orrin Hatch, the Utah Republican who heads an intellectual property subcommittee, said: "Prudence and respect for the role of the courts suggest Congress wait until it becomes clear how today's decision will play out in the lower courts before there is a rush to legislate."

Speaking of C|Net, their website was still hosting Grokster and StreamCast clients as of this morning. I guess they don't think the ruling could apply to them, or that they would be sued. If I were them, I might think again. Although Grokster and StreamCast were not ruled illegal, if they are, I'm not sure that C|Net can avoid liability.

C|Net executive editor Charles Cooper wants EFF to come out and say, "just once", that "Grokster's business model is predicated on breaking the law" (Theft by Any Other Name). Hey, Cooper, what do you think about a company that makes money (some of the most popular downloads on are P2P programs) from companies whose "business model is predicated on breaking the law"? Why don't you say something about that?

Tim Wu thinks the Court has made a clear distinction between illicit Grokster-type filesharing and licit filesharing.

  • The Grokster Safe Harbor?
    1. Making a deal with the recording industry (iTunes)
    2. Encryption of content offered (also iTunes)
    3. A network optimized to some other explicit purposes (Freenet, privacy and anonymity, or even email -- personal communications)
    4. Phone home technologies -- software that is montored centrally, see Randy's paper.
  • Grokster's Future
    The important question is this: how does the Grokster decision affect the future of content distribution? In my view the decision will actually settle matters more than people think. To use a Lessig term, Grokster is zoning filesharing -- as between highly illegal, highly illegitimate operations on the one hand (like WASTE and some Bittorent clients), and highly respectable, legitimate operations on the other (iTunes and the new Napster).
I disagree with Tim's analysis here. The safe harbor doesn't seem particularly safe the way he has described it. You could license, but isn't the whole point of Sony that you don't have to license? You could use encryption, though what that means for filesharing legitimate files is unknown. And, isn't the whole point of Sony that you don't have to incorporate particular copy controls? Optimization is in the eye of the beholder. How long before you can file share with Skype (a pre-eminent P2P personal communications technology)?

As a commentor on Tim's second post notes, I'm not sure why Tim thinks that WASTE necessarily runs afoul of this ruling. It is basically a handy, secure P2P application for small groups, with plenty of legitimate uses.

Randy Picker wonders if, under Tim's reading, iPods can be distinguished from iTunes: File-Sharing v. File-Distribution.

Mike Godwin has a column in Reason: Don't Stop Grokkin'.

Siva Vaidhyanathan has a column in Salon (watch an ad for access): Supreme Court's Unsound Decision.

This is why courts and legislatures should be very careful when regulating technological innovation and copyright: Broad rules and legal uncertainty can put a chill on, or even wipe out, really useful and important developments.

As Jim instructed Huckleberry Finn when Huck claimed Solomon was the wisest man who ever lived: "De 'spute warn't 'bout a half a chile, de 'spute was 'bout a whole chile; en de man dat think he kin settle a 'spute 'bout a whole chile wid a half a chile doan' know enough to come in out'n de rain."

You can comment on Siva's column on his blog, Sivacracy, here: My Grokster Article in

Why should I bother doing a roundup of traditional news sources when Frank Field has done such a great job on FurdLog?: Grokster Roundup.

Prof. Mark Schultz of the Southern Illinois School of Law is guest-blogging on Eric Goldman's Technology & Marketing Law Blog. He looks deeply at the issues surrounding BitTorrent under Grokster: What Happens to BitTorrent After Grokster?. A significant omission, however, is that he doesn't address how BitTorrent Search and trackerless BitTorrent might change the equation. I could see BitTorrent search being considered enough evidence of intent so that trackerless BitTorrent becomes evidence of bad design under this decision.

Mark Schultz responds to my query and has addressed the issues of BitTorrent Search and Trackerless BitTorrent: More on BitTorrent and Grokster. Many thanks.

Prof. Michael Madison thinks the decision could have been better, but isn't too bad: Grokster Redux.

That said, an “I’m a genuine innovator” standard is much easier for mainstream technology innovators to live with than it is for cutting edge folk or iconoclasts. My relatively sanguine disposition comes from the observation that the same pattern is observed in the fair use cases, and while that’s hardly a perfectly happy story in itself, judges handle innovation and evolution there better than we often give them credit for.

Prof. Susan Crawford has two posts on the question of balance in the decision:

  • A Balanced View
    Today's Grokster opinion is a victory for content AND for technology. I was afraid that Sony would be undermined -- and it wasn't. The content guys were afraid that they wouldn't be able to go after bad guys -- and they've been given ammunition. What we've got is an opinion that is balanced and middle-of-the-road. It leaves Sony's "substantial noninfringing use" standard alone (yes, the concurring Justices snipe back and forth about what that standard means, but that doesn't matter), it doesn't adopt any formless Aimster balancing test, and it says strongly that you can't impute intent to technology. A good day for innovation. And a good day for Congressional staff, who won't have to deal with some request for Induce legislation -- we're done.
  • Footnote 12
    I read the decision as saying that IF there is evidence of advertising AND other marketing and promotional indicia of intent, THEN failure to filter might be relevant. But failure to filter on its own (as Footnote 12 suggests) would never be enough.

    Now, of course, it's not hard to do discovery and find evidence of intent. So this gives the content industry substantial ammunition. And that's why this is a balanced opinion that doesn't completely please either side.

James DeLong, director of the Center for the Study of Digital Property at the Progress & Freedom Foundation, has a column on Tech Central Station: Grokster at Last!.
As a first resort, it is clearly better to deal with the P2P purveyors as infringement-dependent businesses rather than infringement-enabling technologies, using the standards of evidence about the proof of evil intent that the Court put forth. The exact dimension of the Sony doctrine can wait. And, given reasonable progress in the development of technological means of protection, the issue might well wait forever, eventually joining the graveyard of unsettled issues on Moot Point.
"Follow the money" has become a mantra. Well, Mark Cuban, who backed the Grokster lawsuit, follows the money and finds that no one cares: Kaboom !.
In the business world, one way to evaluate the financial importance of news is by watching to see how Wall Street responds to it. If there is the slightest glimmer of hope in a news announcement, at least one person is going to think it will have some level of impact and make a bet on the stock and/or industry impacted.

There wasnt a Kaboom, there wasnt a whisper in the market. Not one buyer or seller of stocks gave a damn. Warner Music Group. probably the only public company that is a pure play proxy for the music business traded almost exactly the same number of shares as it does every day. The stock was down a nickel.

He also looks at the practical business effects.

Ed Felten see BitTorrent as the next big test case, but thinks they'll survive: BitTorrent: The Next Main Event. I'm still concerned that the search engine and commercialization of BitTorrent may undermine the argument. We will have to see. Bram Cohen must remain purer than Caesar's wife.

bIPlog's Aaron Perzanowski claims the Court's test isn't really "active inducement": It's Not Active Inducement, Stupid

Does anyone else consider it odd that Grokster's homepage, as of Tuesday afternoon, still touts the Ninth Circuit's decision?:



Today the United States Court of Appeals for the Ninth Circuit affirmed the previous District Court ruling denying the motion picture and recording industries request to shut Grokster down.

via Mossback Culture

John Palfrey gets it right, I think: The Entrepreneur in a Post-Grokster World.

So, it’s back to the courts again. The Supreme Court’s decision places the responsibility to uphold America’s culture of entrepreneurship and innovation squarely in the hands of the lower courts to determine what the ultimate effect of its thread-the-needle ruling will be.

It’s the next few rulings, reading the tea leaves of the opinions handed down yesterday, that matters. If the next tests of the Grokster ruling turn out in favor of the entrepreneur, then the chilling effect of the Grokster opinion on innovation will hopefully be negligible.

Nice summary from David Post on the Volokh Conspiracy: Grokster Decision, Second Thoughts.

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Grokster and Open Source: Will Open Source Force the Court to Confront Sony?

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Posted by Ernest Miller

What the heck does the Grokster decision mean for open source?

I suspect that we are likely to find out.

Up to now Hollywood has been satisfied in going after the commercial purveyors of P2P filesharing software. Undoubtedly, following the Grokster decision, they will continue to do so. However, that will not halt the use of P2P programs.

As the commercial systems are shut down, it is likely that users will migrate to open source P2P projects. Indeed, a switch to various open source programs, such as BitTorrent, is already well under way. If Hollywood desires to continue to stem the tide by taking action against certain programs, they will have no choice but to go after the most popular open source projects.

Vicarious liability would not seem to be much of an issue for most open source programs. They don't directly profit from (and I doubt a court would recognize reputational benefits for this purpose) illicit filesharing and I'm unaware of any that has the right and ability to control use. Standard contributory infringement would also be relatively difficult to prove on a number of levels, assuming the device met the Sony test.

But active inducement changes things, especially as the Court was rather unclear on how it was to be applied. The problem for many open source technologies that would meet the Sony test is that they receive contributions of code from a wide variety of sources. The most well-organized projects have a vetting process so that they do not incorporate copyrighted or patented code. However, how are they to vet for intention?

When you've got a large number of people working on a filesharing project, it is likely that one of them will say things that would be evidence of inducement. Furthermore, the Court spent a great deal of time emphasizing Grokster's lineage from the original bad actor Napster. That was plenty of evidence of ill intent for the Supreme Court. How might that logic be applied to the numerous progeny of Napster in the open source world?

I really don't know. There are a number of ways that a court could potentially handle it and it would be very fact-dependent, I think.

One possibility I do see, however, is that an open source project may ultimately force the Court to confront Sony directly.

In Grokster, the Court "kicked the Sony can down the road". They didn't address what it really meant and came up with an alternative theory of liability, active inducement. Active inducement seems well-suited to bringing down many commercial projects, but it could have difficulty with open source.

Although an active inducement case would be relatively easy to bring against an open source P2P project, I believe, I could also see a Court dismissing such a claim for a variety of reasons. Such a decision would be very fact-dependent, but having dismissed active inducement, the only chance to shut down a particular project would be to find that the program failed the Sony test.

Such a case would then force the Court to make a decision about the limits of Sony.

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The Importance of ... Law and IT: MGM v. Grokster

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Posted by Ernest Miller

A new episode of my audio series, The Importance Of ... Law and IT, is up on IT Conversations.

This show, like my first one, deals with MGM v. Grokster, although this time we're not talking about some appellate court, we're talking about the Supremes (The Importance of ... Law and IT: MGM v. Grokster). Joining me for this show were two of the leading commentators on the net and elsewhere yesterday when the decision was released:

Not only do we discuss the holding in the case, we also consider the implications for publishers, software developers, hardware manufacturers, IT shops and, specifically, the outlook for BitTorrent.

Many thanks to my excellent guests.

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Kicking the Sony Can Down the Road

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Posted by Ernest Miller

It was the best of times, it was the blurst of times?!

C. Montgomery Burns

Earlier today, on the Wall Street Journal's Grokster Roundtable I stated that, "I do think this may turn out to be a significant victory for technology providers in general."

Darknet author JD Lasica, who is guest-blogging here yesterday and today, has asked me to clarify what I meant (Grokster: Theory and Practice). Well, it's been a busy day, so I couldn't answer him right away. I will do so now.

Despite claims to the contrary, neither side achieved total victory in Grokster nor did either side lose. Though the case will continue in the district court, it isn't the specific fate of Grokster and StreamCast that really matters. What matters is how this decision will effect copyright law and innovation policy generally. What will the practical impact be?

Things could have been better for innovation. A lot better, in fact. But, more importantly, they could easily have been far worse.

Basically, I think that the Supreme Court did what it felt it had to do, find against Grokster and StreamCast. However, they were unable to resolve the fundamental and underlying issues involved in applying Sony v. Universal, aka "Betamax", in the internet era and so didn't decide that aspect of the case.

Copyright guru William Patry says that the court punted (The Court Punts). I prefer to think that the Court kicked the can down the road instead. Unable to reach agreement on what is actually a fairly bad set of facts for innovation promoters, the Court has basically said to come back in a few years and we'll take another look. Since time is on the side of P2P and internet innovation, this is actually a victory for technology providers.

But more on that in a bit.

The Could Have Been Better

Let's get the bad news out of the way first.

The Court has clearly revived the "active inducement" standard for secondary liability. Note I say "revived," not "created". The active inducement test has pretty much been part of copyright law for some time. It may have been hiding in the background, or being confused with its siblings, contributory and vicarious infringement, but there it was. It even got a mention in Sony, among other places. Basically, the Court has taken it out of the background and shadows and placed it front and center.

The problem is, they could have done a much better job. "Active inducement" is a pretty good test, and one that I'm not opposed to for secondary liability. However, the Court seems to have set a fairly low and confusing bar for finding the "active" part of the inducement.

There has already been much commentary on this point. See, among others, Larry Solum, Footnote 12 in Grokster; Randy Picker, The Lurking Design Issue in Grokster; and, Ed Felten, Legality of Design Decisions, and Footnote 12 in Grokster.

Without too much detail, the Court seems to be using some sort of "taint by association" with Napster. See, Eric Goldman, Grokster Supreme Court Ruling. After all, Grokster and StreamCast actually advertised to the customers of known bad actor Napster. Based on this, all sorts of otherwise legal actions (using advertising for revenue, lack of filters) took on a sinister cast, according to the Court.

This is pretty unconvincing evidence, actually. It veers pretty darn close to turning active inducement into imputed inducement. And, if courts are allowed to run with this sort of reasoning, could be very dangerous to innovation. But I don't think it will necessarily go that far. It will likely go farther than it should, but I don't think innovation is doomed.

Remember the complex procedural posture of this case. The Supreme Court was reviewing a motion for summary judgement, but they didn't directly challenge that judgement, they used a different theory of liability then was argued. All they've basically said is that the evidence in the record is enough to beat a summary judgement on an active inducement theory that hadn't been fully briefed in the district court or court of appeals. The Supreme Court remanded, vacating the earlier judgements, but not providing an awful lot of guidance for them. That's okay.

In essence, all of the analysis of the Supreme Courts on the active inducement test is pretty darn fact specific. However, as noted, the active inducement facts were never actually argued or briefed in the lower court. The Supreme Court was basically cobbling together facts briefed for a standard contributory and vicarious liability argument, not the active inducement standard that the Supreme Court ruled on.

So, basically, we have a theory of infringement that is vary fact-specific (seemingly limited to the facts in Grokster), facts which were never properly developed in the first place, and only so far as to say that these facts beat summary judgement. What the Supreme Court said on the evidence for active inducement may act as persuasive authority but is pretty close to surplusage and dicta.

The case goes back down to the district court. The court is going to have to decide on three theories of secondary liability: contributory, vicarious and active inducement (after this new active inducement claim is properly briefed, of course).

The Supreme Court gave absolutely no guidance on vicarious liability and there is a very clear split on straight-up contributory infringement under Sony. It's not clear to me that the district court can't rule the same way on the vicarious infringement. A gutsy court could even find the same way on contributory infringement, following Justice Breyer's concurrence. However, there will be no summary judgement for Grokster and StreamCast on the issue of active inducement.

A gutsy court might send the issue of active inducement and, possibly, contributory infringement to trial. On the other hand, the district court could give summary judgement to MGM on the basis of active inducement and completely ignore contributory and vicarious infringement (hey, it worked for the Supreme Court). Here's the thing,though. A smart district court would base the active inducement on other, presumably more damaging evidence, then the Supreme Court used. There is nothing that says the district court has to use the reasoning the Supreme Court did in denying summary judgement to Grokster and StreamCast. The Supreme Court was never looking at a properly briefed active inducement motion for summary judgement in the first place. Result: the Supreme Court's ruling is followed, but the ruling is narrow in recognition of the cases' strange procedural posture.

If MGM wins summary judgement, they can't do much about it. It is not like they could appeal a ruling in their favor. They could possibly appeal a decision to send the case to trial, but the burden for overturning such a ruling would be fairly high. Furthermore, if they lost that appeal and the case went to the Supreme Court again, they'd never take it.

Of course, as I said above, it isn't the specific fate of Grokster and StreamCast that is important, it is the effect this ruling will have on other cases and for innovation in general.

More Uncertainty or Less?

There has been a lot of talk about increased uncertainty for innovators, which would increase the cost of innovation, and even suppress a substantial amount. See, among others, Fred von Lohmann, Fear Mongering. Von Lohmann is right, a great deal of uncertainty does remains and it may have even increased in certain ways.

On the other hand, it may also have decreased. Grokster, the case, will continue. Depending on how the district court handles the issues in Grokster and how other courts interpret the Supreme Court's guidance here, will make all the difference in the world. As I noted above, they'll be likely to extend liability farther than a strict active inducement standard, but I don't think they'll go too far. The Court was very clear that this was "active inducement," not "imputed inducement." They pointed very clearly to patent law. And, although patent law doesn't solve all problems, it is generally better than the test the Supreme Court created for the purposes of the Grokster ruling. Furthermore, many of the facts the Court cited can easily be limited to Grokster and, once again, they were never properly briefed under a theory of active inducement in the first place. Result: it will be the lower courts that will craft the copyright active inducement standard and they are free to narrow it as compared to the expansive example the Supreme Court provided. Conclusion: give money to EFF to convince judges to use a narrow active inducement test.

The case also acts, somewhat, as a roadmap. For bad actors, of course. See, Douglas Lichtman, Hollow Victory in Grokster. Although I have to agree with C.E. Petit that bad actors frequently are careless when it comes to smoking guns, if you look hard enough (Balanced… or Evasive?). But it will also serve as a roadmap for good actors. See, Fred von Lohmann, Supreme Court Sows Uncertainty.

Is it a perfect roadmap? No, there remain plenty of unseen pitfalls. However, it is better than no roadmap at all. I will also note that this roadmap will be much more useful to large, established corporations (that can afford expensive lawyers to help avoid liability, as well as have deep pockets to scare off some lawsuits) than smaller upstarts (that are cutting edge and lack anti-lawsuit resources). This is highly unfortunate. Highly unfortuate.

But consider whether the uncertainty today is that much worse than the uncertainty that prevailed yesterday. After all, there is also some good news. The fact that the MPAA and RIAA have won a 9-0 decision in the Supreme Court means it will be pretty hard for them to convince Congress they need the even worse INDUCE Act, or any similar legislation (even such things as the Broadcast Flag). Having the INDUCE Act and the Broadcast Flag off the table reduces uncertainty a great deal more, I think, than this relatively limited ruling by the Supreme Court.

Also consider what might have happened if the Supreme Court had ruled in favor of Grokster and StreamCast. I think it highly likely that this issue would quickly jump to the front of the queue for both judiciary committees. Hollywood might not have gotten a full-blown INDUCE Act, but they might have gotten some "compromise" that worked for major corporations such as Microsoft and Apple, but not for smaller inventors. Sometimes it is better to lose a little, than to win.

This isn't a great "active inducement" test, and too much uncertainty reigns, but it could have been much, much worse.

Time Is On Our Side

This is the key to understanding the importance of the case, I think.

The Court didn't address Sony directly. There were three in favor of a narrow reading of Sony's safe harbor that would exclude Grokster and StreamCast. Three in favor of a broad reading of Sony's safe harbor that would include Grokster and StreamCast already. And three who were apparently unconvinced of the merits of either side. A perfect three-way split.

Let's look at the two concurrences. What was most apparent to me, is that Justice Ginsburg's concurrence completely ignored discussing the issue of what "capable" means in Sony. The standard view, and the one fully endorsed by Justice Breyer's concurrence is that "capable" refers to the future ability of a technology to be used for non-infringing purposes, although its present use is primarily infringing.

While Justice Ginsburg ignores the future potential for peer-to-peer, Justice Breyer revels in it. Lior Strahilevitz argues that Grokster may have erased the future potential from Sony (Is Grokster Erasing “Capable” from Sony?). I disagree, "capable" has always been rooted in reality. I could use a gun to hammer nails, but that does not mean that a gun is "capable" of being a hammer in the sense that "capable" is used in Sony.

Capable is something more that "could potentially be used for." It is an admonition to remember that how technology is used changes over time and that, frequently, illicit uses may dominate in the early years of a technology's development. After all, it is often easier to establish illicit markets than legitimate ones. iTunes, anyone?

Extensive quotation from Justice Breyer's concurrence follows:

Here the record reveals a significant future market for noninfringing uses of Grokster-type peer-to-peer software. Such software permits the exchange of any sort of digital file -- whether that file does, or does not, contain copyrighted material. As more and more uncopyrighted information is stored in swappable form, it seems a likely inference that lawful peer-to-peer sharing will become increasingly prevalent. [citations omitted]

And that is just what is happening. Such legitimate noninfringing uses are coming to include the swapping of: research information (the initial purpose of many peer-to-peer networks); public domain films (e.g., those owned by the Prelinger Archive); historical recordings and digital educational materials (e.g., those stored on the Internet Archive); digital photos (OurPictures, for example, is starting a P2P photo-swapping service); "shareware" and "freeware" (e.g., Linux and certain Windows software); secure licensed music and movie files (Intent MediaWorks, for example, protects licensed content sent across P2P networks); news broadcasts past and present (the BBC Creative Archive lets users "rip, mix and share the BBC"); user-created audio and video files (including "podcasts" that may be distributed through P2P software); and all manner of free "open content" works collected by Creative Commons (one can search for Creative Commons material on StreamCast). [citations omitted] I can find nothing in the record that suggests that this course of events will not continue to flow naturally as a consequence of the character of the software taken together with the foreseeable development of the Internet and of information technology.

There may be other now-unforeseen noninfringing uses that develop for peer-to-peer software, just as the home-video rental industry (unmentioned in Sony) developed for the VCR. But the foreseeable development of such uses, when taken together with an estimated 10% noninfringing material, is sufficient to meet Sony's standard. And while Sony considered the record following a trial, there are no facts asserted by MGM in its summary judgment filings that lead me to believe the outcome after a trial here could be any different. The lower courts reached the same conclusion.

This is a ringing endorsement of the progress of technology and, in particular, of P2P. Justice Breyer has swallowed the P2P Kool-Aid.

Here's the thing. So have I. I believe that P2P technologies have all sorts of wonderful non-infringing uses. I believe that P2P technologies will increasingly be used for these non-infringing uses and become embedded in our work and play. We'll all be making phone calls via P2P, playing games, watching TV, sharing our varied creations. I believe that five years from now the idea of living without P2P will be about as attractive as the idea of living without the internet today.

And five years is a pretty good timeframe, because it will realistically be five years, at least, before the Supreme Court decides to take another crack at Sony. By then the industry will have matured. Microsoft and Apple themselves will be deeply involved in distributing lots and lots of perfectly legal content via P2P. The content industries will have to have made further adjustments of their business plans, further legitimizing the industry. The industry itself will have more credibility and respect, and perhaps more importantly, a heck of a lot more jobs will be on the line.

When that happens, the Court will no more be interested in ruling against these technologies then they would be in taking VCR's out of people's bedrooms, or eliminating entire swaths of US industry. More importantly, Justice Breyer's concurrence will have been vindicated.

So, even if some new technology that isn't yet an itch in some programmer's head is what is being challenged, Justice Breyer's concurrence is likely to be the one that sets the path for the next Sony decision.

A lot of people talk about the potential of P2P, but I believe it. And so do three justices, apparently. If we're right, we're going to win five-ten years down the road.

So, go ahead and kick the can. Time is on our side.

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June 27, 2005

Some Notes on Grokster

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Posted by Ernest Miller

Below are just a few my observations about the decision, in no particular order.

Vicarious Infringement

Vicarious infringement is a rather messy little and unclear doctrine. It could seriously use some clarity. The question was before the Court, but they refused to address it (footnote 9):

In the present case MGM has argued a vicarious liability theory, which allows imposition of liability when the defendant profits directly from the infringement and has a right and ability to supervise the direct infringer, even if the defendant initially lacks knowledge of the infringement. Because we resolve the case based on an inducement theory, there is no need to analyze separately MGM's vicarious liability theory. [citations omitted]
Well, if they had analyzed the vicarious infringement liability and found that the lower courts had erred, they wouldn't have had to reach the question of inducement. It isn't as if questions about vicarious liability will be going away. Interestingly, neither concurrence even mentions vicarious liablity.

Evidence of Intent?

The evidence for Grokster/StreamCast's intent is pretty darn weak:

[p. 20] Grokster distributed an electronic newsletter containing links to articles promoting its software's ability to access popular copyrighted music.
What does this mean? If the New York Times profiles your product and mentions its infringing uses you can't cite that article?

The same could be said about this "evidence" of intent:

And anyone whose Napster or free file-sharing searches turned up a link to Grokster would have understood Grokster to be offering the same file-sharing ability as Napster, and to the same people who probably used Napster for infringing downloads...
Huh? Grokster was available on the original Napster and this makes Grokster liable? What free software wasn't and isn't available on P2P filesharing networks whether legal or illegal?

Three Main Indicators of Intent: The First is Bogus and the Next Two Bootstrap Off the First

The opinion emphasizes three main factors as "clear" evidence of intent. However, the first makes little sense and the next two are otherwise legal actions that only become evidence of intent if there is already evidence of intent.

The first is advertising aimed at Napster users.

First, each company showed itself to be aiming to satisfy a known source of demand for copyright infringement, the market comprising former Napster users. StreamCast's internal documents made constant reference to Napster, it initially distributed its Morpheus software through an OpenNap program compatible with Napster, it advertised its OpenNap program to Napster users, and its Morpheus software functions as Napster did except that it could be used to distribute more kinds of files, including copyrighted movies and software programs. Grokster's name is apparently derived from Napster, it too initially offered an OpenNap program, its software's function is likewise comparable to Napster's, and it attempted to divert queries for Napster onto its own Web site. Grokster and StreamCast's efforts to supply services to former Napster users, deprived of a mechanism to copy and distribute what were overwhelmingly infringing files, indicate a principal, if not exclusive, intent on the part of each to bring about infringement.
Of course, this is limited by the fact that future creators will avoid such a thing, but why should it be considered "evidence" in the first place. After all, there is one company that is uneqivocally going after former Napster users, Napster itself. Why is it that Grokster cannot go after former Napster users, but Napster 2.0 can? Is it the technology? But I thought inducement was about intent, and not the tools.

This brings up the point I raised on the Wall Street Journal's Grokster Roundtable:

Imagine that Sony had been a nefarious group of active inducers when they brought out their Betamax. Suppose that there was ample evidence that Sony fully intended and explicitly encouraged Betamax users to infringe copyright with their videotape recorder (ads, internal emails, business plans). Consequently, under this standard, sales of the Betamax were shut down. What happens when VHS comes along? What will the makers of VHS have to do in order to avoid liability thanks to the bad actions of Sony?
Should VHS be punished for going after the Betamax market? It would have been hard for VHS not to go after the Betamax market, that's where the buyers of VCRs are. As I asked in the roundtable, "What would StreamCast and Grokster have to have done in order to avoid liability for following in the footsteps of bad actor Napster? What will the next developer of P2P have to do if Grokster and StreamCast are found liable in the lower court?" This decision leaves the issue fairly uncertain.

Next, the infamous, footnote 12 and questions of design. First the paragraph it is attached to:

Second, this evidence of unlawful objective is given added significance by MGM?s showing that neither company attempted to develop filtering tools or other mechanisms to diminish the infringing activity using their software. While the Ninth Circuit treated the defendants'failure to develop such tools as irrelevant because they lacked an independent duty to monitor their users' activity, we think this evidence underscores Grokster's and StreamCast's intentional facilitation of their users? infringement.
And, footnote 12, itself:
Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony safe harbor.
What the heck does this mean? No one seems to know. Rather contradictory, actually.

Honestly, this doesn't make a lot of sense. Imagine the VCR scenario again. Imagine that Sony was a bunch of infringement inducing scum with the Betamax. Now, the VHS standard comes along and they seem to be going after the Betamax market (sort of hard to avoid, actually). Suddenly, it is evidence of illicit intent that the VHS was built without broadcast flag technology?

I suppose it will end up turning on how big one thinks the Sony safe harbor actually is. The Court really punted this one.

The bootstrapping continues:

Third, there is a further complement to the direct evidence of unlawful objective. It is useful to recall that StreamCast and Grokster make money by selling advertising space, by directing ads to the screens of computers employing their software. As the record shows, the more the software is used, the more ads are sent out and the greater the advertising revenue becomes. Since the extent of the software's use determines the gain to the distributors, the commercial sense of their enterprise turns on high-volume use, which the record shows is infringing. This evidence alone would not justify an inference of unlawful intent, but viewed in the context of the entire record its import is clear.
"[I]ts import is clear?" Clear? I think not.

The Supreme Court points to three main reasons by Grokster and Streamcast intend infringement. The first is that they went after Napster's users. That's pretty darn weak evidence by itself. Everyone wanted to capture Napster's market, legitimate and illegitimate services alike. Why do you think Napster 2.0 is still around? The Court then boostraps this weak evidence into turning what the Court admits would be otherwise lawful conduct, into evidence of illicit intent.

So, bascally, the Court has said that you don't have to design your software to avoid infringement. Feel free to earn advertising revenues (gee, thanks), but once you pass some unknown threshold of intent (what? an internal email, an ambiguous advertisement, what?), these two otherwise lawful acts will be held against you. Apparently, the Court wants a balancing test of some sort. How this is balanced is going to be key. I almost want some terribly incriminating statements from Grokster and StreamCast to be entered into evidence in the district court, as they're doomed at its best that we don't get a narrow reading of Sony in the context of this threshold for intent argument.

The conclusion of the opinion is a bit defensive of this argument, I think:

If liability for inducing infringement is ultimately found, it will not be on the basis of presuming or imputing fault, but from inferring a patently illegal objective from statements and actions showing what that objective was.
One man's imputing is another man's inferring, presumably.

Ginsburg's Concurrence

The less said about the Ginsburg concurrence the better. I think, though, that the concurrence is fairly limited to the facts developed in this particular case and to a record that wasn't fully developed through trial. Furthermore, there is very little explanation of what "capable" means in Sony. The concurrence seems firmly rooted in a fixed timeframe and reflects Justice Kennedy's questions about free riding on copyrighted works to get a technology off the ground.

Breyer's Concurrence

Ah, sweet reason, three Justices who get it. Here, there is a discussion of what capable means, revealing a view of technology that develops over time.

Here the record reveals a significant future market for noninfringing uses of Grokster-type peer-to-peer software. Such software permits the exchange of any sort of digital file -- whether that file does, or does not, contain copyrighted material. As more and more uncopyrighted information is stored in swappable form, it seems a likely inference that lawful peer-to-peer sharing will become increasingly prevalent. [citations omitted]

And that is just what is happening. Such legitimate noninfringing uses are coming to include the swapping of: research information (the initial purpose of many peer-to-peer networks); public domain films (e.g., those owned by the Prelinger Archive); historical recordings and digital educational materials (e.g., those stored on the Internet Archive); digital photos (OurPictures, for example, is starting a P2P photo-swapping service); "shareware" and "freeware" (e.g., Linux and certain Windows software); secure licensed music and movie files (Intent MediaWorks, for example, protects licensed content sent across P2P networks); news broadcasts past and present (the BBC Creative Archive lets users "rip, mix and share the BBC"); user-created audio and video files (including "podcasts" that may be distributed through P2P software); and all manner of free "open content" works collected by Creative Commons (one can search for Creative Commons material on StreamCast). [citations omitted] I can find nothing in the record that suggests that this course of events will not continue to flow naturally as a consequence of the character of the software taken together with the foreseeable development of the Internet and of information technology.

That's what I'm talking about!

I would continue to cite from it, but I would end up copying the whole thing. I imagine that it will become one of the most popular concurrences written, cited for its wisdom and insight into issues of innovation and the promises of communications technology. Its a great foundation, anyway.


Welcome Instapundit readers! If you've made it this far, you obviously are very interested in the Grokster decision. Here are some more links:

I live-blogged the two main, opposing press conferences on the decision today:
Notes on the RIAA / MPAA Press Conference
Notes on the Pro-Grokster Press Conference

Lots of links and analysis here:
Grokster Loses - Unanimously - Inducement Test?

I participated in the Wall Street Journal's Grokster Roundtable.

Darknet author JD Lasica is guest-blogging here today and has these posts:
Grokster: Theory and Practice
Grokster Open Thread: Your Views

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Questions for Podcast on Grokster Decision

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Posted by Ernest Miller

Later this afternoon, I'll be recording a podcast for IT Conversations on the Grokster decision with Denise Howell of Bag and Baggage and C. E. Petit of Scrivener's Error. Use this post to submit any questions you have about the decision or topics you'd like covered. I can't guarantee that we'll answer all of them, but I'll make an effort to see that we cover the best ones.

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Notes on RIAA and MPAA Press Conference

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Posted by Ernest Miller

I missed some of the beginning statements due to the difficulties in connecting to the conference call, but here are my notes on the RIAA/MPAA press conference. I didn't catch the names or affiliations of those providing the opening statements or answering the questions. No exact quotes, just the gist:

Parents will come home and say there is a right way and a wrong way. That is what this is all about. Today is not a panacea. It represents a new day, it is a pivot point. Those who encourage and profit from infringement will be held liable. This means the legitmate market has the ability to take off. Fans and musicians won. We want to work with P2P, embrace technology, start filtering we can enter a better digital age together.

I can't stress enough that a unanimous Supreme Court issued a victory for the rule of law. The other parties in this case created systems that were made for the purpose of facilitating copyright infringment, the taking of music and movies. Taking from the people who put their sweat into making things we enjoy. The constitution protects this, It is in the constitution because they knew we needed this incentive to create something that we might all enjoy. This is a ruling that everyone who creates music, books are entitled to protection under the Constitution. When people create a product to help people take this content, they will be liable for it. All nine justices agree with this principle.

Three fundamental points taken to the court. First, the underlying activities, the downloading of copyrighted works is simply unlawful, plain and simple. Court called it "Garden variety theft." The unanimous decision speaks to the culture. Second, it can't be right under law to build a business on the basis of taking someone's property. You can't build a business that the point is to take other people's property. Unanimously vindicated. Third, it was all about balance. In Sony, the Court sought balance between copyright and technological innovation. Court rejected that Sony was a free pass for technology. Terrific result.

Q: What does it mean for millions of American who use iPod?

A: They're doing it the right way, they're ahead of their peers. There will be more of them.

Q: It is not the technology that the Court was targeting but the business model?

A: Precisely. There is technology out there (Audible Magic, Shawn Fanning) that will make P2P part of this market.

Q: [unintelligble]

A: If you look at the last paragraph of opinion. Court ought to look at summary judgement in favor of Hollywood.

I think the same principles that lead to Grokster and StreamCast will lead to similar decisions against other providers.

Q: If you prevail in lower court, what happens?

A: We're still entitled to full range of equitable relief as well as damages. The point is to migrate this technology to a place where it works with legitimate providers. The infringing has to stop. Audible Magic, Shawn Fanning provide such technology.

A: This is a story that evolved over six years. The last couple of years we've seen the emergence of a legitimate market and clarity about what the law is. We're going to see a transition in the market place. Two years ago there was no legitimate source, today 4% of households use legitimate. That will increase.

Q: What about illegal tech dragging industry into legitimate market?

A: That is exactly backwards. Legitimate alternatives were thwarted by illegitimate options. This decision will change that climate and help legitimate thrive.

Hassle-free, reasonable cost access to content is where we're going. We can be leaders, provided it isn't for free. We can provide these options in the future.

Q: Have you addressed whether you're going to take this back to Congress and what you might do?

A: This decision was rendered today. This was a 9-0 decision, they don't agree what to have for lunch. They've agreed that our content is worthy of protection. I think it is doubtful that this will be rushed back to Congress. There will be hearings, there might be bills proposed, but unlikely anything will happen.

Q: [unintelligble]

A: In a corporate world, folks will respond to this decision and turn to legitimate avenues.

Q: [unintelligble]

A: I'm not sure I know the answer to the question, exactly what the scope of the damages will be?

Q: What about off-shore companies? Do you expect filesharing to go away?

A: No. We have a goal that is reasonable, the legitimate market place will outpace illegitimate marketplace. There will be offshore companies, but our laws have strong international enforcement. And there will be other reasons (spyware, viruses) people will want to switch.

Q: What about designing anti-piracy features up front.

A: What the court is doing is setting a commonsense standard. If you're Apple, you're fine. If you're Grokster and Streamcast, it is clear from any number of things that they are inducing, you're not going to be fine. We don't think it will be difficult to determine what is an illegitimate or legitimate business.

Q: How will you go about going about the process of the message integrated in the culture? How do you speak to the parents or their kids?

A: We are doing this right now, you report on this decision. This is an obligation that we all have. The industry, parents, teachers, Congress, AGs everyone has to do this. We need to band together, work together. We'll go wherever folks want.

Clarity is important. This ruling is about as clear as can be. The ubiquity of the internet has confused people about what is property to be protected and what is not. This decision is so precise that it should have a very powerful impact and disincentive on illegal behavior.

Q: Will there be any difficulty in establishing in district court that Grokster/StreamCast met inducement standard?

A: The opinion speaking for all nine, makes this clear. The district court should reconsider whether summary judgement should be revised. The Court's view of the evidence is that this is a powerful case.

Q: Will this have a chilling effect on new technology or innovation?

A: This will inspire new technology because it is clear about what is right and wrong. This will be a foundation for new creativity on the artists side. They can make music, write screenplays because they know they won't be stolen on the internet.

Some of our friends on the other side like to engage in fear. This is fear-mongering. To say this is a threat to innovation is a gross hyperbole.

Q: The whole Grokster/Napster mentality was payback for ripping off consumers?

A: If you think about buying single tracks, that is an improvement. The fundamental point is that you paid for the thing.

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Notes on Pro-Grokster Press Conference

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Posted by Ernest Miller

The pro-Grokster side held a press conference on the decision. Here are my notes. These aren't direct quotations, but my quick notes on what people were saying.

The audio is now avaible as an MP3: Pro-Grokster Press Conference [MP3] or Pro-Grokster Press Conference [MP3]. Watch for this to quickly jump on the filesharing nets.

  • Richard Taranto, Farr and Taranto, argued the case before the Supreme Court
    A few words, two different aspects to think about this case. What this means for the future of this litigation and how Grokster and Streamcast will fair under the remand directive. The decision is multi-faceted and the evidence burden is unclear so that it We think we will have the evidence to dispell the inference that the entertainment companies have the right to prove that there is sufficient evidence for liability. We were not in the Supreme Court of the unavailability of a theory of inducement for copyright liability.

    The second and much more important aspect of what the courts did today was to write a set of standards, the most notable feature of which is the lack of clarity. Promoting infringement and knowledge of how technology will be used. The Court has provided a very difficult roadmap to follow. We have a multi-factored standard that you can't be sure how will be applied to you. The immediate impact for technology industry will be a ... one?

  • Fred von Lohmann, Senior Staff Attorney for EFF, with Cindy Cohn
    Will unleash an era of legal uncertainty for America's innovators. When we see the evidence in District Court, Streamcast will not be held liable. There is a new theory of copyright liability. Didn't clarify Betamax, didn't clarify vicarious liability. It will take courts some time to clarify this. By focusing on intent, the Supreme Court has opened the door to see the notes of engineering meetings, marketing plans, emails of executives. This is a high burden for technology companies.
  • CEO of Streamcast
    Another hurdle for this company. We are confident that Streamcast did not go beyond the letter of the law. We look forward to our day in court. We're staying in this fight.
  • Gigi Sohn, President and Co-Founder of Public Knowledge
    I see positive things for technology companies and consumers. The court reaffirmed the basis for the Betamax case. P2p as a technology can be The court focused on affirmative acts. We will see if there is enough evidence to prove viability. Sony has been preserved. There has been a lot of debate as to whether Congress will have to act to protect Hollywood's rights. It is clear that there is no need for Congress. There is nothing that Hollywood should want or need for Congress. Technology and consumers can be somewhat optimistic about this decision.
  • VP of Technology Policy, of the Consumer Electronics Association
    Still digesting decision. Quite concerned about a new theory of liability will be harmful. Quite conscious about a very competitive world, such as companies in China and India that do no The legal clarity has decreased. The risk of litigation has increased. From a competitive point this is not a good thing. With the INDUCE Act litigation introduced in last Congress, this makes the legal landscape less clear. We seek a pro-technology, pro-innovation landscape.
  • Michael Page of Keker & Van Nest, attorney for Grokster
    Good things and bad things. Court decision to uphold Sony is a good thing. I'm disappointed that the Court didn't address vicarious liability at all. Active inducement is part of contributory infringement, but the discussion of what it means to induce leaves a number of conflicting standards. If you replace a prior p2p software that was inducing with another, you can be held liable. Conflicting signals looks to litigation. The vagueness of the court's discussion of inducement will cause problems down the road.
  • Edward Black, President and CEO of the Computer and Communications Industry Association
    We agree more time to read it all over. This is a very dangerous decision for technology and innovation. It is big victory for lawyers. Sony upheld. But if you consider Sony an umbrella and shield, it is now full of holes. Hollywood to a large extent, has achieved what it wanted.Time for them to change to new business models. We have seen a greater trend to regulatory encroachment, this is an unhealthy trend for everyone who cares about the internet. This decision does uphold the fundamental decision in Betamax.
  • Charles Baker of Porter & Hedges, representing StreamCast
    I've been representing StreamCast for sometime. We will be back before the district court, we look forward to litigate this issue. We believe very strongly that under this new standard StreamCast will not be held liable. This is a confusing new standard. This can lead to expensive litigation, a very fact intensive standard. If you think about inducing, you could be liable. This will not slow down, but only intensify litigation. It will hamper technology innnovation.
  • GC for StreamCast
    Decision seems Orwellian. Hollywood become thought police. People in their garages will have to be concerned about everything they think, everything they say to others.. have to be very Full lawyer employment outcome. Lawyers will be pulled into every aspect of business. Innovation and American public will suffer.

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Wall Street Journal Roundtable on Grokster

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Posted by Ernest Miller

The Wall Street Journal is hosting an Grokster roundtable - it open to the public (Grokster Roundtable). I will be taking part, along with these other, very distinguished participants:

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Grokster Loses - Unanimously - Inducement Test?

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Posted by Ernest Miller

via SCOTUS Blog

The Supreme Court ruled unanimously that developers of software violate federal copyright law when they provide computer users with the means to share music and movie files downloaded from the internet.
The decision when it appears. Unanimously. That's harsh.

And here's the decision (from the AP): No. 04-480, MGM Studios v. Grokster, reversed 9-0, in an opinion by Justice Souter [24-page PDF]. Justice Ginsburg concurred [8-page PDF], joined by the Chief Justice and Justice Kennedy; and Justice Breyer concurred [18-page PDF], joined by Justices Stevens and O'Connor.

From the opinion:

We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.
Active inducement it is.

Perhaps not so bad from the AP via Yahoo News! (Court: File-Sharing Services May Be Sued):

Internet file-sharing services will be held responsible if they intend for their customers to use software primarily to swap songs and movies illegally, the Supreme Court ruled Monday, rejecting warnings that the lawsuits will stunt growth of cool tech gadgets such as the next iPod.

The unanimous decision sends the case back to lower court, which had ruled in favor of file-sharing services Grokster Ltd. and StreamCast Networks Inc. on the grounds that the companies couldn't be sued. The justices said there was enough evidence of unlawful intent for the case to go to trial.....

"We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by the clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties," Justice David H. Souter wrote for the court. ...

But in Monday's ruling, Souter said lower courts could find the file-sharing services responsible by examining factors such as how companies marketed the product or whether they took easily available steps to reduce infringing uses.

"There is substantial evidence in MGM's favor on all elements of inducement," Souter wrote.

Sounds like an inducement test. How strong is it? We will have to wait for the decision to see.

UPDATED - Links to Discussion Continuously, throughout the day

For masochists: Slashdot: Your Rights Online: Supreme Court Rules against Grokster

Public Knowledge statement from their president Gigi Sohn:

Today's Court decision in the Grokster case underscores a principle Public Knowledge has long promoted -- punish infringers, not technology. The Court has sent the case back to the trial court so that the trial process can determine whether the defendant companies intentionally encouraged infringement. What this means is, to the extent that providers of P2P technology do not intentionally encourage infringement, they are exempt from secondary liability under our copyright law. The Court also acknowledged, importantly, that there are lawful uses for peer-to-peer technology, including distribution of electronic files 'by universities, government agencies, corporations, and libraries, among others.'

The Court is clearly aware that any technology-based rule would have chilled technological innovation. That is why their decision today re-emphasized and preserved the core principle of Sony v. Universal City Studios -- that technology alone can't be the basis of copyright liability -- and focused clearly and unambiguously on whether defendants engaged in intentional acts of encouraging infringement. The Court held expressly that liability for providing a technological tool such as the Grokster file-sharing client depends on 'clear expression or other affirmative steps taken to foster infringement.' What this means is, in the absence of such clear expression or other affirmative acts fostering infringement, a company that provides peer-to-peer technology is not going to be secondarily liable under the Copyright Act.

Douglas Lichtman: Lichtman: Hollow Victory in Grokster.
He is disappointed that the Court didn't follow the liability rule that he supported, inducement can be difficult to prove.

Larry Solum makes an excellent point about the concurrences and their two very different takes on the Sony standard (Solum: The Grokster Concurrences).

More Solum: Solum: A Legal Engineering Failure.

Each of the important P2P filesharing cases has involved a failure of "legal engineering"--the legal design of the P2P business. In the Napster case, the failures were the most egregious--with "smoking gun" memos indicating that the purpose of Napster was to faciliate copyright infringement. In Grokster, the failures were almost as bad.
C.E. Petit extends Solum's point and responds to Susan Crawford: Balanced or Evasive?.

Lior Strahilevitz: Grokster and Bongs. 'nuff said.

Me, from the Wall Street Journal Grokster Roundtable

I would like to pose some questions. Imagine that Sony had been a nefarious group of active inducers when they brought out their Betamax. Suppose that there was ample evidence that Sony fully intended and explicitly encouraged Betamax users to infringe copyright with their videotape recorder (ads, internal emails, business plans). Consequently, under this standard, sales of the Betamax were shut down. What happens when VHS comes along? What will the makers of VHS have to do in order to avoid liability thanks to the bad actions of Sony? In this decision, the Court emphasizes that StreamCast and Grokster followed in the wake of Napster and wanted to capture Napster's users. But, heck, iTunes wants to capture Napster's users as well. What would StreamCast and Grokster have to have done in order to avoid liability for following in the footsteps of bad actor Napster? What will the next developer of P2P have to do if Grokster and StreamCast are found liable in the lower court?
Ed Felten, Freedom to Tinker: Business Model as Evidence of Intent and Legality of Design Decisions, and Footnote 12 in Grokster.

More attention for footnote 12 from Randy Picker: The Lurking Design Issue in Grokster.

Kathleen Sullivan has a good summary on SCOTUS Blog: Hollywood Beats Grokster But Not Silicon Valley

EFF press release: Supreme Court Ruling Will Chill Technology Innovation.

"Today the Supreme Court has unleashed a new era of legal uncertainty on America's innovators," said Fred von Lohmann, EFF's senior intellectual property attorney. "The newly announced inducement theory of copyright liability will fuel a new generation of entertainment industry lawsuits against technology companies. Perhaps more important, the threat of legal costs may lead technology companies to modify their products to please Hollywood instead of consumers."
William Patry : The Court Punts. Must reading, of course.
I need as most do, more time to sort through this, but my first read through is negative. We have two very different visions, Ginsburg's camp, which focuse more on what the hard evidence is now, and Breyer's, which focuses on the promise of technology, with three votes uncommitted to either camp. Regardless of whose side you favor, that kind of split is not helpful.

Hilary Rosen in the Huffington Post: The Wisdom of the Court , Part 2.

But knowing we were right legally really still isn't the same thing as being right in the real world. We had that euphoria with the first Napster decision. I hope my former colleagues remember that.
Derek Slater on DeepLinks: What is Inducement?.
Indeed, the Court harped on the companies' mere decision to market to Napster users. Because some Napster users infringed, advertising themselves as new Napsters indicated "a principal, if not exclusive, intent on the part of each [company] to bring about infringement." Even use of the -ster suffix drew the Court's ire. (Friendster, you're on notice.)
Yeah, this is a real problem. You have to remember that the technology in Grokster is substantially dissimilar. Yet, by aiming for the same market as the original Napster, they get in trouble. What of the new Napster, which even retains the same name?

Rebecca Tushnet on SCOTUS Blog: More Questions than Answers.

This leads into my big questions: What would this opinion really have meant for the VCR? Would “See any TV show you want to, anytime you want to see it” or “build a library” count as enough obvious encouragement of librarying – which was not found to be fair use – to justify a finding of contributory infringement? (I’m still looking for a copy of the “build a library” ad, unfortunately.) What about “any TV show” in the context of pay cable, which again was not analyzed as fair use when the Court looked at time-shifting free broadcast TV?
See the question I asked above, as well. Tushnet is more concerned about this decision than I am. I don't think SourceForge needs to worry too much. But there are others who will.

Eric Goldman has an excellent summary: Grokster Supreme Court Ruling. Really good stuff.

Fred von Lohmann discusses points he made before the decision and how they apply after the decision: Supreme Court Sows Uncertainty.

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Where I'll Be Reading About Grokster and Brand X

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Posted by Ernest Miller

Where I'll be reading about the decision:

This post will be updated ...

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June 26, 2005

More Pre-Grokster Commentary

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Posted by Ernest Miller

The pre-Grokster commentary continues. Boy will I be glad when we finally get a decision.

Hilary Rosen weighs in from the Huffington Post, arguing that the marketplace is where the issue will really be settled: The Supreme Wisdom of Not Relying on the Court:

This is a big case with lots of money poured into it from all sides. It is said that the Supreme Court’s decision will be one of the most important copyright cases ever on the books. I think it has all the makings of being famous for another reason. Because while the victory of whoever wins maybe important psychologically, it just won’t really matter in the marketplace.
The article is also interesting in that Rosen now self-identifies as a consumer. As if. And, yes, the marketplace will create a solution, but the law creates the marketplace. Does Rosen think the marketplace would be the same no matter the decision?

Chris Nolan looks at the meta-commentary in eWeek (Preparing for the Grokster Watershed). No matter what the decision, the lawyers and lobbyists win as the case will move from the judiciary to the legislature.

The fight to change copyright law isn't going to be cheap, short or sweet for anyone.

Scrivener's Error continues to get a jump on the competition (Another Advanced Note on Grokster).

Another change in rhetoric that I'd prefer to see is eliminating the purported distinction between contributory and vicarious copyright infringement; instead, I prefer the term "indirect", which is less inflammatory, more accurate. and a better description of the general class of behavior without getting bogged down into questions of "fault." Copyright is, after all, a strict liability statute; importing fault into it should concern only the remedy (or perhaps highly limited defenses), not liability. However, that would require a wholesale rewriting of the law of indirect infringement by Congress, which Congress explicitly refused to do when adopting the DMCA. [emphasis in original]
For post-Grokster commentary see here: Grokster Loses - Unanimously - Inducement Test?.

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June 25, 2005

June 24, 2005

June 23, 2005

FTC Report on P2P Workshop

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Posted by Ernest Miller

The FTC has finally released a report on a p2p workshop held back in December, 2004. Read the 51-page report (FTC Staff Workshop Report: Peer-to-Peer File-Sharing Technology: Consumer Protection and Competition Issues [PDF]). I've only looked at the conclusions, but it sounds like a balanced, non-alarmist report. A couple of conclusions of note. First, the FTC doesn't want to take any action until Grokster is decided:

Because the United States Supreme Court’s decision this summer in Metro-Goldwyn Mayer Studios v. Grokster, Ltd., likely will clarify the legal framework applicable to P2P file sharing and may have a profound effect on the future structure and impact of P2P file-sharing programs, FTC staff does not believe that it would be prudent at this time to make specific recommendations regarding the intellectual property issues raised by P2P file sharing. [footnote omitted]
Well, it's a good thing they released the report today ... next week that conclusion would have looked a little funny. But it also means that the FTC will want another workshop or similar (as well as some time for Grokster to take effect) before making any major moves.

The other conclusion that is important is the one that really makes p2p programs part of the FTC's baliwick - whether they trick customers in various ways. The FTC isn't convinced p2p is a special problem.

Many of these risks to consumers are not unique to P2P file sharing, but also exist when consumers engage in other Internet-related activities such as surfing websites, downloading software, and using e-mail or instant messaging. Workshop participants submitted little empirical evidence concerning whether the risks arising from P2P file sharing are greater than, equal to, or less than these risks from other Internet-related activities.
via Constitutional Code

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June 22, 2005

June 21, 2005

June 20, 2005

Entire Recording Industry Prepares Concerted Response to Grokster Decision

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Posted by Ernest Miller

Missed this last week, but apparently every CEO in the music industry's various associations was in Napa Valley last week to organize a concerted response to the imminent Grokster decision (BusinessWire | Music Organizations' Leadership Gathers for Industry-Wide Discussions).

Yesterday, the leaders of key music organizations completed a two-day CEO retreat focused on issues confronting the industry as well as strategies to ensure a healthy future for the U.S. music community.

A first-of-its-kind conclave, the retreat brought together the top leaders of virtually every component of the music industry to engage and share information and perspectives on issues of the day. A broad range of topics was discussed, and the impending Grokster Supreme Court decision and concerns regarding music piracy figured prominently and engendered great cooperation and unity of purpose.

Entertainment attorney John Frankenheimer, who served as the moderator/facilitator for the retreat, stated: "It is clear that there is commonality of interests across a broad series of issues within the industry. This was an invaluable opportunity for the music industry's leadership to candidly exchange ideas and perspectives and identify common ground."

Organizations whose leaders attended were: The Recording Academy(R), Recording Industry Association of America, The Songwriters Guild of America, American Federation of Television and Radio Artists, American Association for Independent Music, American Federation of Musicians, Church Music Publishers Association Action Fund, Gospel Music Association, Harry Fox Agency, National Association of Recording Merchandisers, National Music Publishers' Association, Recording Artists' Coalition, R&B Foundation, SESAC, and SoundExchange.

A commitment was made both to future meetings and continued cooperative effort.

Digital Music News has a bit more (Top Music Executives Convene Ahead of Supreme Court Ruling).

Obviously a press blitz is on order, but I wonder what sort of legislative shenanigans (both federal and state) they're planning.

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No Decision in Grokster, Brand X Today

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Posted by Ernest Miller

So, there I was, sitting in hot standby to blog the heck out of decisions in Grokster and/or the Brand X case, but the Supreme Court has held those decisions once again. From SCOTUS Blog (Court Decides Six "Second Tier" Cases):

The Supreme Court, on a day on which it issued six decisions, released none of the major controversies still to be decided -- the Ten Commandments displays cases, music and movie downloading and copyright, government seizures of private property for private re-development, and access to cable companies' broadband lines for high-speed Internet connections.

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June 19, 2005

June 17, 2005

June 16, 2005

Record Companies Intend to Make Criminals of Us All

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Posted by Ernest Miller

Pennsylvania's Times-Leader republishes a Mercury News report on the increasing use of DRM for audio CDs by the major labels (Music Industry Eyes 'Casual Piracy'). What disturbs me is the way that the music industry is now framing the argument:

The music industry considers the seemingly innocuous act of duplicating a music CD for someone else "casual piracy," a practice that surpasses Internet file-sharing as the single largest source of unauthorized music distribution. After fits and starts, the industry's largest players are taking measures to place curbs on copying.
Note especially that "casual piracy" is supposedly even worse than internet copyright infringement. Gee, if Congress has to pass laws against P2P filesharing services, what sort of laws will be necessary to stop what will likely soon be called "the greatest threat the music industry has ever faced"?

Instead of focusing their efforts on unrestricted public distribution via P2P networks, the record labels are poising themselves for an attack on copying/sharing among family members and friends. This doesn't seem to me a wise way to attempt to set copynorms. I've long supported the idea of "sharing with friends, not strangers" as a way to reinforce reasonable copynorms. See, Larry Solum, Copynorms and Nesson's Koan.

People want to share music with their friends and family and they see nothing wrong in doing this. In trying to characterize such sharing as criminal activity the recording industry will only be undermining support for copyright as a whole (To Save Copyright We Must Reform It):

The RIAA has taken the strategically foolish position that all filesharing is wrong. To most people outside of the ABA's IP bar, such an uncompromising approach to all filesharing is clearly incorrect. Most people believe that some sharing (particularly with friends or family) is legitimate, but other sharing is not. To the extent that the RIAA is not willing to compromise its position on filesharing, people will increasingly reject the idea that any filesharing is wrong. This is not a healthy development for those who believe that copyright is worth saving. The only way to save copyright is to reform it.
But that is precisely what the recording industry seems intent on accomplishing:
For consumers, it signals an abrupt change to the rip, mix, burn mania embodied by the 2001 Apple Computer ad campaign promoting the first iMac computer with a CD burner and software for creating custom music CDs. These new copy-protected discs limit the number of times people can create copies of music CDs or add individual songs to music mixes.
An "abrupt change", indeed. The music industry doesn't seem to understand that it is unencumbered MP3s that are filling the iPods of the world (21 iTunes per iPod).
"You can do with the CD you bought what you do with it if you're within the realm of personal use," said Thomas Hesse, Sony BMG's president of global digital business. "You can burn a copy that you play in your car or a copy that your son plays in his bedroom or make a personal mix. That's fine. That's the way people listen to music these days. If you attempt to burn 20 copies and distribute them to the kids who come to your son's birthday party, that's not possible."
Um, no. Please, three copies? That's not going to cut it, even if it is only for personal use. I've owned 3 MP3 players alone (and I'm not a guy who spends a lot of money on gadgets). I burn new mix CD-Rs (whatever I'm into at the time) whenever I plan an extended road trip. I sometimes make mix CDs with a sampling of music I think is cool for friends, just to turn them on to something new. And I'm hardly some sort of music power user.

You know, by the way, that I bought that music expecting it to be available to me for several more decades. You think the "burn track seven times" is all I'm going to need for those decades?

All this DRM will accomplish is to encourage people to bypass it, to download the inevitable DRM circumvention devices. They might be illegal, but they'll be available on the internet. Or, it will encourage people to use P2P programs to download the music they've already purchased. And, once they're on the filesharing network, why not download a few songs they haven't purchased? After all, if the record companies are going to make life hard for them with regard to music they've actually spent money on, they might rationalize that they've earned some free music.

In other words, record labels will only succeed in encouraging disrespect for copyright law. Thanks a lot, you bunch of short-sighted morons.

via EEJD

Comments (4) + TrackBacks (0) | Category: Digital Rights Management | File Sharing

Macrovision's Magical DRM that Drastically Reduces P2P Distribution

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Posted by Ernest Miller

Well, my last two posts have been about Macrovision's copy-protection, this one might as well be too. See, Macrovision Invokes DMCA for Analog Copy-Protection Technology and Mark Cuban Has Questions About the Macrovision DMCA Lawsuit.

Anyway, the copy-protection scheme that Macrovision provides for DVD players is called Analog Content Protection. Macrovision claims that,

Macrovision ACP prevents or distorts copies of DVDs made over an analog interface to DVD recorders, PCs, digital video recorders (like TiVo, ReplayTV and Media Center PCs), in addition to D-VHS recorders (DVRs) and VCRs. By preventing copying onto digital devices, Macrovision ACP dramatically reduces the digital sharing of this content, including sharing among PCs, DVRs, and over peer-to-peer networks.
When you don't want to call something a lie, you might use the phraseology, "it is, at best, highly misleading."

Well, the above claim by Macrovision is, at best, highly misleading. At best, Macrovision prevents some users from uploading new files onto filesharing networks. It reduces this initial dispersion of the files. Unfortunately, that is a pretty high cost for very low return: Speed Bumps on Your Car.

In this next paragraph, Macrovision demonstrates excellent use of qualifiers and half-truths. I shall annotate.

Macrovision ACP is the world’s leading device-to-device analog content protection system [Thank you, 17 USC 1201(k), which mandated use of the technology], protecting over 4.5 billion DVDs for Hollywood and other rights owners since the format’s introduction [Protecting them from what? The internet? Commercial infringers? It is interesting that they protect "DVDs" and not "copyrighted works"]. Macrovision ACP closes the analog hole on nearly every DVD player, DVD recorder, PC, and digital video recorder. [Nearly. In a world where reproduction is effortless, "nearly" doesn't count for much.] It is supported through a worldwide ecosystem which includes extensive licensing to PC, CE and IC manufacturers. [Why does Macrovision act as if legal mandates aren't the real reason for this extensive licensing, like they did it themselves or something?] In support of this worldwide content protection ecosystem, Macrovision has developed industry-accepted test and certification facilities used to support proper functioning of ACP on nearly all manufacturer’s DVD players, drives, and recorders prior to market release. [There's that "nearly" again.]
Gosh these guys are good. No wonder they got Congress to mandate their technology.

Comments (0) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management | File Sharing

June 15, 2005

Pre-Grokster Decision Spin

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Posted by Ernest Miller

The Grokster decision is expected any day now (well, not any day, Mondays are preferred), but the post-decision spin is already beginning. The MPAA's CEO, Dan Glickman, is already making with the "opponents of copyright maximalism are communists" schtick (Glickman Presses 'Protections'):

"Shall we keep in place legal protections that promote the free market, or shall we tear down those protections in such a way as to allow the black market to prosper and dominate?" he asked. "If we have learned anything over the past 50 years with the collapse of communism and the triumph of free-market capitalism, we have learned that abusing private property rights actually leads to less creativity, less technological development and less freedom."
It is particularly hilarious how the former Democrat attempts to sway the Republican-controlled Congress:
With that in mind, Glickman sought to associate the studios' cause with former president Ronald Reagan, a one-time Hollywood figure who remains highly popular among the Republican leadership that controls the levers of power on Capitol Hill.

"I was a great admirer of Ronald Reagan when he was president, and I was a [Democratic] member of Congress from Kansas," Glickman said. "In fact, I often voted with him, which made the leaders in my own party very unhappy."

Glickman noted that he and Reagan enjoyed careers in both Hollywood and politics.

Another group that is trying to take advantage of the Grokster decision are those pushing a particular commercial solution (Why Grokster Case Is A Marketing Dream):
Snocap is not alone in mugging for the camera as file sharing's day of reckoning approaches. Across the country in Virginia Beach, Va., Wayne Rosso is hoping to announce the first record-label partner and the test-phase launch for his new legitimate file-sharing service, Mashboxx, which is based on the Snocap system. In terms of the publicity he can generate for the news as a result of the Supreme Court ruling, "it's going to be like shooting fish in a barrel," he says.

Mr. Rosso has an added advantage: He is the former chief executive of Grokster Inc., the defendant in the case. "My phone rings off the hook every time a justice sneezes," he says. At those moments, Mr. Rosso leans back in his leather reclining chair, puts his feet up and starts dishing out the juicy quotes journalists came to expect from him while the Grokster case wound its way through the courts.

Yeah. Thanks.

via GrafoDexia

Comments (0) + TrackBacks (0) | Category: File Sharing

21 iTunes per iPod

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Posted by Ernest Miller

Downhill Battle provides a very telling number in the copyfight: there have been 60 million iTunes sold and 2.9 million iPods, which means there are on average, to a rough approximation, 21 iTunes per iPod (iTunes per iPod). As the page points out, this is is only 0.7% of the capacity of a 3,000 song iPod. Where are the rest of those songs coming from?

This is a point I've made before (Why the ala Carte Music Model is Doomed).

It costs $499 to buy a new 40G iPod.
It costs $10,730 to fill it with songs purchased online at 99 cents each.
The solution? Voluntary Collective Licensing. Downhill Battle endorses EFF's proposal: A Better Way Forward: Voluntary Collective Licensing of Music File Sharing. I mostly agree with it, but have a number of criticisms: Thoughts on the EFF P2P Solution White Paper.

via BoingBoing

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June 13, 2005

June 12, 2005

June 10, 2005

Free Riding and BitTorrent

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Posted by Ernest Miller

David Hales and Simon Patarin, both with the Dept. of Computer Science at the Univ. of Bologna in Italy, have written an interesting paper on altruism in BitTorrent and why free riding is relatively rare.

Read the 11-page paper: How to Cheat BitTorrent and Why Nobody Does [PDF].

The abstract:

The BitTorrent peer-to-peer file-sharing system attempts to build robustness to free-riding by implementing a tit-for-tat-like strategy within its protocol. It is often believed that this strategy alone is responsible for the the high-levels of cooperation found within the BitTorrent system. However, we highlight some of the weaknesses of the approach and indicate where it would be easy to cheat and free-ride. Given that cheating of this kind currently appears rare, this motivates the question: why is the system not dominated by free-riders?

We advance a hypothesis which argues that BitTorrent may resist free-riders in a way that has not been previously fully comprehended. Ironically, this process relies on what is commonly believed to be a weakness of BitTorrent - the lack of meta-data search. One consequence of this is to partition the BitTorrent network into numerous isolated swarms - often with several independent swarms for an identical file - which is one of the necessary conditions for a kind of evolutionary group selective process, a process that has been recently identified in similar simulated systems.

A further implication of the hypothesis is that, given the choice, users may choose unconditional altruism rather than the more restrictive reciprocal tit-for-tat approach as a result of the same group selective process.

Free riding is a major issue for filesharing programs, and can greatly degrade their performance. It is a vulnerability that those who wish to make filesharing networks less popular can exploit. BitTorrent has been remarkably resiliant to this so far.

This paper demonstrates how that resiliancy may not last. The authors show how it is possible to free ride on BitTorrent; it just doesn't make a lot of sense for users.

However, and this is something the paper doesn't go into, if there is an external motivation to free ride (like, I don't know, you don't want to get sued by the MPAA for uploading), then users may find it to their advantage to free ride, thus decreasing the utility of BitTorrent. Of course, if free riding does become prevalent, there are means to thwart it. However, this would probably lead to a code arms race that would likely have unintended consequences, such as a loss of privacy.

A clever copyright industry would figure out how to take advantage of this. Luckily for users of BitTorrent, that is probably not something they need to worry about.

Comments (0) + TrackBacks (0) | Category: File Sharing

EFF Issues Report on How Colleges Can Respond to Filesharing

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Posted by Ernest Miller

In certain ways, college campuses have been ground zero for the filesharing wars. College students are the ideal market for filesharing programs. Among other things, they almost certainly have a reasonably decent computer, fast internet access through the college campus, a dearth of money with which to purchase entertainment, a strong desire for entertainment, and the time to search for good files. Heck, many filesharing programs were originally designed by college students. Consequently, filesharing is very popular on college campuses.

This has caused a bit of a dilemma for college administrations and IT departments. There is, of course, the network resources that unabashed filesharing consumes. There is also the more important issue of discouraging copyright infringement while protecting the free flow of information in an academic environment. What is a college campus to do?

Enter the Electronic Frontier Foundation, with a new report that answers that question.

Read the press release: Fighting Infringement on Campus Peer-to-Peer Networks.

"The music and movie industries want schools to spy on their students and ban whole categories of computer programs from the learning environment," said EFF Staff Attorney Jason Schultz. "But there are ways to reduce infringement without undermining education and research. This paper explains what they are."
Read the report: When Push Comes to Shove: A Hype-Free Guide to Evaluating Technical Solutions to Copyright Infringement on Campus Networks.

It's a clear, concise report. Every college IT department dealing with these issues should read it.

Comments (0) + TrackBacks (0) | Category: File Sharing

June 09, 2005

Warner Offers Carrot to DVD Viewers in China

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Posted by Ernest Miller

The Los Angeles Times reports that Warner Brothers has tried something innovative to combat copyright infringement in China (Warner Gets a Jump on Film Pirates in China).

In a groundbreaking response to movie piracy, Warner Bros. Entertainment released its latest film on DVD in China the same day it debuted in U.S. theaters.

The goal for Warner is to battle rampant piracy in China by giving movie fans a legitimate alternative to bootlegs. But the boldness of Warner's action, which it took last week with no fanfare, was tempered by its choice of movie: "The Sisterhood of the Traveling Pants," a relatively low-budget film that the studio had not planned on releasing in Chinese theaters.

.... Hoping to make unauthorized copies of "Pants" less appealing outside China, Warner included no extra features on the DVD. It also added Mandarin subtitles that cannot be hidden, said Yotam Ben-Ami, an anti-piracy executive at the studio.

Yes, enforcement of copyright will always have to be part of any system of copyright. You're going to need a stick. But carrots can be even more effective sometimes.

For example, I expect that Warner will recoup more of its "losses" due to infringement from early release of the DVD then from attempting to stop the infringement in the alleys of Shanghai. They'll probably also benefit from a little good will, given that the Chinese audience won't be permitted to see the film on the big screen at all.

Now if only we could get them to try something similar here in the US. Maverick Movie Distribution, anyone?

Comments (0) + TrackBacks (0) | Category: File Sharing

June 08, 2005

June 07, 2005

I Don't Have a Clue

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Posted by Ernest Miller

Got an email from a traditional press reporter today. She wanted to know if I could handicap the Supreme Court Justices with regard to the soon-to-be-decided Grokster case. I had to respectfully decline as I am particularly bad in these Justice guessing games, particularly when the decision cuts across so many ideological lines. I did give her a list of names of people much wiser in this area than myself. I'm making no predictions for Grokster, other than it is likely to be extremely important.

Comments (1) + TrackBacks (0) | Category: Copyright | File Sharing

CDT's 'Balanced Framework' for Copyright Completely Unbalanced

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Posted by Ernest Miller

The Center for Democracy and Technology has released a report today arguing on behalf of a balanced approach to copyright enforcement, a carrot and stick (CDT Proposes Balanced Framework for Online Copyright Protection). via Constitutional Code, which has many worthwhile comments

Read the 14-page report: Protecting Copyright and Internet Values: A Balanced Path Forward: Version 1.0 – Spring 2005 [PDF].

Note: I've long favored the carrot and stick approach. See this interview with GrepLaw in September, 2003 (Ernest Miller on DRM, Privacy and Hemingway). (You know, I think my answers stand up to the test of time pretty well.)

However, I think the CDT report favors the stick a bit much, treats citizen/creators as mere consumers, doesn't consider structural reform of copyright law, and doesn't provide much in the way of a carrot, among other flaws.

Read on for a more detailed take on the report...

...continue reading.

Comments (3) + TrackBacks (0) | Category: Broadcast Flag | Copyright | Digital Millennium Copyright Act | Digital Rights Management | File Sharing | Freedom of Expression | INDUCE Act

June 05, 2005

Where Are We in the 'DVD Replacement Cycle'?

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Posted by Ernest Miller

During the 1990s, there was a boom in the sale of CDs. A significant part of this boom was due to the "CD replacement cycle," during which many people replaced their old vinyl LPs with new CDs. These were essentially freebie sales for the recording industry, which was able to make a quick buck by transitioning their back catalogs to CD. The good times couldn't last, of course, and CD sales declined, in large part because the replacement cycle ended. See, among others, BBC News (Stopping the Pop-Swappers).

So, where are we in the DVD replacement cycle? DVD has pretty much wiped out VHS and there are many who are replacing VHS libraries with DVDs, which is probably having a very nice effect on Hollywood's bottomline. Additionally, there is a big sale of back catalog stuff, particularly old television shows that were never released on VHS. Eventually, however, these good times are going to have to end. The question is, how far away is this? How big will the drop be? And, how much will the MPAA blame on copyright infringement?

Comments (0) + TrackBacks (0) | Category: File Sharing | News

Warner Music Implies iTunes and Guilty of Massive, Ongoing, Criminal Copyright Violations

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Posted by Ernest Miller

They haven't come out and said it directly, but that would appear to be what Warner Music Group is claiming according to statements they made to the music publishing company Third Story Music. I wrote about this story last week (Licensed Music May Backfire on Recording Company). Basically, Tom Wait's publishing company is suing WMG for additional royalties, since they get more for third-party licenses as opposed to sales and DRM-encumbered downloads are licensed, not sold.

However, I missed this reply from WMG:

The action says that in February, Third Story sent a formal notice questioning the accuracy of royalty statements to WMG. The music company replied in March that downloads "are sold to customers such as iTunes and just as physical product is sold to...Best Buy and Virgin."
Whoa nellie! If WMG is merely selling the equivalent of physical product to iTunes and, that doesn't give iTunes and the right to make additional copies and distribute them (for sale no less!) via the internet. Heck, the music industry is quite clear in its position that there is no first sale doctrine for digitally downloaded goods, so even that won't protect iTunes and

If WMG's claim is true (and they should know, shouldn't they?), this is the biggest case of blatant, willful, criminal copyright infringement I've ever heard of. Someone should call the Feds.

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

June 04, 2005

June 03, 2005

Sharing With Friends, Not Strangers

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Posted by Ernest Miller

I often talk about a copynorm that I support and think should be explicitly legal, sharing with friends, not strangers. I support private distribution as opposed to public distribution. Well, here is a report from PSFK on the type of sharing I think should be encouraged (Face To Face P2P).

Maybe it’s out of fear of prosecution for illegal downloads or maybe it’s to avoid tech-imposed exile but there may be a different type of music sharing on the rise. Recently while hanging out in a Salt Lake City coffee spot, some University of Utah students were spotted having a “face to face” music sharing session. Instead of a digital gathering with countless unseen strangers, about half a dozen students got together for one of their regular swap sessions. Each person was responsible for bringing a couple of cd’s they thought the others might like or might benefit from exposure to. The music ranged from the Zombies to David Bowie and even a random Billy Joel disc. Each person also carried the discs they had borrowed from other members last time.

The group took turns talking about the new music they brought and some spoke about the new music they had been exposed to. One or two also distributed burned copies of the most popular cd’s from past gatherings. Another key element seemed to be an overt attempt to be fair about grabbing the most potentially desirable discs from the collective stack. Participants who had gotten really interesting things last time passed up the current potential best items so others had a chance.

Now, in this case, such swapping is perfectly legal under the first sale doctrine. But I'm not so sure it would be all that bad or different if they were ripping copies.

via Mobile Technology Weblog

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Licensed Music May Backfire on Recording Company

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Posted by Ernest Miller

Furdlog is on a roll today. Among other things, he notes the clever legal argument that the publishing company that has the rights to publish musician Tom Waits' music is making in a lawsuit against Warner Music Group. According to a Reuters wirestory on Yahoo! News, Waits' publishing company is suing WMG for not paying enough royalties on downloaded music (Publisher sues Warner Music over Waits tunes).

According to the suit, under the terms of the two contracts, Waits was entitled to royalties of either 25% or 50% from revenues derived from third-party licenses. Third Story maintains that digital music downloads constitute a form of third-party license, and that Waits is entitled to payment at that level.
You see, when you download music from a service like iTunes, or similar, you don't actually "own" the music. You only "license" the music.
In 2003-04 royalty statements to Third Story, WMG computed royalties from Waits' digital download sales at the same (and much lower) rate as royalties from the sale of physical product. Under the terms of the '70s Asylum contracts regarding album sales, Waits would be entitled to either 9% or 13% of the 67 cents received by WMG from each 99-cent download.
I'm a big fan of ownership (Rental Nation Deja Vu). Too bad the recording companies don't believe in it.

Of course, they'll just ensure that all future contracts close this possible loophole.

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

June 02, 2005

Rush Limbaugh to Launch Podcast on June 3rd - No Music Though

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Posted by Ernest Miller

Rush Limbaugh starts his podcast tomorrow, Friday, June 3rd (El Rushbo Answers Your Podcast Questions). The shows will be available approximately 2 hours after the broadcast ends. In order to get the RSS feed, however, you'll need to be a subscriber to the website which costs ~$60. [Correction: A commentor says the cost is $34.95] Perhaps he might want to consider a teaser 5-10 minute daily show excerpt that is free.

Interestingly, Rush explains to his listeners that he can't include any music in the show due to licensing issues:

Now, a number of people -- and you people know who you are -- you are writing me caustic and vicious notes about the fact there will be no music on these MP3s. We will not be able to download with you the theme song, the opening theme. No parodies will be downloadable. We might be able to get away with the bumper music because it's only ten to 15 seconds; it would qualify under fair use, but many of you are saying, "Well, I don't think you know what you're talking about." Right. I don't know what I'm talking about. I run the show and I don't know what I'm talking about. "You don't what you're talking about. Other shows, other shows have MP3s, download, music on them. You can do it." Ladies and gentlemen, (ahem) there's a little bit of a difference between this show and some others -- and that difference is size. Let me tell you why we can't. Really a lot of people are writing me, "Why can't we get the music? I don't understand! The parodies are some of the greatest…" The reason is the music industry is forbidding, unless an exorbitant fee is paid, you cannot essentially copy music for nothing, and that's what would be happening here. If we put the music like the theme song and we put these parodies which are based on existing copyrights that we don't own... You know, we can parody them here on the radio, but that's a one-time usage, but if we then distribute that and allow virtually our MP3 files for all that to be copied we are essentially giving away somebody's product. And it would be one day, and the music industry would be all over us for doing it and we would have to stop it or fight them or whatever, and we couldn't win. We looked into it.

You know, we pay a rights fee every year for the opening theme song, but it does not include the privilege of copying it hundreds of thousands of times for free so that people can have it on their computers. We don't have that license. The same thing goes with the parodies. Now, if other shows are doing it, it means they're either ignorant of the law or they're small enough they don't think they'll get caught or they're small enough that they don't think it will be a big deal if the music industry notices. I don't have that luxury -- and besides, folks, I'm not going to break the law anyway. There's no point in it. Now, at some point I expect this to change. I don't know when, but there will be a way to make this happen at some point. But for now, starting out tomorrow, the legalities are clear -- and if you understand that it's nothing more than copying songs and distributing them for free. You can't do that yourself for your own computer. You can't do it with movies legally. You can't do it with any video legally, but as an individual if you do it, if you get caught, you've seen the FBI warnings on the front of these DVDs that you go out and rent or buy. You get caught, I'm not they're going to come after you. The music industry is dead serious. Hollywood is dead serious about piracy and unauthorized duplication, and that's essentially what we would be doing. So the short answer is our mammoth size makes it impossible for us to do this on a stealth basis like some of these others are apparently able to do because they've been doing it along or either nobody knows or nobody cares. I don't have that luxury.

I wonder if Rush would be interested in using music that has the appropriate Creative Commons license?

In any case, if this is successful I can imagine quite a few other radio personalities will jump on it. It could also open up the market for others. We shall see.

Comments (3) + TrackBacks (0) | Category: Broadcatching/Podcasting | Copyright | File Sharing

Judge Patel Dismisses One Direct Infringement Theory, But Napster Investment Case Continues

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Posted by Ernest Miller

Yesterday, Judge Patel issued her order regarding a motion for summary judgement in the Napster investors case. The defendants are being sued for investing in and controlling the original Napster, and thus are claimed to be liable for secondary (some would say tertiary) copyright infringement.

The motion essentially argued that the plaintiff record companies had failed to make a case of direct infringement, which would mean they could not make a case for secondary liability. The court dismissed one argument for direct infringement, that the index hosted by Napster was, itself, directly infringing as an offer to distribute.

The other arguments, that uploading and downloading by Napster users violated federal copyright law as well as various common law state copyright claims with regard to pre-1972 sound recordings, were not dismissed. However, the court did not rule that there was direct infringement, only that there were material facts in dispute as to whether plaintiffs had demonstrated direct infringement by Napster users, which is enough to beat a motion for summary judgement.

Read the 16-page decision: Capitol Records v. Bertelsmann, Memorandum & Order, Re: Defendant's Motion for Summary Judgement [PDF].

Defendants’ summary judgment motion focuses primarily on plaintiffs’ third theory of direct infringement. As noted above, this theory posits that Napster itself directly infringed plaintiffs’ distribution rights by maintaining a centralized indexing system listing the file names of all MP3-formatted music files available on the Napster network.
This is the theory the court shoots down. The case the plaintiffs most relied upon was Hotaling v. Church of Jesus Christ of Latter-Day Saints, which found that libraries which had infringing copies of a work in their collection violated the distribution right when there was evidence of indexing (the infringing copy was listed in the card catalog), but there was no evidence that anyone had actually checked out the particular work. The court found a pertinent distinction:
The instant plaintiffs seize upon the cataloging or indexing system in Hotaling and argue that Napster’s “indexing” system is akin to that in Hotaling. There is, however, more to Hotaling than that. In that case the library had a copy of the copyrighted work in its “collection”. Napster did not have works in its “collection”; it did not have a “collection” of recordings. The infringing works never resided on the Napster system. Instead, plaintiffs here seek to establish copyright infringement based on the mere fact that the names of their copyrighted musical compositions and sound recordings appeared in Napster’s index of available files. This might constitute evidence that the listed works were available to Napster users, but it is certainly not conclusive proof that the songs identified in the index were actually uploaded onto the network in a manner that would be equivalent to the way in which the genealogical materials at issue in Hotaling were copied and distributed to the church’s branch libraries.
The court also notes that the suggestion in Hotaling "that a mere offer to distribute a copyrighted work gives rise to liability under section 106(3) ... is contrary to the weight of [the] above-cited authorities" (see the case for the various cites) and is also inconsistent with the text and history of the Copyright Act of 1976. Judge Patel also dismisses reliance upon the Artists’ Rights and Theft Prevention Act of 2005, similar to her dismissal of a similar argument in an earlier ruling (Judge Patel Shoots Down Notion That the Right of Distribution Includes "Making Available"). The court's conclusion on this count:
Applying this standard to the case at bar, it is apparent that plaintiffs’ “indexing” theory falls well short of meeting the requirements for establishing direct copyright infringement. Rather than requiring proof of the actual dissemination of a copyrighted work or an offer to distribute that work for the purpose of its further distribution or public performance, plaintiffs’ theory is premised on the assumption that any offer to distribute a copyrighted work violates section 106(3). This is not sufficient to satisfy plaintiffs’ burden of proving that Napster or its users directly infringed their copyrighted musical compositions and sound recordings, as they must do if they are to hold defendants secondarily liable for that infringement. Accordingly, the court holds that defendants are entitled to summary judgment on this issue.
A minor victory for the investors, but the case will go on.

via Silicon Valley Media Law Blog

Comments (3) + TrackBacks (0) | Category: Copyright | File Sharing

June 01, 2005

Rental Nation Deja Vu

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Posted by Ernest Miller

Derek Slater notes that the music subscription service, Rhapsody, sometimes has particular tracks available and other times, not (Rhapsody's Incredible Shrinking Catalog).

I had been listening to the album for a few weeks, when, today, I noticed that I can no longer play "URAQT" off the Universal release, and that the single version is only available for sale and not for streaming. Same goes for "Bucky Done Gone", though I can play it off the Beggar's Banquet release. What gives?
Well, this seems to be a problem for the subscription services. Joe Gratz had the same problem a year ago (The Danger of Subscription Music Services). My comment on Gratz's experience here: No Guarantees with Content Subscriptions.

I'm still rather concerned about a world in which we can lose access to content at any time (Rental Nation). Under subscription services, everyone will have access to everything, until someone decides that no one will have access. With all our history of groups that have aimed to destroy various elements of culture at one time or another, I have to worry about a system that will allow works to be taken away from nearly everyone with a keystroke.

In a previous post I discussed Slater's concept of leakage (The Benefits of Copyright Leakage). Leakage can also protect elements of culture from being disappeared.

Ownership is and will remain an important element of freedom.

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The Benefits of Copyright Leakage

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Posted by Ernest Miller

Derek Slater responds to my post on lawsuits against filesharers at UCLA (Whiny Bruins Have a Point) and expands upon one of the points I make regarding the RIAA's responsibility for the success of the original Napster (Ernest on Lawsuits and Leakage). Slater argues that "leaks" in copyright (whether infringing or not), can perform a positive role in creating competition and driving innovation.

With respect to this constructive role, it's also worth setting it within the context of a broader viewpoint about copyright: a leaky copyright can be a good copyright. That's not just the case in file-sharing. It's a crucial aspect of fair use. Allowing copying and copying technologies ultimately can help create new markets for copyrighted works, provide people with greater access, more flexibility and more enjoyment in how they use copyrighted works, and in total improve social welfare. If the screws of copyright were tighter, if it did not leak in this way, we wouldn't benefit from the flood of benefits from various copying technologies.
Absolutely. Textbook publishers may not like used bookstores, but they function to keep the cost of textbooks at least somewhat in check. Thank you, first sale doctrine!

So, copyright "leaks," even illicit leaks such as much filesharing, can have a positive effect. The rise of P2P likely pushed members of the RIAA to adopt legitimate filesharing much sooner then they otherwise would have. But Slater asks, however, how far should we acknowledge/tolerate this positive effect of filesharing? "Perhaps a part of the reconcilition is a sense that, whatever may have been the meritorious effects of file-sharing during Napster's birth, now competition in legitimate services can become good enough that it's time to call off the dogs."

Well, blatant copyright infringement was never cool. Yet, I don't think that were filesharing to go away, copyright would be in balance. For example, I'm a big fan of eliminating the right of reproduction and focusing on the public/private distribution distinction; "share with friends, not strangers." Part of my argument in favor of the public/private distribution distinction as the focus of copyright law is that it provides a clear means for "leaks." If the RIAA keeps music prices too high, people will engage in more private distribution. When prices are reasonable, there will be less private distribution.

Similarly, I think that the DMCA shifts the balance for leaks in ways that are counterproductive.

I will continue to counsel against infringing public distribution via filesharing systems. Yet, I don't believe that there can be true reconciliation until copyright law is better balanced.

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

Hollywood Could Help Fight Child Porn, But They Don't

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Posted by Ernest Miller

The Dallas Morning News (reg. req.) runs a story that insinuates that P2P companies could stop child porn on their networks but are reluctant to do so because then they would also be able to stop copyright infringement (Child Porn Tests File-Share Firms). In other words, these companies are scumbags unwilling to fight child porn so they can profit from infringement. Subtext, the Supreme Court should rule against them in Grokster to protect us from child porn:

File-sharing companies could find ways to block known illegal files before they're sent, said Detective Greg Dugger, a member of the Dallas Police Department's Internet Crimes Against Children unit.

But then they'd probably have to do the same thing for copyrighted works, and they'd lose their users instantly, he said.

"If one of these clients does the right thing, they'll probably be out of business the next day," he said.

A Supreme Court ruling in favor of entertainment companies could be the way to make P2P companies aggressive about policing their own networks, Mr. Burbach said.

But if the court rules in favor of P2P firms, the industry may have to prove it's no haven for pedophiles, said Rick Wallace, a full-time student in Illinois.

His Web site,, tracks the ways consumers make themselves vulnerable through P2P software.

"At a certain point, when you have children being exploited on networks the way they are, something's got to give," he said.

I'm not even going to get into whether filtering would actually work. The facts of the matter seem too confusing for law enforcement:
Police who specialize in child porn cases consider P2P networks dangerous because they can disseminate information to many people very quickly.

The P2P networks also give users the misguided impression that they're completely anonymous.

Most popular P2P programs don't have a central repository of data tracking which users are sharing specific material.

Even so, it's possible, with the right tools, to identify P2P users.

Entertainment companies have developed and bought tools that can identify the Internet addresses of P2P users.

Law enforcement agencies have more limited budgets, but they're reviewing similar options.

Let's see, P2P networks give users the false impression of anonymity. Doesn't this mean it will be much easier to identify who is sharing child porn? Why would you want to change this impression? If you make P2P illegal or have obvious tracking, the child pornographers will only move to distribution means that are harder to track. Police should be thanking P2P companies for making it easier to catch child pornographers.

And why the focus on what P2P companies can do? It is Hollywood that has the tools to track file-sharing; they've sued over 10,000 people. So, why don't police ask Hollywood to help them fight child porn? Why isn't Hollywood sharing this technology? Seems to me that Hollywood could fight child porn if they wanted, so how come they're not?

File-sharing networks are one of many places on the Internet where pedophiles lurk.

They also transmit their images through chat rooms, newsgroups, e-mail and even Web pages. "You can find them just going through Google," Mr. Burbach [Texas deputy attorney general] said.

Hmmm. Why aren't they asking for ISPs to run filters to identify child porn files? Seems if you really wanted to stop all these methods, there is only one place to go: the ISP. Of course, if an ISP started filtering everything for child porn, it is likely they would lose their users instantly. So, clearly, ISPs are unwilling to fight child porn in order to maintain their profits.

But then, it is politically more acceptable to bash P2P companies rather than large well-financed ISPs.

UPDATE 0700PT 2 JUN 2005
The author of the article responds in the comments below.

Comments (7) + TrackBacks (0) | Category: File Sharing | Rating and Filtering

More on MPAA-Funded Police Surveillance Cameras

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Posted by Ernest Miller

The Big Picture thinks that the MPAA helping the LA Police by paying for the installation of 10 surveillance cameras (MPAA Paying for Police Surveillance Cameras in LA) is a good idea (MPAA Does the Heavy Lifting RIAA Refused to Do).

I'm all for the MPAA and RIAA expending more of their efforts on combatting criminal counterfeiting. However, I really question whether surveillance cameras are the best way to do it. At best they will merely disperse the criminal activity to other locations.

It is interesting that this method is compared to methods for fighting drug sales. "Similar surveillance systems in city parks have dramatically reduced drug sales." They have reduced drug sales in city parks. Furthermore, like drug sales, stopping criminal counterfeiting is not about arresting the street dealers, but about doing the difficult and costly investigations that will allow the criminal rings to be broken. I'm not sure how surveillance cameras really help to do that.

UPDATE 2025 PT - The Big Picture responds below in the comments.

Comments (2) + TrackBacks (0) | Category: File Sharing

May 31, 2005

Whiny Bruins Have a Point

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Posted by Ernest Miller

UCLA Law Professor Stephen Bainbridge spanks the editorial board of UCLA's Daily Bruin just like Trojan Football has spanked Bruin Football their last 6 meetings (Aww, the Poor Babies).

I suspect the basic problem is that you're still just deeply narcissistic. Nobody's ever told you no. Not your parents. Not your schools. Nobody. You've been taught to expect a slap on the wrist at most and, indeed, think you're entitled to getting off easy. So when somebody finally does hold you accountable, your delicate little psyches can't handle it.

Well, it's time to grow up.

He is responding to a Daily Bruin editorial attacking the RIAA's lawsuits, which have, for the first time, snagged seven Bruins: Punishments Don’t Fit the Crime of File Sharing.

Long time readers of this blog know that I have no real problem with the RIAA's lawsuits (though it would be nice if we could ensure they were enforcing equitably, for example, suing in zip code 90049 as elsewhere [correction: changed zip code to neighborhood I actually mean to refer to]). Unless you go with some government-mandated licensing scheme (something I oppose in favor of voluntary licensing schemes), lawsuits are going to have to play an element in maintaining the system. Without lawsuits or the threat of lawsuits, enforcement would crumble.

Moreover, deterrence is going to require that the penalties be serious and will likely greatly outweigh the actual losses. In other words, If you're infringing 100 albums, in order to deter, the civil penalty is going to have to be greater than $1,000 - $2,000, which is what the albums would have cost had you simply bought them.

Nevertheless, the students, despite their narcissism, have a point. The current statutory penalties are far in excess of what deterrence would council. When the minimum statutory damages for typical filesharing cases are in the hundreds of thousands of dollars, that doesn't really seem particularly reasonable to me. I believe that deterrence can be served by a lesser amount.

Furthermore, while I oppose copyright infringement via filesharing services and council against it, the students do have a point about the music industry doing more to fight it with incentives for legitimate purchases than merely punishing filesharing. Originally, the movie studios priced videotapes at $70-$100+. They didn't believe there was a market for consumers to buy videotapes. Had they continued that pricing policy, they would have encouraged the creation of a thriving black market in infringing videotapes. Such a market may be regretted, but would have been the expected outcome. Similarly, the RIAA is partially at fault for making the original Napster so attractive because there were no real legitimate avenues to meet customer's wants. I'm not saying they're entirely at fault, but anyone could have predicted that without legitimate avenues to download music, more people would use illegitimate avenues. This is not rationalization, not justification, merely acknowledging the facts.

Does the RIAA have a legal right to rely solely on deterrance through punishment? Sure. Is this the smartest move they can make? No.

Comments (4) + TrackBacks (0) | Category: Copyright | File Sharing

May 30, 2005

Let Howard Stern Pick Your Music

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Posted by Ernest Miller

Rex Hammock continues his series on "How Apple will change everything about Podcasting" with post #2 (How Much Could Howard Stern Make Podcasting via iTunes vs. Broadcasting via Sirius?). In this post he bashes micropayments and looks at business models in which podcasters act as buying agents for their listeners, providing them with music and getting a kickback (ahem, commission) from the fees the listeners pay. A very interesting model, whose basic idea I like. However, the current economics of paying for downloaded music ($0.99/track) make this most likely a non-starter.

At that price, how many tracks will I buy a month? Not many, perhaps a dozen or so. How will I allocate my buying agents, knowing that every bad choice they make essentially costs me a dollar? Not sure I'd be too experimental in such a case.

However, drop the price substantially and this starts to look much better. Might this not work with a voluntary alternative compensation scheme as well? Lower prices for higher volume?

Things to consider.

Comments (1) + TrackBacks (0) | Category: Broadcatching/Podcasting | File Sharing

May 29, 2005

Darknet Interviews Andy Wolfe, Fomer CTO of ReplayTV

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Posted by Ernest Miller

Over on Darknet, JD Lasica interviews Andy Wolfe, formerly CTO of ReplayTV (Interview: Andy Wolfe, former CTO, ReplayTV). The interview is incredibly good. Highly recommended: Read the whole thing. A small sample:

That’s why we were amazed there was such rigamarole around this. We sold 60,000 of these things. ATI sells a million cards a year that lets you record shows and attach it to your email. They still do. Sony sued us, but they let you record stuff on your Vaio and burn it to DVD and email it to anyone. AOL lets you attach a show to Instant Messaging. It’s amazingly hypocritical, with these companies and their software that are out there and can do all this stuff on the PC, they took it for granted, but when we came up with this device that ordinary people could use, they panicked. [emphasis in original]
Alright, I can't resist, another sample:
We did a marketing study and found that two things were in high demand: porn, and Bollywood, because Indian films are not widely distributed in the U.S.

That’s part of why this whole thing got a little threatening. We think that if there was a real service, that independent content would become an important part of that service. We didn’t think people would sign up for a service if it only had independent content. They’ll sign up for Harry Potter or Terminator 3. It’s the blockbusters that get people’s attention.

We got a call from churches who wanted to distribute their sermons on Sunday mornings by sending videos around. There are also surveillance applications. We found lots of people who were interested in building new things on top of this. We felt these other things would follow, but the entertainment had to drive it. [emphasis in original]

For all you atheists and non-church-goers out there, if you're not familiar with how churches are using this technology, I suggest you go check it out. Many of them are really quite savvy.

Did I mention you should read the whole thing?

PS: The interview was conducted in June, 2003.

Comments (2) + TrackBacks (0) | Category: Broadcatching/Podcasting | File Sharing | Tools

May 27, 2005

May 26, 2005

Has BitTorrent Made a Major PR Blunder by Adding Search?

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Posted by Ernest Miller

Joe Gratz makes a couple of good points regarding BitTorrent's addition of search capability (BitTorrent Opens Search Engine). However, I think this point may be the more important one:

Until this point, Cohen [developer of BitTorrent technology] has been able to say — and has said, repeatedly — that BitTorrent is just a tool for distributing large files, and that he doesn’t really know or care about the uses to which it’s being put. Cohen as the maker of a general-purpose data distribution tool is much easier to defend, as a matter of politics and rhetoric, than Cohen as a direct facilitator of infringing downloads. This is entirely apart from any legal arguments about the Betamax doctrine; I believe that it is simply a dumb rhetorical move to have this search engine come from the same organization that developed the BitTorrent software and protocol. [emphasis in original]
If anything, Gratz may underestimate the importance of this point. The MPAA is already talking about people infringing through BitTorrent in an effort to smear the technology in the minds of the public (as well as legislators and judges). This may only ensure they succeed in tainting people's opinion of the technology.

Ed Felten is concerned about this move as well (BitTorrent Search).

Comments (0) + TrackBacks (0) | Category: File Sharing

May 25, 2005

Feds Take Down Elite Torrents, a BitTorrent Filesharing Site

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Posted by Ernest Miller

BoingBoing has pretty good coverage (though I couldn't get all of their links to work) of the Dept. of Homeland Security's takedown of the BitTorrent filesharing website, which now prominent displays a message from the government: THIS SITE HAS BEEN PERMANENTLY SHUT DOWN BY THE FEDERAL BUREAU OF INVESTIGATION AND U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (First Criminal BitTorrent Bust in USA: Elite Torrents). The statement from the government claims that

This morning, agents of the FBI and U.S. Immigration and Customs Enforcement (ICE) executed 10 search warrants across the United States against leading members of a technologically sophisticated P2P network known as Elite Torrents. Employing technology known as BitTorrent, the Elite Torrents network attracted more than 133,000 members and, in the last four months, allegedly facilitated the illegal distribution of more than 17,800 titles - including movies and software - which were downloaded 2.1 million times.
Technically sophisticated? Maybe, but it doesn't take a lot of brains to realise that running a centralized BitTorrent site for 133,000 members makes you a big and relatively easy target for enforcers, whether Feds or the MPAA. Unfortunately, there is little more that we know at this time.

As I've noted before, you infringe copyright with BitTorrent at your own risk.

CNN report: Feds Bite BitTorrent
Slashdot: Feds Shut Down Elite Torrents

Comments (0) + TrackBacks (0) | Category: File Sharing

Copyright Infringement Insurance for Filesharing: An Idea Whose Time Has Still Not Come

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Posted by Ernest Miller

Derek Slater points to a press release from p2p company RazorPop that claims similarities to Yahoo! Music and Napster and will also provide copyright infringement insurance to its users (File-Sharer Insurance? Huh?).

Read the press release: RazorPop Announces P2P Subscription Music Offering - Comprehensive Plan Protects Consumers And Can Pay Billions To Record Labels

Slater is completing finals, so he asks if anyone can fill him in. I can. It is all smoke and mirrors and a seemingly desperate attempt for attention. First off, there are no licenses from major record labels noted and it doesn't appear as if there are serious negotiations to obtain any:

RazorPop offers [emphasis added - doesn't sound like they have any deals yet] music rights holders, including labels, composers, and publishers, a percentage of the subscription revenue, similar to licensing deals that have been entered into with iTunes and other centralized online music services. An independent clearinghouse will hold and disburse licensing fees. An industry research firm will sample network downloads and allocate payments among rights holders....

The music subscription launch is predicated upon execution of licensing agreements with music industry rights holders. [I won't be holding my breath.] RazorPop is providing a simple form agreement that can be executed electronically to expedite clearances and to avoid the need for regulatory intervention that would not be in the best interests of content owners or distributors. [Ooooh, I'll bet recording companies just can't wait to fill out an easy form agreement] RazorPop will not comment on the status of in-progress confidential negotiations, but music industry receptivity has been encouraging. [I bet.]

The other interesting thing, of course, is the offer for copyright infringement liability insurance:
The music subscription service includes copyright infringement insurance. The RIAA (Recording Industry Association of America) may continue to target non-subscribing P2P users with lawsuits, and inadvertently sue RazorPop’s paying customers. The insurance will be capped at $5,000 per subscriber, which is above typical RIAA settlement amounts to date.
Who knows what the insurance covers, but the RIAA isn't the only copyright holder's group suing people. In any case, if there are licensing agreements, why would there be settlements that require insurance?

Finally, the whole idea of copyright infringement insurance is not a new idea, simply a bad one, as I explained in October 2003: Copyright Liability Insurance for File-Sharers: An Idea Whose Time Has Not Come and Copyright Liability Insurance: A Response to Dan Fingerman.


Comments (1) + TrackBacks (0) | Category: File Sharing

May 24, 2005

FOX Issuing Takedown Notices to Sith UPloaders

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Posted by Ernest Miller

Thep2pweblog reports that the 20th Century FOX film studio is issuing notice and takedown letters targeted at those using BitTorrent to acquire copies of Star Wars: Episode III: Revenge of the Sith (FOX Issuing Takedown Notices to Sith Downloaders). The notices aren't coming from FOX directly, but from the P2P monitoring company BayTSP, which is apparently authorized to send such notices on behalf of FOX.

Jason Striegel comments on BoingBoing (FOX Issuing Takedown Notices to Sith Downloaders):

I recently was forwarded a message from a concerned reader who was just served a copyright infringement notice for downloading Star Wars - Revenge of the Sith. FOX is going after small-time downloaders.
Well, if they're using BitTorrent, then they're not just downloaders are they? They are uploaders as well. That is how BitTorrent works and why it is so efficient. You might have had a centralized tracker, but even that isn't necessary anymore (Publication via BitTorrent Just Got Easier). How the heck is BayTSP supposed to figure out who is a small-time "downloader" and who isn't?

This may be essentially be for principle only (and the press it will get), but those who use BitTorrent to infringe copyright need to realize that they're not hard-to-track downloaders anymore.

Comments (1) + TrackBacks (0) | Category: File Sharing

May 23, 2005

News Reports of the Obvious: Infringing Copies of Star Wars Film Available on the Internet

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Posted by Ernest Miller

I was going to write a post about why news reports concerning the infringing copies of Star Wars: Episode III: Revenge of the Sith on the internet weren't really news (prediction: every major Hollywood blockbuster this summer will be available on the internet within 1 week of its release), but has already done a very good job covering the issue (Why All the Fuss About Star Wars Piracy?). Read the whole thing.

On a related note, Mike Godwin relates his personal experience with the real thing as well as the infringing copy (Sith Happens).

Comments (0) + TrackBacks (0) | Category: File Sharing

May 22, 2005

Publication via BitTorrent Just Got Easier

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Posted by Ernest Miller

BitTorrent goes Trackerless:

In prior versions of BitTorrent, publishing was a 3 step process. You would:
  1. Create a ".torrent" file -- a summary of your file which you can put on your blog or website
  2. Create a "tracker" for that file on your webserver so that your downloaders can find each other
  3. Create a "seed" copy of your download so that your first downloader has a place to download from
Many of you have blogs and websites, but dont have the resources to set up a tracker. In the new version, we've created an optional 'trackerless' method of publication. Anyone with a website and an Internet connection can host a BitTorrent download!

While it is called trackerless, in practice it makes every client a lightweight tracker. A clever protocol, based on a Kademlia distributed hash table or "DHT", allows clients to efficiently store and retrieve contact information for peers in a torrent.

The barriers to publication just dropped another notch. Broadcatching and Podcasting became significantly easier. And, undoubtedly, the protocol will continue to be improved.

However, I'm not so sure about C|Net News' take (BitTorrent Enemies Face New Hurdle). Um, shouldn't the fact that publishing BitTorrents has become easier be the main story? Why the focus on copyright infringement? In any case, is it really true that this is a major setback to the anti-infringement groups? After all, BitTorrent remains one of the easiest ways to track infringement and sue the users.

Seems to me that C|Net News has bought the anti-BitTorrent propaganda of the anti-filesharing forces. Thanks, C|Net.

For the rest of us, we can celebrate another tool in the arsenal of free expression.

Comments (0) + TrackBacks (0) | Category: File Sharing

May 18, 2005

Mark Cuban Forsees the (Almost) End of the RIAA

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Posted by Ernest Miller

Mark Cuban notes that, thanks to Yahoo's Music Unlimited service, the potential losses for infringement have gone way down - $600/decade of infringement (Yahoo Forces RIAA Staff Cutbacks…). Cuban makes the sensible suggestion that this should convince the RIAA to change tactics:

Will they have the sense to say…”Ok kid, you are about to get sued, which will mean we both spend money on lawyers, and then we kick your butt in court and you pay a multi-thousand dollar settlement, OR, you can sign up for any of the all you can eat music subscriptions, Rhapsody, Napster or Yahoo Music. Your choice. 5 bucks a month. Or thousands of bucks.
You know, this idea has potential. You still need to add some deterrence, and there remains the question of permanent downloads and ownership, among other things ... but there is real potential here.

More importantly, I think the concept is very marketable, that is, compelling from a public relations point of view.

Slashdot discusses: (Cuban Says RIAA Damages Should be $5 Per Month).

Comments (1) + TrackBacks (0) | Category: File Sharing

May 17, 2005

More on "Making Available" and Patel's Napster Ruling

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Posted by Ernest Miller

Prof. Eric Goldman on the Technology and Marketing Law Blog writes about Judge Patel's recent decision in the Napster investors case (New Ruling From Judge Patel in Napster Investor Suit). My post on that case here: Judge Patel Shoots Down Notion That the Right of Distribution Includes "Making Available". Read the decision: Memorandum & Order, Re: Plaintiff's Motion for Summary Judgement [PDF].

Goldman points out that a close reading of the decision indicates that Judge Patel hasn't yet determined whether 17 USC 106(3) (right of distribution) includes "making available." She has only determined that the Artists' Rights and Theft Prevention Act of 2005 didn't change the proper interpretation:

I read Judge Patel's 5/11 order as simply saying she is not going to permit the Record Companies to file the supplemental brief, because she does not believe the ART Act has changed anything as to how Section 106(3) should be interpreted. In particular, I do not see any reference to a disposition of the underlying motion for summary judgment. My conclusion, then, is that the underlying motion for summary judgment is still pending, and she has not ruled whether or not maintaining the index of downloadable files does/does not infringe the copyright owner's distribution right.
He's right.

It'll be interesting to see what Judge Patel actually rules, she may not have to reach the issue.

What is happening here is that the investor defendants are seeking summary judgement on the case by claiming that there is not sufficient proof of direct infringement by Napster's users, which means the investor defendants would not have tertiary liability.

What that means, is that the lawyers for the RIAA were bloody idiots because they didn't nail down evidence of direct infringement before launching the Napster lawsuit. It would have been almost ridiculously easy, but they didn't even bother to try, apparently.

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

Stakes in the Free Expression Business - Alternative Compensation Schemes Needn't be Free Expression

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Posted by Ernest Miller

A number of people have linked to the San Francisco Chronicle, which has published an op-ed touting government tax funded compulsory music licenses (High Stakes in the Music Business - Free Music Needn't be Stolen Music).

First, of course, is the argument that music is non-rivalrous.

On the one hand, artists, creators and distributors deserve to be paid for their work, and it's in our interest to pay them if we want anything to listen to. On the other hand, the kids understand a central fact about digital media: listening to a song, even having MP3 files on their hard drives, doesn't leave any less of it for other people to enjoy.
So, why only music? Why not all digital goods, such as film, video, and software? How come nobody talks about compulsory licenses for these other forms of media? If the important consideration is that they are non-rivalrous, why not?

The argument then moves on to an analogy with government sponsored parks and museums:

Turning to the arts, we find the British have recently reduced museum admission prices to zero. There's been no mass closing of museums, curators are not enslaved, the maintenance people still get paid for their work and paintings are bought from artists and collectors just as before, because the government pays everyone's "admission price."
But, gee, we've never had any major political tussels over the content of museums have we? Yeah, no one would ever be upset at a government-funded display of Serrano's works, or Mapplethorpe, or even of a museum display about the first use of an atomic weapon in war.

Interestingly, this potential problem in the design of such a system is never mentioned. Could it be that, like the Corporation for Public Broadcasting, politics would never, ever be a consideration in how the money is doled out and we certainly wouldn't have to worry about some version of the FCC fining or somehow censoring offensive works, right?

I wonder if the public hearings that seem to be proposed here would be at all politicized:

What makes music tricky is knowing how much to pay for which song, but it's not impossible. After all, how do we decide if we should have another park or a bigger museum? Essentially, we see how many people are using them now, ask some questions in public hearings and editorial pages, and predict: If we build more, will they come?
Monitoring is tricky, damned tricky, especially when you're talking about billions of dollars at stake. Preventing the system from being gamed and politicized (everyone download Pat Robertson's latest warble to put some $$$ in his pocket!) may not actually be possible. I certainly haven't been convinced that the government can do it without trampling on the First Amendment.

I realize this is a short op-ed, but, geez.

Comments (1) + TrackBacks (0) | Category: Copyright | File Sharing

May 12, 2005

Judge Patel Shoots Down Notion That the Right of Distribution Includes "Making Available"

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Posted by Ernest Miller

Prof. Susan Crawford brings news of an interesting twist in the Napster investment litigation (Distribution (II)). In a 4-page order, Judge Marilyn Patel dismisses an attempt by the plaintiffs to bring in a new standard for the right of distribution, "by making it available on a computer network accessible to members of the public," which was added to US Code as part of the recently signed into law Artists' Rights and Theft Prevention Act of 2005, but deals with infringement of works that have yet to be published. Read Patel's order: Memorandum & Order, Re: Plaintiff's Motion for Summary Judgement [PDF]. From the order:

If Congress wanted to make clear that the distribution right was broad enough to encompass making a work available to the public without proof of actual distribution, it is perfectly capable of doing so. Plaintiffs fails [sic] to identify anything in the legislative history of the ART Act, much less the statute itself, that suggests Congress' intent to clarify section 106(3) in such a manner. Instead, plaintiffs suggest that their "making available" interpretation of the distribution right is compelled by the fact the ART act imposes criminal liability on a class of infringing acts involving, inter alia, "the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public." ART Act § 103(a)(1)(C). Thus, according to plaintiffs, Congress must have implicitly recognized that civil liability for copyright infringement should be at least as broadly construed as the criminal offense defined by section 103(a)(1)(C).

Whatever the merits of this argument might be in the abstract, it is largely academic in light of the actual language of the ART Act, which plaintiffs conveniently disregard. That language makes clear that willful copyright infringement and "making [the infringed work] available on a computer network" are separate elements of the criminal offense defined by section 103(a)(1)(C). Thus, regardless of the manner in which a court interprets section 106(3) of the Copyright Act for the purpose of finding copyright infringement, criminal liability under the ART Act cannot be imposed unless such an act of infringement is proven beyond a reasonable doubt. This is hardly persuasive evidence of what the words of section 106(3) mean in the context of a civil copyright infringement action.

In any event, the court does not believe that the 109th Congress' views would affect the outcome of this action even if it had explicitly commented on the scope of the distribution right in the course of enacting the ART Act. The Supreme Court has repeatedly emphasized that such subsequent legislative history "is a hazardous basis for inferring the intent of an earlier Congress." [citations omitted] ... That is certainly the case here. If legislative history is to inform the court's interpretation of the Copyright Act of 1976, it must reflect the views of the members of Congress who enacted that statute into law. The opinions of members of the 109th Congress are of little, if any, relevance to such an inquiry and need not be considered seriously here.


This is very nicely and succinctly reasoned. Funny thing is, I think Congress should include "making available" as part of the distribution right. But then again, I think we should eliminate the right of reproduction all together, too. We certainly shouldn't expand the scope of the distribution right without balancing things out by narrowing or eliminating some of the other exclusive rights.

One also wishes the Judge Patel had spent a little more care with regard to the claims of direct copyright infringement in the original Napster case. Prof. Niels Schaumann does a good job of showing why the discussion wasn't sufficient: Schaumann on Direct Infringement in P2P.

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

MPAA Goes After Television BitTorrent Tracking Sites

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Posted by Ernest Miller

C|Net News reports that the MPAA has sued a number of BitTorrent sites directing people to television programs (MPAA targets TV download sites):

The latest round of suits retains a focus on BitTorrent technology, which has been widely used online to distribute movies and films.

The suits are focused on the sites that serve as traffic directors for BitTorrent swaps, rather than on individual computer users uploading and downloading content. The MPAA also has sued individuals, but has not said how many people have been targeted.

The six sites sued Thursday include ShunTV, Zonatracker [Spanish], Btefnet, Scifi-Classics, CDDVDHeaven and Bragginrights. [links added]

What took them so long? Of course, the MPAA isn't going after the people who actually make BitTorrent work, those that download/upload using the service. So, very likely, these lawsuits will ultimately be useless and have no effect.

Comments (5) + TrackBacks (0) | Category: File Sharing

Schaumann on Direct Infringement in P2P

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Posted by Ernest Miller

Prof. Niel Schaumann of William Mitchell College of Law has written an interesting paper looking closely at what sort of direct infringement P2P infringers are actually involved in (Direct Infringement on Peer-to-Peer Networks). From the abstract:

Indeed, the alleged primary infringement of P2P users seems to be an example of a phenomenon one sometimes encounters in the common law: A case finds liability, with little or no analysis. A later case also finds liability, with no independent analysis, citing the first case. A third case does the same, citing the first two cases. Before long, the principle of liability is declared to be well-settled, despite an almost complete lack of reasoning supporting the principle. The so-called RAM copy doctrine, discussed below, is a good example of this phenomenon. Direct P2P infringement seems destined to be another: While Napster, the first of the P2P cases, at least briefly discusses the basis for the direct liability of Napster's users, later cases have done little more than mention that P2P users infringe copyright, as if it were self-evident.
An important point, and while I sympathetic to much of Schaumann's article, there are a few points I am hesitant about, such as this blanket statement:
The dominant use of P2P networks is to facilitate the personal copying of recorded music, an activity that in other contexts is indisputably legal. For example, copyright law permits Joe to borrow a CD of recorded music from his friend, Sally, take it home, and copy it to a digital or analog medium for his own personal use.
The citation for this claim is 17 USC 1008, however, I don't believe that is as clear cut a claim. 17 USC 1008, which was part of the Digital Audio Home Recording Act (DAHRA), does privilege noncommercial copying, but that is only with regard to digital audio recording devices, digital audio recording mediums, analog recording devices, and analog recording mediums, such as DAT. It does not clearly apply to copying a CD to your computer hard drive, which is precisely why the RIO MP3 player was found not to violate the DAHRA. Moreover, there is the doctrine that by explicitly granting that right under DAHRA, the right didn't exist outside it, otherwise why the need for DAHRA.

Of course, I would argue that Schaumann should be right, and that personal use noncommercial copying should not be cause for infringement at all, period. Indeed, Schaumann argues that the bifurcation (DAT copying legal, MP3 copying questionable) is illogical. He's right, but since when has logic had anything to do with existing copyright law?

Schaumann's fair use arguments also seem a bit facile, that downloading is fair use:

To summarize, the copies of musical works and sound recordings made by downloading P2P users should be protected under the fair use doctrine. The first factor is neutral; the second and third weigh in favor of fair use; the fourth weighs at most only slightly against fair use.
I reproduce only his summary here, read his entire argument of course, but I'm not convinced.

Beyond my disagreements, however, Schaumann also seems to be heading in the direction of an argument that I've made time and time again. One of the key distinctions for Schaumann is between private and public distribution: "The important difference is that the Joe’s myriad internet friends make their collections of music available not only to Joe, but to anyone on the P2P network—in short, to the public." As I've said before, "share with friends, not strangers."

Schaumann also talks about the question of distribution in a bit more depth. Again, as I've said before, "it's all about the distribution." The fundamental question of copyright is not about reproductions, but the distribution of information. What does it matter if there are a bazillion copies of a work if they are not distributed? It is the distribution of information that should be the locus of copyright infringement. And, therefore, the question comes down to whether the distribution is public or private.

Schaumann's argument for consistency and precision apply in full force:

If, however, content owners want to enlist the public to help control infringement, the industries must be willing to support propositions of copyright law that make sense to the public. Intelligibility begins with consistency. Content owners, however, have tried to substitute rhetoric of “theft” and “piracy” for intelligible rules. This will surely fail. Public understanding of the rules depends on precision and consistency in determining which rights are infringed by which activities. [footnotes omitted]
Indeed. What could be simpler? Share with friends, not strangers.

via Legal Theory Blog

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May 11, 2005

Hilary Rosen Flashback

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Posted by Ernest Miller

A lot of folks have taken notice of the recent complaints by former RIAA head honcho Hilary Rosen regarding Apple's iPod DRM strategy (Hilary Rosen Laments Apple's DRM Strategy). For another example, see this post on Hit and Run: iRony.

Like my original post, however, many have concentrated on the fact that Rosen was decrying the very DRM that she had been such a strong proponent of. Let us not forget, however, that Rosen was an enemy of MP3 players all together. Indeed, let us go back to those halycon days of 1998 when the RIAA went after the Diamond Rio MP3 Player. See, RIAA Takes Stand to Protect Legitimate Online Marketplace.

If the RIAA had its way, there wouldn't be any portable MP3 players. The only portable players you would be able to buy would play only DRM restricted tunes. In her most recent article, Rosen claims that, "If you are really a geek, you can figure out how to strip the songs you might have bought from another on-line store of all identifying information so that they will go into the iPod." Not even that would be possible, legally, if she had won the lawsuit she launched against the Diamond Rio.

For a conspiratorial (though logical) take on Rosen's post, check GoldSounds (RIAA attempts to fragment online music business).

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May 09, 2005

LA Times: Feds Reluctant to Prosecute Infringing Downloaders

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Posted by Ernest Miller

The LA Times (reg. req.) reports that the Feds, although they are putting more efforts into copyright infringement investigations and prosecutions, aren't pursuing P2P downloaders particularly vigorously, if at all (Crackdown on Piracy Hits Barrier):

Backing up the threat is another matter. While federal prosecutors have made fighting piracy a top priority, to date they have been reluctant to go after the group the entertainment industry most wants targeted: people who illegally download from hugely popular online file-sharing networks.

"No U.S. attorney wants to be the guy who put a UCLA sophomore in jail for downloading Britney Spears," said George Washington University law professor Orin Kerr, a former federal high-tech crimes specialist.

Hmmm, if Hollywood is all fired up about going after downloaders, why haven't they started suing them? Why are they waiting for the Feds to jump on that grenade? Seems like Hollywood is avoiding suing the downloaders even more than the Feds.

Of course, gathering evidence of downloading is difficult. You can go after the simultaneous uploader/downloaders on BitTorrent, but it is harder to get evidence against a smart P2P leech. Still, there are ways to do it, especially for those who think they can't be caught.

Methinks Hollywood just doesn't want to handle that PR disaster.

In any case, the article is quite informative. Read the whole thing.

via thep2pweblog

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April 07, 2005

April 06, 2005

March 31, 2005

March 30, 2005

Remind Me of the Reason for the DMCA Again?

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Posted by Ernest Miller

One of the best commentaries on the oral argument in the Grokster case, which was before the Supreme Court yesterday, comes from Timothy K. Armstrong, a DC appellate attorney/Harvard LLM student. Read the whole thing: A Few Notes from the Grokster Argument.

I found this passage particularly interesting:

At least some of the Justices, Scalia in particular, seemed troubled by how an inventor would know, at the time of inventing, how its invention might be marketed in the future. How, some of the Justices asked MGM, could the inventors of the iPod (or the VCR, or the photocopier, or even the printing press) know whether they could go ahead with developing their invention? It surely would not be difficult for them to imagine that somebody might hit upon the idea of marketing their device as a tool for infringement.

MGM’s answer to this was pretty unsatisfying. They said that at the time the iPod was invented, it was clear that there were many perfectly lawful uses for it, such as ripping one’s own CD and storing it in the iPod. This was a very interesting point for them to make, not least because I would wager that there are a substantial number of people on MGM’s side of the case who don’t think that example is one bit legal. But they’ve now conceded the contrary in open court, so if they actually win this case they’ll be barred from challenging “ripping” in the future under the doctrine of judicial estoppel. [emphasis added]

We don't have the actual transcript yet, so it isn't entirely clear precisely what MGM has admitted or what sort of estoppel would apply. However, if the gist of this exchange is true, then MGM has conceding something that Hollywood has been loathe to concede and I've never, ever heard them actually concede in public, let alone in a courtroom: that format-shifting or space-shifting outside the scope of 17 USC 1008 (which basically covers DAT and cassette tape players) is a lawful activity.

Now no one ever really expected Hollywood to go after people for ripping their CDs to an MP3 player. That would be foolishness on a grand scale, since courts are likely to expressly find such actions to be legitimate fair use. So they haven't. Still, they seem to base a lot of their legal theories and rhetoric on the fact that such space-shifting is illicit, particularly with regard to DVDs.

Ignoring the DMCA for a moment, if ripping your CD to MP3s is legal fair use space-shifting, why isn't ripping your DVD to DiVX also legal fair use space-shifting? What would be the principled distinction between the two types of space-shifting? I can't imagine one.

So, remind me of the reason for the DMCA again? It doesn't stop determined infringers and mostly keeps companies from selling devices to enable all sorts of lawful uses. And, if ripping a DVD is a lawful use, how is it that copyright protection turns it into unlawful "access"?

UPDATE 1000 PT - 31 Mar 2005

Constitutional Code also addresses this concession ( MGM's Concession and the DMCRA).

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More Editorial Board Takes on Grokster

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Posted by Ernest Miller

Lots is being written about the Grokster oral argument yesterday. Copyfight is a great place to start: Supreme Court Worried About "the Guy in the Garage"; Scalia: How Can an Inventor Know How an Invention Will Be Marketed?; NYT on the Grokster Oral Arguments; and, Wait - There's More. Keep checking back for updates.

Rather than look at all the commentary, I want to look at a couple of places where some of the authors don't get it. Take, for example, Slate, which publishes a decent review of the argument but ends with this appalling analogy (Grok Around the Clock):

Here's an illuminating analogy courtesy of Judge Richard Posner, who wrote the 7th Circuit decision in Aimster: If you open a massage parlor and hire masseuses who you know are really selling sex, then you're breaking the law. Maybe you think prostitution should be legal? Try telling that to the cops.
Illuminating? Misleading is more like. The owner of the faux massage parlor will have the right (and duty) to police and inspect his employees and will likely be liable under the doctrine of respondeat superior. But Grokster doesn't have that sort of relationship with its users and that is precisely why the Ninth Circuit held them not liable for the infringements of their users.

A more apt analogy would be that everyone knows that 90% of "escort service" ads are essentially ads for prostitution, as are personals ads looking for "discreet, generous gentlemen." Clearly, such ads facilitate and materially contribute to prostitution and the newspaper owners know this. Yet the newspapers that run these ads aren't being hauled into court on pandering charges and if they were, I doubt the charges could be made to stick, unless the prosecutor could show actual knowledge as opposed to constructive knowledge.

Luckily, I think that most of the justices on the Supreme Court are more aware of the distinction than this author.

Let's just assume that in their hearts Grokster fully intends to profit from copyright infringement, they are the bad actors Hollywood says they are. The question is, on what basis do you prove it in court? How do you distinguish the bad actors from the "guy in the garage" who just thinks something is a cool new idea? That's the problem isn't it?

Not for the Washington Post's editorial board, which can, apparently, see into the hearts of bad actors (Not an iPod):

But Grokster and StreamCast are not simply technologies that can be used for good or ill; they are technologies that were designed and marketed precisely so as to facilitate theft. Both companies positioned themselves to inherit Napster's user base when the courts ordered that company to stop permitting illegal file-sharing. Both have promoted themselves based on the wide variety of materials illegally available. And both have frustrated copyright holders' efforts to police their use. A company that builds its entire business model around facilitating illegality should not be immune from liability because of the possibility of innocent use.
If Hollywood could prove this in court, then the case wouldn't be before the Supreme Court, most likely. And even if they could, what of the next Grokster that doesn't advertise at all? Isn't the end result that you have to ban the technology?
Drawing a clear distinction between such a product and an iPod would protect both innovation and intellectual property.
Well, yes, yes it would. Does the Post's editorial board have any such distinction in mind? Because lots and lots of smart people haven't been able to come up with one. One also notes that Hollywood thought the iPod was an evil product, back when it was called the Diamond Rio MP3 player. One man's innovation is another man's "Boston Strangler."

Of course, not all editorial boards are so clueless. Surprisingly, the LA Times which might be assumed to take a hard stance on Grokster has a balanced editorial (California's Civil War):

It's worth noting that the lower courts haven't legalized unauthorized copying of protected materials. They simply applied the Betamax test and distinguished Grokster from Napster, the ill-fated file-sharing service that allowed users to illegally copy music on its own servers.

What the entertainment industry wants is veto power over technology with the potential to be used illegally. That's not in society's best interest. If those creating the peer-to-peer networks could be held liable for illegal activity, where do we draw the line? Why not go after the manufacturers of operating systems, hard drives and CD burners that can also play a role in illegal activity?

Unlike the Washington Post or the New York Times, the LA Times notes what the case is not about, that is, it is not about legalizing direct infringement. Fancy that.

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March 28, 2005

New York Times Editorial Board Blows It on Grokster

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Posted by Ernest Miller

Today, the New York Times (reg. req.) editorial board's lead editorial is on MGM v. Grokster. They manage to all but regurgitate Hollywood's talking points on the issue (When David Steals Goliath's Music):

The battle over online music piracy is usually presented as David versus Goliath: the poor student in his dorm hunted down by a music conglomerate. It is easy, in that matchup, to side with the student. But when the Supreme Court takes up the issue this week, we hope it considers another party to the dispute: individual creators of music, movies and books, who need to keep getting paid if they are going to keep creating.
Well, let's just confuse two issues here, shall we? Normally the narrative about college students being hunted down by Hollywood is about direct infringement; the college student is using P2P to directly infringe copyright. We can argue about that issue (I have no problem, generally, with the students being sued for direct infringement), but that isn't what the issue is in Grokster v. MGM. Even if Grokster prevails those students will still be liable. Grokster is about whether companies that make the tools that others use to infringe should be held liable for those other individuals' actions.
At least 90 percent of the material "shared" on Grokster, and perhaps more, is copyrighted.
Wow. Where did they get that statistic? Jack Valenti's talking points? And why did they just say "copyrighted"? Why didn't they use a statistic like 90 percent of the material shared infringes copyright? Perhaps because just because copyrighed material is shared doesn't mean it infringes?
Many big entertainment companies are backing the suit, along with marquee-name musicians like the Eagles and the Dixie Chicks. But so are some creative professionals - represented by groups like the Authors Guild and the Professional Photographers of America - for whom even a few thousand dollars in royalties makes a big difference.
Yeah, and how about the artists who support Grokster and for whom a few thousand dollars in exposure makes a big difference?
The technology community has rallied to Grokster's defense. Its most radical members argue that "information wants to be free" online and disparage the whole idea of intellectual property.
Straw man, straw man, straw man. Why not write that the MPAA has frequently stated that copyright should be "forever minus a day" and that "fair use" isn't a right? There are extremists on both sides (more in Hollywood, I would imagine) but it is a mere rhetorical trick to mention only one side's extremists, especially since the Supreme Court isn't going to decide whether or not copyright should be abolished.
The legal case against Grokster is far from a slam-dunk, and we have been wary of it in the past. The court ruled, in a landmark 1984 case, that Betamax video recorders were legal even though they were used to copy copyrighted material, because they had significant legal uses. It is true that there are legal uses for Grokster - not every file exchanged is copyrighted. But it is notable how much illegal use predominates, and how much its business model relies on theft.
Wary of the argument in the past? Where is the wariness now? How does the editorial board propose to distinguish between a future good VCR and a future bad P2P program?
The founders wrote copyright protections into the Constitution because they believed that they were necessary for progress. Movies, music and books require investments of money and time. If their creators cannot make money from them, many will be unwilling or unable to keep producing. Or they may have to finance their work in troubling ways, like by building in product placements or taking money from donors with agendas.
Grokster is not going to determine whether copyright exists or not. And, uh, hello ... there already seems to be a lot of product placements in current works and plenty of copyright holders are already taking money from donors with agendas. Guess what? For a variety of reasons (such as the death of the myth of objectivity), such things will continue to increase whatever the decision in Grokster.
Grokster's supporters are justified in worrying that if the courts are too quick to rein in new technology, innovation can be stifled. They are also right to point out that copyright has sometimes been given too much protection, notably in the Copyright Term Extension Act, which gratuitously added 20 years to existing copyrights. But these concerns do not erase the continuing importance of intellectual property, which is unquestionably under assault.
Again, how does Grokster erase the continuing importance of intellectual property? How does the editorial board propose prevent overly stifling innovation, what they admit is a legitimate concern? It is easy to say, but very hard to do in practice. See, the INDUCE Act.
Both the court and Congress should be sensitive to evolving technologies. But they should not let technology evolve in a way that deprives people who create of the ability to be paid for their work.
That is sort of a blanket statement isn't it? There are lots of technologies that deprive people who create of making money for their creation. The VCR, for one. The VCR is used to infringe copyright, which it seems, automatically takes the money out of the hands of creators. Should the evolution of the VCR have been stopped? Brilliant editorial New York Times, bravo. Cheap rhetorical tricks, unsubstantiated statistics, and complete lack of an actual solution. Is there any error that wasn't made?

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March 02, 2005

Business Model Incentives and the Grokster Amicus

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Posted by Ernest Miller

Copyfight is hosting a number of posts regarding the various amicus briefs filed on behalf of the Grokster respondants. See, Grokster Ass-Kicking Commences, Venture Capital Speaks, Intel: If Betamax Ain't Broke, Don't Fix It, Berkman Profs: Betamax Ain't Broke. If There's a Problem, Let Congress Help, Media Profs on Grokster: Don't Forget Fair Use, and Eben Moglen & Co. on Grokster: Look Past the Rhetoric. Keep checking back for more.

I haven't read them all, yet. However, I have read the brief from Berkman (Brief of Amici Curiae Internet Law Faculty in Support of Respondents [PDF]). The brief is in three sections. The first part is a description of innovations that would be threatened by a new secondary liability standard as well as a takedown of two of the main academic arguments in favor of Hollywood's position from professors Lichtman, Landes and Arrow.

The second section is an argument that there are business model solutions to the P2P problem, such as Apple's iTunes. Indeed, there is a business model solution. However, one argument that isn't frequently made is that the secondary liability standard that Hollywood promotes has perverse incentives. If, as they argue, technologies should be liable based on the prevalence of infringing activity using the technologies, the incentive is for Hollywood to passively encourage infringing content in order to gain control over the infringing technology.

Imagine the VCR. What if Hollywood had, as they originally did, continued to price pre-recorded videotapes at well over $100 a piece (instead of <$20 as they do now)? Well, there would be a lot more videotape piracy as people would be unable to easily afford to purchase them.

Now consider P2P. What if there were no iTunes? What if there were no Napster 2.0? Or what if there were, but they charged outrageous rates such as $50 per downloaded album (and you could only download albums)? Wouldn't there be even more copyright infringement on the internet than there is currently? If Hollywood has its way in Grokster, wouldn't their incentives be to resist new technologies until they had a court determine the technology was primarily used for infringement and thus subject to their control?

Am I paranoid, cynical or realistic? (Or, and rightfully so, all of the above?)

The third part of the professors amicus makes the point that there are alternative means to handle problems with copyright, and that Congress should be the one to do so.

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November 09, 2004

Announcing the Future of Digital Media Series

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Posted by Ernest Miller

I am happy to announce the launching of a series of interviews I am conducting for Corante called the Future of Digital Media:

The Future of Digital Media is a two-month series, sponsored by Orb, that explores how the empowerment of the consumer over his or her media experience, coupled with the technological innovation that's broadly democratizing media creation, is leading to a revolution in the way people access, consume, share and remake content.

Through interviews with leading commentators and cutting edge practioners, the Future of Digital Media examines the social, legal and economic impacts of this disruptive and revolutionary change.

The first interview, with Jeff Jarvis, is here: The Future of Digital Media: Jeff Jarvis.

Need I say ... read the whole thing.

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November 07, 2004

BitTorrent Cease and Desists

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Posted by Ernest Miller

This might not be news to some, but I've seen the first Notice and Takedown letter for a BitTorrent user. I know that Hollywood has been monitoring BitTorrent for some time (RIAA Monitoring BitTorrent?), but I hadn't actually heard that they were sending notices, not only to those who "seed" the files, but to the people who download using the P2P protocol: Chilling Effects: Notice of Copyright Infringement: August 9, 2004. A little searching around finds this story from ZeroPaid's BBS: Cease and Decist Letter.

Both of these cases involve film or video, aka the MPAA's baliwick, which is interesting to me given the MPAA's recent decision to start suing infringers (MPAA Wields Stick Against Filesharers - Forgets Carrot).

They're getting smarter.

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November 05, 2004

Stop the State AG's From Supporting Grokster Cert

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Posted by Ernest Miller

Prof. Susan Crawford warns that the state attorneys general are considering supporting the MPAA's and RIAA's petition for certiorari in the Grokster decision, which held that P2P filesharing software providers were not liable for the copyright infringements of their users (Call Your State Attorney General). Certiorari is basically asking the Supreme Court to hear the case. If the supremes don't grant certiorari, the decision stands.

You have until 5pm TODAY, to let your Attorney General know that you oppose them supporting Hollywood's attempts to overturn the Sony/Betamax decision:

What's happened is that AGs are politely circulating a brief supporting a grant of cert. -- probably very few of them know what the larger issues are, and probably most of them believe that Grokster is a bad guy who should be punished.

All you have to say is: "This is not an issue you should get involved in. What's really going on here is that the studio plaintiffs are trying to overturn Sony. Overturning Sony would have serious and damaging implications for the high-technology industry in our country -- an industry that contributes enormously to our national economy. Don't sign on."

Handy list of phone numbers here: Full Contact List for the Attorneys General

Call your AG ... call now.

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November 04, 2004

MPAA Wields Stick Against Filesharers - Forgets Carrot

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Posted by Ernest Miller

The hot copyright news today is that the MPAA has finally deigned to get into the trenches with the RIAA and sue individual infringers, according to an AP wirestory published in Silicon Valley (Movie industry to sue file sharers).

If I were the RIAA I would be asking, "what took you so long?"

But, I'm not the RIAA, so I ask, "where's the carrot?" I'm a big proponent of the carrot and stick approach to combatting filesharing. I recognize that no matter what the filesharing plan, there is going to have to be a stick if there is going to be copyright. However, sticks alone are seldom effective, and certainly not in this case.

For the longest time, Hollywood has believed that they can get away with a stick alone, if they were permitted to use it to beat up on third parties, such as the developers of filesharing technology. With the Grokster decision and failure (for now) of the INDUCE Act, that strategy clearly isn't going to work.

The other stick alternative, obviously, is to sue the infringers themselves. However, there are too many of them and the PR backlash is terrible. Which brings us to the carrot. Make legal filesharing more attractive and illicit filesharing becomes much less attractive. Indeed, I can imagine a tipping point in which so many people abandon the illicit networks for the licit that the stick becomes much more effective. But hey, that's just me.

Of course, the much smarter members of the MPAA don't believe in carrots. And, to the extent that they support carrots, they are the weak, anemic, pseudo-carrots of things like iTunes, according to the LA Times (annoying reg. req.) (MPAA Plans Suits to Stop Film Piracy):

Suing individuals may prevent some from downloading, but "Fight Club" producer Ross Grayson Bell said the bigger effort should be in providing legal ways to buy movies on the Internet. The right model, he said, is Apple Computer Inc.'s iTunes Music Store, which enables users to download songs quickly and at a reasonable price.
The iTunes model would have been a good start several years ago, but it too little, too late in 2004.

How late? Pretty darn late, but the executives at the companies behind the MPAA don't care, apparently:

Gordon Paddison, an executive vice president at Time Warner Inc.'s New Line Cinema, counters that suing users of file-sharing networks is one way to build awareness among the company's main base of customers, 18-to-26-year-olds, who have grown up thinking that free downloading is acceptable.

"How do you get the genie back in the bottle?" he asked. "Unfortunately, it will take a considerable amount of pain." [emphasis added]

Paddison, the pain you feel may be your own.

For other commentary:

  • Defamer: MPAA Ready To Sue Pirates
    Glickman took a reflective pause before explaining, "See, the way it works is we dangle the carrot, then when a file-sharer reaches for the it, we wiggle the stick so they know what we're packing, We ask them, 'Are you sure you want to do that? Didn't you see the stick?' And if they insist on going for the carrot, we beat them to death with the stick, you know, just until we can see a little brain through the skull. That's why you need the stick and the carrot both. It's really hard to kill someone with a carrot."
  • Slashdot: Movie Industry to sue File Sharers
  • Copyfutures: The MPAA Will Follow Suit
    Though the comment we can probably all agree on, is that of GuyMannDude who noted that most people don't have much to worry about until the Porn Industry Movie Producers (PIMP) starts coming after people.
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    October 08, 2004

    MPAA/RIAA Files Petition for Cert in Grokster Case

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    Posted by Ernest Miller

    By complete coincidence, the day after the INDUCE Act died (for now), the MPAA and RIAA filed a petition for a writ of certiorari with regard to the MGM v. Grokster decision:

    Whether the Ninth Circuit erred in concluding, contrary to long-established principles of secondary liability in copyright law (and in acknowledged conflict with the Seventh Circuit), that the Internet-based “file sharing” services Grokster and StreamCast should be immunized from copyright liability for the millions of daily acts of copyright infringement that occur on their services and that constitute at least 90% of the total use of the services.
    Um, okay.

    More later, when a PDF or other easy-to-read document is available.

    UPDATE 1215 PT

    Here is the 46-page document: MGM v. Grokster: Petition for a Writ of Certiorari [PDF].

    UPDATE 2 1240 PT

    Public Knowledge has issued a press release:

    Public Knowledge Statement on MPAA Petition to Supreme Court

    Background: The Motion Picture Association of America (MPAA) has asked
    the U.S. Supreme Court to review the Ninth Circuit /Grokster/ case, in
    which a peer-to-peer service was not held liable for copyright infringement.

    Statement of Gigi B. Sohn, president of Public Knowledge:

    “There is no reason the Supreme Court should review the /Grokster/
    decision. That case was based on the principles established in the 1984
    /Betamax/ case, which has lead to the largest and most profitable period
    of technological innovation in this country’s history. Consumers,
    industry and our country have all benefited as a result.

    “The Betamax case was good law in 1984 and remains good law today.”

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    August 26, 2004

    Introducing: The Importance Of ... Audio Edition

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    Posted by Ernest Miller

    As I noted in the previous post (Broadcatching on the iPod Platform), I've decided to start an audio show on IT Conversations. The shows will be available in both MP3 and AAC. More importantly, they will be available via RSS with enclosures.

    The audio edition homepage: The Importance Of ... Law and IT.

    The first show is, I think, a very interesting one, dealing with the recent Grokster decision (The Importance of ... Law and IT: MGM v. Grokster). What makes it interesting is not only the topic, but the most excellent guests on the show:

    I would really like to thank all the participants for joining me in this first show for a great discussion. Many thanks!

    During the show, Fred mentions a white paper he has written on designing P2P filesharing programs while avoiding liability. Those interested can find it here: IAAL: Peer-to-Peer File Sharing and Copyright Law after Napster.

    I've also added a new category to this blog to follow my audio shows: Audio Edition Archive.

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    August 19, 2004

    Grokster Wins Big in 9th Circuit

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    Posted by Ernest Miller

    The Ninth Circuit has upheld the district court decision in Grokster. Read the 26-page decision: MGM v. Grokster [PDF] . Read it. The decision isn't really all that long, it is single column formatted with 8 pages of administive gobbledygook.

    A quick read of opinion leads me to think it a great decision that shows a deep understanding of technology and the public policy behind what the decision calls Sony-Betamax. This decision also demonstrates a better understanding of the Napster decision than the court that wrote it, I think, putting it into better context, certainly.

    Other coverage (UPDATED 1120PT, 1150PT, 1220PT, 1245PT, 1255PT, 1340PT, 1400PT, 1525PT, 1800PT):

    The man who argued the case, Fred von Lohmann, discusses it - read! (More on MGM v. Grokster Ruling).
    EFF's press release (EFF Scores Landmark Win for P2P).
    Jason Schultz on Copyfight (Powerful Language from the MGM v. Grokster Decision).
    Cory Doctorow on BoingBoing ( EFF wins Grokster! Software doesn't have to be easy for Hollywood to wiretap!).
    Techdirt (Appeals Court Rules For Grokster).
    Ed Felten (Grokster Wins in Appeals Court).
    Joe Gratz discussed the issue over dinner last night with blogger luminaries and they agreed this would increase pressure to pass the INDUCE Act (Dinner). More from Gratz on the recurring trope in the case (Victory).
    Eugene Volokh (he disagrees about whether P2P "materially contributes" to infringement (Grokster).
    Chris Cohen ( The EFF has won the Grokster case!!!).
    Andrew Raff on IPTABlog (Ninth Circuit Affirms Grokster Ruling).
    Andrew Raff on the INDUCE Act Blawg (Ninth Circuit Affirms Grokster).
    Siva Vaidhyanathan points out the decision's extensive reference to the band (Wilco Saves the Day).
    Ars Technica (Appeals court upholds legality of P2P software).
    Seth Finkelstein analogizes this decision to the LaMacchia case that resulted in the No Electronic Theft Act (MGM v. Grokster appeal victory, and The INDUCE Act Cometh).
    Frank Field notes that everyone seems to agree on the key paragraphs in the decision (9th Circuit Affirms Grokster).
    Patent attorney Dennis Crouch thinks the opinion is well-written (Grokster not liable).
    Dan Gillmor hopes the logic of this decision spreads (Important Copyright Ruling Favors Freedom).
    P2P United's press release after the jump.
    Slashdot (Your Rights Online: Grokster Wins Big in Ninth Circuit).
    American Constitution Society (9th Circuit Panel Allows Peer to Peer File Swapping).
    Scrivener's Error has some good points to make ([Expletive Deleted] Headline Writers).
    Tim Wu, Lessig's guest-blogger, promises analysis here (Grokster Wins).
    The Trademark Blog has the best headline (Grokster Advances To Finals).
    Public Knowledge's press release (Public Knowledge Statement on Ninth Circuit Decision in the Grokster case).
    Derek Slater does a little cleanup (Grokster Leftovers).
    IP News Blog (The EFF wins Grokster; A good day with possible consequences?).
    Tim Wu, again, on the possibilities of Certiorari to the Supreme Court (Cert.?).
    Technology Liberation Front (Don't Get Too Excited).
    Wendy Seltzer (MGM v. Grokster: 9th Circuit Affirms Software Makers Not Liable).

    Mainstream Press Coverage (Added 1130PT, 1145PT, 1245PT, 1400PT, 1525PT, 1800PT) - They finally get in the act:
    C|Net News (Judges rule file-sharing software legal).
    Reuters (Court Deals Blow to Movie Studios).
    AP (Court: Grokster, StreamCast Not Liable).
    WIRED (P2P Services in the Clear).
    LA Times (reg. req.) (Studios Lose Round in File-Sharing Battle).
    The Register (Court tells RIAA and Congress to let P2P software thrive).
    Internet News (P2Ps Score Landmark Legal Victory).
    PC World (Peer-to-Peer Companies Win in Court).
    Mercury News (Federal appeals court rejects attempt to shut down music file-sharing networks).

    Below a few highlights and possible impacts regarding the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) ...

    ...continue reading.

    Comments (1) + TrackBacks (0) | Category: Copyright | File Sharing | INDUCE Act

    August 13, 2004 - New and Improved

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    Posted by Ernest Miller

    Three weeks ago or so, I took to task for poor use of P2P for public domain document distribution ( - Not the Most Impressive Use of P2P). Since then, OutragedModerates has made a number of changes, for example noting the spyware problems with certain P2P software distributions and adopting more efficient and effective technologies for P2P distribution such as BitTorrent.

    Comments (0) + TrackBacks (0) | Category: File Sharing

    August 08, 2004

    Cultural Protectionism, Copyright and Filesharing

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    Posted by Ernest Miller

    Marginal Revolution points out an interesting confluence of interests in the copyfight (Cultural diversity and copyright). Traditionally, many countries attempting to control cultural influences have had quota systems for cultural imports. Countries, such as France, would permit only so many American movies, for example. Hollywood has, of course, strongly opposed this and pushed for cultural products to be regulated like any other import. Until now, cultural products have basically been more or less exempt from free trade agreements.

    Of course, this does not mean that the demand for American cultural products went away. With the advent of the internet, people in countries with cultural quotas are accessing American culture by downloading it through P2P programs. To stop this leakage, countries such as France are cracking down on filesharing, which Hollywood likes. However, without their desired cultural products quotas, it is unclear how much interest countries like France would have in regulating P2P.

    Interesting, and revealing about how copyright enforcement is a tool of cultural control.

    Comments (3) + TrackBacks (0) | Category: Copyright | File Sharing

    August 06, 2004

    State AGs Warn Filesharing Companies: Your Technology Too Dangerous!

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    Posted by Ernest Miller

    Earlier today, I discussed the first media report of a letter from the state attorneys general to various P2P companies (States Warn Email Providers). Now, I have an actual copy of the letter and is it clueless. Read the 8-page (4 pages of content, 4 pages of signatures) missive for yourself: Letter from National Assoc. of Attorneys General to P2P United, Aug. 5, 2004 [PDF]. Read on for the annotation...

    ...continue reading.

    Comments (15) + TrackBacks (0) | Category: File Sharing

    August 05, 2004

    States Warn Email Providers

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    Posted by Ernest Miller

    The Washington Post (annoying reg. req.) reports that state attorneys general are rather unhappy with the illegal activity taking place through email networks (States Warn Email Providers):

    More than 40 state attorneys general are set to warn major email providers that they may face enforcement actions if they do not take steps to stem illegal activity on the networks, such as the emailing of child pornography and stolen movies and music.

    In a letter to the heads of Microsoft, Google, Yahoo!, AOL, and the Apache Software Foundation, the attorneys general write that email software "has too many times been hijacked by those who use it for illegal purposes to which the vast majority of our consumers do not wish to be exposed."

    Oh, wait, that didn't happen. Instead, the state attorneys general warned "major peer-to-peer file-sharing networks" and the WashPost's article was titled "States Warn File-Sharing Networks." The companies warned were Kazaa, Grokster, BearShare, Blubster, eDonkey2000, LimeWire and Streamcast Networks. Heck, I'm surprised the attorneys general were smart enough not to send a letter to "Gnutella" at 1 Protocol Lane.

    But given their condemnation, why shouldn't the state attorneys general condemn email and FTP as well? An awful lot of child porn is shared via email. Shouldn't email providers be doing more to stop it?

    Unfortunately, the article doesn't provide the letter and there isn't enough information to know what, exactly, has the state attorneys general upset and what they expect P2P networks to do about it. One thing we do know, the state AGs don't like privacy:

    The state officials also ask the networks to stop adding encryption features to their networks that they say prevent law enforcement agencies from policing the networks to determine whether they are aiding illegal activity.

    The encryption measures "only reinforce the perception, as well as the reality, that P2P technology is being primarily used for illegal ends," the letter says.

    In related news, the state AGs noted that people who exercise their constitutional rights, such as the right against self-incrimination, "only reinforce the perception, as well as the reality, that civil liberties are being primarily used for illegal ends."

    Comments (3) + TrackBacks (0) | Category: File Sharing

    August 04, 2004

    One Way Darknets Are Vulnerable

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    Posted by Ernest Miller

    USA Today publishes an AP wirestory about the recent prosecution of a copyright infringer who was a member of the warez group DrinkorDie (Washington state man sentenced for copyright infringement). In return for no jail sentence and a $6,000 fine, the defendant provided information on other member's of his group:

    Burns departed from minimum sentencing guidelines of 33 to 41 months imprisonment, noting Myers' cooperation in exposing and breaking up several warez groups.
    Another reason why darknets will be invulnerable to legal attack. If you keep them small, you'll be safe, but subject to the social controls of the group. If they grow too large, they'll become vulnerable to legal attack.

    Darknets will be a significant part of our filesharing future, I believe, but they won't be perfect substitutes for the current, open filesharing networks. Ultimately, I think they will be supplemental and complimentary to licensed filesharing networks.

    via BNA's Internet Law News

    Comments (4) + TrackBacks (0) | Category: File Sharing

    P2P = Patriot to Patriot

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    Posted by Ernest Miller

    WIRED's Xeni Jardin reports on P2P Congress, a new project dedicated to making congressional hearings available through P2P filesharing networks in order to reduce bandwidth costs and engage citizens in democracy (Group Wants to Induce Downloads). P2P in this case stands for "Patriot to Patriot."

    The government webcasts some of it hearings, but doesn't make them available for later viewing over the internet. Wouldn't want the people to have too much access to information about what the government is doing, I guess. So, the people will make the hearings available, but bandwidth is expensive, so it makes sense to share the bandwidth costs. Enter the latest peer-to-peer filesharing networks, which can effectively share the bandwidth costs of democracy. Frankly, I'm disappointed that the US government isn't using these technologies to reduce bandwidth costs for the taxpayer.

    The first hearings available are, of course, the Senate Judiciary Committee hearings on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). Why? Because the INDUCE Act intends to make this democracy-enabling technology illegal.

    Join the network, share the load.

    Want to know more about the INDUCE Act?
    Please see LawMeme's well-organized index to everything I've written on the topic: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.

    Comments (0) + TrackBacks (0) | Category: File Sharing | INDUCE Act

    July 30, 2004

    Optimal Level of DRM for Music Downloads = 0

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    Posted by Ernest Miller

    Jeevan Jaisingh is an assistant professors in the Dept. of Information and Systems Management at HKUST Business School in Hong Kong. He has recently published a very interesting paper on SSRN. Link to the 24-page paper here: Piracy on File Sharing Networks: Strategies for Recording Companies.

    Here's the abstract:

    In this paper we study the impact of selling music as downloads, on piracy, and the strategies recording companies should adopt to increase profits. We find that total music sales and profit of firm is higher, and total piracy (demand on file sharing network) is lower, when the firm sells a downloadable version. We look at the firm's optimal choice of Digital Rights Management (DRM) protection, and find that revenue decreases with increased protection, and so it is optimal for the firm not to employ any DRM, in the absence of network effects. Listening to music or watching video protected by DRM is cumbersome to users. They have to download license files, there are restrictions on the number of times the file can be copied, and restrictions on the type of devices that can play the file. As a result there is a disutility to the legal consumer, because of which the firm charges lower prices. Loss in revenue due to decreased prices cannot be compensated by the increase in demand, and hence revenue decreases with higher protection. When network effects (NE) is high, and a nominal search cost is above a certain threshold, then non-zero protection becomes optimal. This result is exactly the opposite of what was found in previous research (Conner and Rumelt 1991), where protection was found to be optimal in the absence of NE, and zero protection was optimal if NE is high enough.
    Having read the paper, there are a number of questions I have about some of the assumptions and models, but overall it is a very engrossing paper.

    There are also some interesting asides as well. For example,

    The German media conglomerate Bertelsmann has announced recently that it is to begin offering “nofrills” and luxury versions of CDs in a bid to combat piracy. Bertelsmann will offer three versions of its CDs, a €=9.99 version, with only the title printed on the disc and nothing else; a €=12.99 version, which will look like a regular CD, with a cover and liner notes; and a deluxe version costing €=17.99, which will include video clips and other additional material (Philips 2004). This provides anecdotal evidence which supports our result that versioning is an appropriate strategy to fight piracy. The versioning we considered was providing a no-frills version through downloads, while the strategy Bertelsmann is adopting is providing a "no-frills" version of the CD, however the intuition for both is the same. Bertelsmann’s record label, BMG, hopes that the move will boost sales by up to 25 per cent (Philips 2004).
    Definitely a paper I'd like to see some responses and extensions to. A highly recommended copyfighter read.

    via Legal Theory Blog

    Comments (2) + TrackBacks (0) | Category: Digital Rights Management | File Sharing

    July 28, 2004

    P2P Problem or Security Issue?

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    Posted by Ernest Miller

    C|Net News is running a very interesting story about a new blog that is posting military and military-related information supposedly found on P2P filesharing networks (Are P2P networks leaking military secrets?). The blog is See What You Share on P2P. The purpose of the site is explained here: Why This Site Exists.

    A few months ago, I downloaded some military briefings from the Gnutella Network. The briefings were zipped and the file contained 21 documents with classifications ranging from For Official Use Only to Secret/NO FORN. Shocked at my discovery, I notified an agency on a nearby military installation. When nothing happened, I notified another agency. I continued this course because no action was taken and for a nation at war, I was concerned for the safety of our soldiers.

    It may appear that I am picking on certain institutions. This is true. I want everyone to know that we can be our own worst enemies when we don’t understand the full power of our technology. I want every military and government agency to see first hand what is being shared with anyone who has a computer. Since a picture is worth a thousand words, I can save myself some talking.

    This is not surprising. Nor, I'm sure, is the information inadvertantly shared solely related to military and emergency services. There are probably a number of corporations that would be surprised what files are available for the downloading.

    This is a real problem. However, it is properly a computer security issue, not a P2P issue, as the website's owner misleadingly claims, "Technology often outruns legislation. So is the case with Peer 2 Peer networks. Many people obtain P2P software so they can download music or movies. A large number of those people do not have any idea what they are sharing." Note the reference to legislation. Of course, the RIAA, among others, often makes this point and requests more regulation, such as the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). However, is it really the technology so much as unfamiliarity with the security issues involved?

    I remember some of the earlier days of email and how people would accidentally "reply all" or forward to mailing lists information they shouldn't. Still happens, actually. Does that mean we need more regulation of email? The default settings for certain operating systems leave plenty of security holes for accessing information on a network-connected computer. Do we need operating system regulation?

    See What You Share on P2P is doing a fine service alerting people (and especially gov't officials) to the security problems their networks have. However, to characterize it as a P2P problem, as opposed to a security problem, is incorrect. We all need to be more familiar with the means and necessity of protecting certain types of information on our computers.

    Want to know more about the INDUCE Act?
    Please see LawMeme's well-organized index to everything I've written on the topic: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.

    Comments (1) + TrackBacks (0) | Category: File Sharing | INDUCE Act | Security

    July 27, 2004

    RIAA Subpoenas for John Does Valid

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    Posted by Ernest Miller

    C|Net News reports that the RIAA has won a significant battle in its lawsuits against thousands of John and Jane Does (Judge: RIAA can unmask file swappers). The ruling basically allows the RIAA to subpoena (on an expedited basis) a broadband provider for the identities of the John Does the RIAA has sued for copyright infringement. The RIAA must make a prima facie case of infringement, but the various arguments raised to quash subpoenas were rejected.

    Although this is a decision by a single district court, it is likely to be persuasive in other courts though it isn't binding. Read the 26-page decision: Sony v. Does 1-40 [PDF].

    The most important argument involved the First Amendment right to anonymity of the file sharers. While the judge recognized the First Amendment interest, he concluded that it was not sufficient to protect anonymity for filesharing of copyrighted files without any additional speech. This was the right decision. I agree with Paul Levy:

    Paul Levy, an attorney at the nonprofit group Public Citizen, said that "the nice thing about the ruling is that (the judge) recognizes the First Amendment interests at stake here and he applies a balancing test." Levy, who filed a friend-of-the-court brief opposing the RIAA, said that Chin's analysis ensures that companies filing a copyright infringement lawsuit must prove they have a real case and aren't merely on a fishing expedition for someone's name.
    The court reserved the right to address the other arguments, such as personal jurisdiction and improper joinder, later. This decision merely addressed the question of quashing the subpoenas. Now that the RIAA knows who it should sue, severance and and personal jurisdiction arguments will probably be made on behalf of the defendants.

    There was one interesting aspect of the personal jurisdiction question. Defendants/amici were arguing that the IP/geographic location databases were accurate and showed most of the defendants outside of New York, while the plaintiffs were arguing that they weren't accurate enough to deny the subpoenas:

    A supporting declaration by Seth Schoen, staff technologist with amicus curiae Electronic Frontier Foundation, explains the process by which defedants' IP addresses can be matched up with specific geographic designations, using a publicly available database operated by the American Registry for Internet Numbers. These geographic designations indicate the "likely" locations of the residence or other venue where defendants used their Internet-connected computers. Amici maintain that as many as thirty-six of the forty Doe defendants are "likely" to be found outside of New York.

    Plaintiffs, however, dispute the accuracy of the methods described in the Schoen Declaration. According to plaintiffs, the geographical designations fall "far short" of 100 percent accuracy and are "often extremely inaccurate." [citations omitted]

    Shades of Nitke v. Ashcroft, in which the government advocates the use of geolocation services to promote community standards on the internet with regard to obscenity. Censorware expert Seth Finkelstein has provided testimony that such services are flawed: (Expert Report of Seth Finkelstein in Nitke v. Ashcroft).

    Tech Law Advisor has some additional comments ( Up/Downloaders Identities Not Protected by First Amendment).

    Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing | Freedom of Expression | Privacy

    July 20, 2004 - Not the Most Impressive Use of P2P

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    Posted by Ernest Miller

    Okay, so there is this website that is collecting and organizing hard-to-find documents about the Bush Administration ( Great! Power to the people! Democracy in action! makes the files available via P2P networks such as KaZaA and others and WIRED does up a big story on them (Downloading for Democracy):

    While legislators in Washington work to outlaw peer-to-peer networks, one website is turning the peer-to-peer technology back on Washington to expose its inner, secretive workings.
    Huh? This makes sense, why? Sure, you can use P2P networks to distribute these files, but why would you want to? As a matter of fact, this is a pretty asinine way to do it. From the instructions (Download for Democracy):
    On the KaZaa and Soulseek networks, you can search for the "" username, and then use the "browse user files" option to find the documents. All three networks allow searching by document; go to the Government Document Library for a list of the documents currently available, which provides their exact filenames. Note that only guarantee the authenticity of documents downloaded from the usernames given above. [colors, emphasis, links in original]
    Let me get this straight. I go to the website, go to the "Government Document Library," look up the documents I want, ignore the fact that I could download them from the website, start a P2P program, enter a search for the document name and/or user name, and then download the documents, remembering that if I don't download the documents from I might be getting inauthentic files. Gee, how could anyone ever think that P2P isn't useful? As WIRED says,
    Anderson [publisher of the site] didn't intend to make a statement by using P2P networks, but his use of the networks to deliver the data counters the usual government and entertainment industry arguments that P2P networks have no value, apart from stealing copyright works, and therefore should be outlawed.
    Yeah. It sure counters those arguments. Why, HTTP would never be suitable for serving static documents from an existing website. And the distributed nature of a P2P network really makes sense when you're basically telling people to download the documents from a single, centralized provider.

    There are legitimate uses and needs for P2P. Particular functions where it makes sense. This isn't one of them.

    Bonus:, helpfully provides some links to providers of P2P software. Unfortunately, the first link the site provides isn't to a spyware-free version of P2P software. Thanks a lot.

    Comments (0) + TrackBacks (0) | Category: File Sharing

    July 13, 2004

    Destroying Some Artists so that Others Might Live

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    Posted by Ernest Miller

    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.

    Bonus: This is the 500th Post on "The Importance Of..." Go, me!

    Comments (1) + TrackBacks (0) | Category: Copyright | File Sharing

    July 10, 2004

    Content Subscription Shenanigans

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    Posted by Ernest Miller

    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 McGriddles hotcakes for a few weeks and then, as demand falls, are taken off the market until their next appearance. If you knew you could buy a copy of Disney's Snow White anytime (Disney's version is not currently available after a limited time release), many would not have rushed to purchase it.

    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.

    Comments (0) + TrackBacks (0) | Category: File Sharing

    July 09, 2004

    No Guarantees with Content Subscriptions

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    Posted by Ernest Miller

    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."

    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]

    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):
    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).

    Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

    July 07, 2004

    Lessig on Hollaar's "Sony Revisited" and the INDUCE Act (IICA)

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    Posted by Ernest Miller

    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.

    Comments (1) + TrackBacks (0) | Category: Copyright | File Sharing | INDUCE Act

    July 05, 2004

    Album Sales Increase, P2P Blamed

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    Posted by Ernest Miller

    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.

    Comments (0) + TrackBacks (0) | Category: File Sharing

    July 02, 2004

    Quote of the Day: Music Pricing Edition

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    Posted by Ernest Miller

    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?

    Comments (0) + TrackBacks (0) | Category: File Sharing

    June 23, 2004

    Why the RIAA Should Continue to Sue Filesharers

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    Posted by Ernest Miller

    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.

    I disagree. If there is to be any voluntary solution to the filesharing issue, then legal enforcement is going to have to be part of that solution. Otherwise, even if the voluntary alternative compensation plan was $5 a month, there would be sufficient incentive to create well-functioning free alternatives and a significant free-rider problem (Thoughts on the EFF P2P Solution White Paper). I don't know for sure, but I suspect Gratz would support enforcement through lawsuit in such a case. Lawsuits would also be more effective when the number of illicit filesharers substantially decreases as people shift to licit downloading. Read on...

    ...continue reading.

    Comments (1) + TrackBacks (0) | Category: File Sharing

    April 07, 2004

    The Broadcast Flag Treaty - Draft Available

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    Posted by Ernest Miller

    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...

    ...continue reading.

    Comments (4) + TrackBacks (0) | Category: Broadcast Flag | Copyright | Digital Millennium Copyright Act | Digital Rights Management | File Sharing | Freedom of Expression | Internet | Telecomm

    March 31, 2004

    An Unenthusiastic Response to the Canadian Filesharing Decision

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    Posted by Ernest Miller

    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:

    • Downloading a song for personal use does not amount to infringement
    • Placing personal copies into a shared directory is not "distributing" or "authorizing the reproduction" of sound recordings
    • There was no evidence of knowledge, necessary to secondary infringement liability

    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?

    Comments (0) + TrackBacks (0) | Category: File Sharing

    Alternative Compensation Systems and the Nielsens

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    Posted by Ernest Miller

    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

    Comments (0) + TrackBacks (0) | Category: File Sharing

    March 29, 2004

    RSS+BitTorrent in Action - Broadcatching Examples & Roundup

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    Posted by Ernest Miller

    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.

    Comments (2) + TrackBacks (0) | Category: Broadcatching/Podcasting | File Sharing | RSS

    PIRATE Act - Wiretaps for Civil Copyright Infringement?

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    Posted by Ernest Miller

    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.

    Comments (0) + TrackBacks (0) | Category: File Sharing

    March 27, 2004

    PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry

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    Posted by Ernest Miller

    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.

    ...continue reading.

    Comments (3) + TrackBacks (0) | Category: Copyright | File Sharing

    March 24, 2004

    RSS, BitTorrent, Broadcatching, Porn, Business Models, and Banned Music

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    Posted by Ernest Miller

    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 ...

    ...continue reading.

    Comments (3) + TrackBacks (0) | Category: Broadcatching/Podcasting | File Sharing | RSS

    March 23, 2004

    RSSTV Emergency Broadcatching System

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    Posted by Ernest Miller

    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.

    ...continue reading.

    Comments (2) + TrackBacks (0) | Category: Broadcatching/Podcasting | File Sharing | RSS | Security | Telecomm

    March 22, 2004

    Broadcatching, RSS+BitTorrent Progress Report and Roundup

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    Posted by Ernest Miller

    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...

    ...continue reading.

    Comments (1) + TrackBacks (0) | Category: Broadcatching/Podcasting | File Sharing | RSS

    March 18, 2004

    "True Name and Address" Bill for All Filesharers Introduced in Calif

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    Posted by Ernest Miller

    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.


    You can find your California State representatives here: Find Your California State Legislative Representatives. Let them know what you think of these bills.

    Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing | Freedom of Expression | Privacy

    Broadcatching - The Good, the Bad, the Slashdot

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    Posted by Ernest Miller

    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.

    Hack your TiVo for fansubs

    The way I figure it, with this bittorrent-RSS combination and a slight modification of torrent watching sites like animesuki [] 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.

    Comments (0) + TrackBacks (0) | Category: Broadcatching/Podcasting | File Sharing | RSS

    March 17, 2004

    Social Filesharing Networks Not So Social

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    Posted by Ernest Miller

    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.

    Comments (0) + TrackBacks (0) | Category: File Sharing

    Progress & Freedom Study is Anti-Progress

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    Posted by Ernest Miller

    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

    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

    Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

    March 16, 2004

    RIAA Monitoring BitTorrent?

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    Posted by Ernest Miller

    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.

    Comments (10) + TrackBacks (0) | Category: File Sharing

    March 15, 2004

    Client-Side Remixing Conundrums

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    Posted by Ernest Miller

    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.

    Comments (2) + TrackBacks (0) | Category: Culture | File Sharing

    March 13, 2004

    Broadcatching Roundup

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    Posted by Ernest Miller

    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).


    Random Rants has several posts following RSS + BitTorrent. See, P2P meets BitTorrent, Ye olde RSS & BitTorrent debate and RSS, BitTorrent & Tivo.

    Comments (0) + TrackBacks (0) | Category: Broadcatching/Podcasting | File Sharing | RSS

    March 12, 2004

    First Broadcatching App Available! (And Related News)

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    Posted by Ernest Miller

    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

    Comments (2) + TrackBacks (0) | Category: Broadcatching/Podcasting | File Sharing | RSS

    March 11, 2004

    More Thoughts on EFF's Filesharing Plan

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    Posted by Ernest Miller

    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:

    • Today's broadband adopters are more price-sensitive. Two factors motivate new subscribers the most: Being offered a discount package of broadband and other services, and the loss of free dial-up service. With 43 percent of new subscribers motivated by a discount package, that motivation now exceeds the promise of greater speed for multimedia.
    • Tomorrow's adopters will be even more mainstream. Recent broadband subscribers are lower-income and less technology-optimistic than more tenured ones--exactly the types of consumers who are more price-sensitive and need less speed. This trend will continue: Consumers who plan to sign up for broadband in the next year will be even lower-income and no more technology-optimistic than today's new subscribers and will continue to prioritize price over speed.

    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.

    Comments (0) + TrackBacks (0) | Category: File Sharing

    Something's Gotta be Done About the Beatles

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    Posted by Ernest Miller

    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).

    Comments (0) + TrackBacks (0) | Category: Copyright | Culture | File Sharing

    March 10, 2004

    BitTorrent, RSS and Broadcatching, Catching On

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    Posted by Ernest Miller

    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." pointed me to a collection of links to blogs that post MP3 files (mp3 blogs/rotation etc.). For example:

    Could it be more obvious that MP3 blogs would benefit from broadcatching?

    For more information on Broadcatching, see also:
    BitTorrent + RSS = The New Broadcast
    Broadcatching - Not Broadcasting
    Broadcatching - The Early Days
    RSS + BitTorrent Announcement Soon?

    Comments (3) + TrackBacks (0) | Category: Blogging and Journalism | Broadcatching/Podcasting | File Sharing | RSS

    Napster's New Music Delivery Service, Not So New, Not Efficient

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    Posted by Ernest Miller

    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


    More at C|Net News (Napster, IBM aim to save cache).

    Comments (1) + TrackBacks (0) | Category: File Sharing

    Why the ala Carte Music Model is Doomed

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    Posted by Ernest Miller

    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.

    Comments (5) + TrackBacks (0) | Category: File Sharing

    Dangermouse, the Jay-Z Construction Set and the Videogame Content Creation Model

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    Posted by Ernest Miller

    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')

    Comments (8) + TrackBacks (0) | Category: Copyright | Culture | File Sharing | Games

    March 09, 2004

    Victory for EFF Creates Problems for EFF's Filesharing Solution

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    Posted by Ernest Miller

    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?

    Comments (7) + TrackBacks (0) | Category: File Sharing

    E Ink E Book Reader Soon

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    Posted by Ernest Miller

    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

    Comments (0) + TrackBacks (0) | Category: File Sharing | Tools

    March 08, 2004

    RSS + BitTorrent Announcement Soon?

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    Posted by Ernest Miller

    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.

    Comments (0) + TrackBacks (0) | Category: Broadcatching/Podcasting | File Sharing | RSS

    March 06, 2004

    Broadcatching - The Early Days

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    Posted by Ernest Miller

    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

    Comments (0) + TrackBacks (0) | Category: Broadcatching/Podcasting | File Sharing | RSS

    March 04, 2004

    Derek Slater Reports on Digital Music Forum

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    Posted by Ernest Miller

    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.

    Comments (0) + TrackBacks (0) | Category: File Sharing

    Employers Ripe for Filesharing Solution?

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    Posted by Ernest Miller

    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.

    Comments (0) + TrackBacks (0) | Category: File Sharing

    March 03, 2004

    Audible Magic's Sleight of Hand

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    Posted by Ernest Miller

    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.

    Comments (1) + TrackBacks (0) | Category: File Sharing

    Broadcatching - Not Broadcasting

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    Posted by Ernest Miller

    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.

    Comments (1) + TrackBacks (0) | Category: Broadcatching/Podcasting | File Sharing | RSS

    February 28, 2004

    A History Palette for Music

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    Posted by Ernest Miller

    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 ...

    Comments (7) + TrackBacks (0) | Category: Copyright | File Sharing

    February 27, 2004

    Program My TiVo!

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    Posted by Ernest Miller

    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

    Comments (1) + TrackBacks (0) | Category: File Sharing | RSS | Tools

    February 26, 2004

    Thoughts on the EFF P2P Solution White Paper

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    Posted by Ernest Miller

    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.

    ...continue reading.

    Comments (7) + TrackBacks (0) | Category: File Sharing

    February 12, 2004

    Jim Griffin on the Future of Filesharing

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    Posted by Ernest Miller

    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.

    Comments (0) | Category: File Sharing

    February 11, 2004

    RSS for TV, Music

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    Posted by Ernest Miller

    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

    Comments (0) | Category: Blogging and Journalism | File Sharing | Open Standards | Tools

    February 09, 2004

    P2P and Pornography: Cheap is More Convenient

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    Posted by Ernest Miller

    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.

    Comments (4) | Category: Copyright | Digital Rights Management | File Sharing

    February 06, 2004

    P2P Industry Association is Not Your Friend

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    Posted by Ernest Miller

    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:

    ...continue reading.

    Comments (3) | Category: Copyright | Digital Rights Management | File Sharing

    January 21, 2004

    Mix CD Starting Kit

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    Posted by Ernest Miller

    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

    Comments (1) + TrackBacks (0) | Category: File Sharing | Tools

    January 16, 2004

    Why Not Run Your Own Game Server?

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    Posted by Ernest Miller

    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).

    Comments (0) + TrackBacks (0) | Category: Copyright | Culture | File Sharing | Games | Open Access | Open Standards

    January 15, 2004

    Hollywood Admits Third Screener Online

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    Posted by Ernest Miller

    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

    Comments (1) + TrackBacks (0) | Category: File Sharing

    January 14, 2004

    Sen. Coleman to Convene P2P Summit

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    Posted by Ernest Miller 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.

    via JD's New Media Musings

    Comments (0) + TrackBacks (0) | Category: File Sharing

    Twenty-one Oscar Screeners on the Internet?

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    Posted by Ernest Miller 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.

    Comments (0) + TrackBacks (0) | Category: File Sharing

    Another Screener on the Internet

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    Posted by Ernest Miller

    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.

    Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

    January 13, 2004

    Aimster Fails to Get Supreme Court Cert

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    Posted by Ernest Miller

    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.

    Comments (0) + TrackBacks (0) | Category: File Sharing

    A Beam in Hollywood's Eye

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    Posted by Ernest Miller

    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.

    Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

    December 18, 2003

    Napsterization: The Blog, Debuts

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    Posted by Ernest Miller

    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: 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.

    Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Copyright | File Sharing

    December 11, 2003

    Porn, Compulsories and Filtering

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    Posted by Ernest Miller

    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.

    Comments (2) + TrackBacks (0) | Category: Copyright | File Sharing | Freedom of Expression | Rating and Filtering

    December 10, 2003

    Technology Continues to Challenge Legal Regimes

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    Posted by Ernest Miller

    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.

    Comments (0) + TrackBacks (0) | Category: File Sharing | Tools

    Felten's Challenge on Compulsory Monitoring Schemes

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    Posted by Ernest Miller

    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.

    Ouch. These are some seriously tough issues. Of course, this challenge only really applies to one model of widespread monitoring of all use. In other systems, you aren't trying to monitor all use but only a subset of use, if at all.

    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.

    Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

    December 01, 2003

    60 Million Moral Exemplars

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    Posted by Ernest Miller

    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."

    Comments (4) + TrackBacks (0) | Category: Copyright | File Sharing

    November 20, 2003

    iRATE Radio

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    Posted by Ernest Miller

    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

    Comments (0) + TrackBacks (0) | Category: File Sharing | Tools

    November 19, 2003

    Miller to Deep: What Derek Said

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    Posted by Ernest Miller

    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).

    Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

    The End of the Beginning: The Death of

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    Posted by Ernest Miller

    Instapundit, aka mild-mannered law professor Glenn Reynolds, laments the death of on Tech Central Station (Death of a Friend). I too, lament the death of 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 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).

    Comments (1) + TrackBacks (0) | Category: Copyright | File Sharing

    November 18, 2003

    Bundling Music with Cars

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    Posted by Ernest Miller

    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?

    Comments (0) + TrackBacks (0) | Category: File Sharing | Tools

    November 17, 2003

    Joke Isn't That Funny

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    Posted by Ernest Miller

    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 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?).

    Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

    November 10, 2003

    Slater on Napster at PSU - Round 2

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    Posted by Ernest Miller

    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.

    Comments (0) + TrackBacks (0) | Category: File Sharing

    LA Times Analyzes MPAA's New Sue-Em-All Strategy

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    Posted by Ernest Miller

    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."

    Comments (0) + TrackBacks (1) | Category: Copyright | File Sharing

    Sony's CD DRM Makes a Comeback

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    Posted by Ernest Miller

    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).

    Comments (0) + TrackBacks (0) | Category: Copyright | Digital Rights Management | File Sharing

    November 09, 2003

    Madster Seeks Supreme Court Cert

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    Posted by Ernest Miller

    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

    Comments (1) + TrackBacks (0) | Category: Copyright | File Sharing

    November 07, 2003

    Motion Picture Studio Chiefs Want MPAA to Adopt Anti-File-Sharing Litigation Strategy

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    Posted by Ernest Miller

    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.

    Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

    Desperate Music Industry Mergers

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    Posted by Ernest Miller

    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

    Comments (0) + TrackBacks (0) | Category: File Sharing | News

    Notes on Napster's Matriculation at Penn State

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    Posted by Ernest Miller

    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.

    Comments (0) + TrackBacks (0) | Category: File Sharing

    November 06, 2003

    The Problem with Incompatible DRM

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    Posted by Ernest Miller

    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?

    Comments (0) + TrackBacks (0) | Category: Digital Rights Management | File Sharing | Open Standards

    The iTunes Catalog is Cool

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    Posted by Ernest Miller

    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?

    Comments (1) + TrackBacks (0) | Category: Culture | File Sharing | Tools

    November 05, 2003

    Peer to Peer a Boon to Child Porn Investigations

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    Posted by Ernest Miller

    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.

    Comments (0) + TrackBacks (0) | Category: File Sharing

    October 31, 2003

    Knott's Pirates Offer a Solution to File Sharing

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    Posted by Ernest Miller

    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.

    Comments (0) + TrackBacks (0) | Category: File Sharing | Halloween | Oddities

    October 30, 2003

    RIAA Now a Proponent of Rating and Filtering

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    Posted by Ernest Miller

    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.

    Comments (0) + TrackBacks (0) | Category: File Sharing | Rating and Filtering

    October 29, 2003

    Civil Disobedience to Diebold Moves onto P2P Networks

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    Posted by Ernest Miller

    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.

    Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | File Sharing | Freedom of Expression

    Props for Jack Valenti

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    Posted by Ernest Miller

    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.

    ...continue reading.

    Comments (0) + TrackBacks (0) | Category: Broadcast Flag | Copyright | File Sharing

    October 27, 2003

    FCC to Regulate Routers - Critics of Broadcast Flag Get Mainstream Press

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    Posted by Ernest Miller

    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!).

    Comments (0) + TrackBacks (0) | Category: Broadcast Flag | Copyright | Digital Rights Management | File Sharing

    LAMP, MIT and Unintended Consequences

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    Posted by Ernest Miller

    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 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.

    Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

    October 22, 2003

    Nittany Newspaper Nonplussed by File Sharing

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    Posted by Ernest Miller

    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).

    Comments (0) + TrackBacks (0) | Category: File Sharing

    October 21, 2003

    Schizophrenic Reporting from the Guardian

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    Posted by Ernest Miller

    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.

    Comments (0) + TrackBacks (0) | Category: File Sharing | Oddities

    Announcing Gnomoradio

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    Posted by Ernest Miller

    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

    Comments (0) + TrackBacks (0) | Category: File Sharing | Open Source

    October 20, 2003

    Copyright Liability Insurance: A Response to Dan Fingerman

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    Posted by Ernest Miller

    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.

    Comments (1) + TrackBacks (0) | Category: Copyright | File Sharing

    Copyright Liability Insurance for File-Sharers: An Idea Whose Time Has Not Come

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    Posted by Ernest Miller

    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.

    ...continue reading.

    Comments (2) + TrackBacks (0) | Category: Copyright | File Sharing

    October 19, 2003

    Two Thumbs Up for the "Piracy Meter"

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    Posted by Ernest Miller

    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.

    Comments (0) + TrackBacks (0) | Category: File Sharing | Oddities

    RIAA Thrown Into Briar Patch

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    Posted by Ernest Miller

    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.

    Comments (1) + TrackBacks (0) | Category: File Sharing

    October 17, 2003

    Dynamo - Social File Sharing in Public Spaces

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    Posted by Ernest Miller

    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

    Comments (0) + TrackBacks (0) | Category: File Sharing

    Microsoft on iTunes for Windows

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    Posted by Ernest Miller

    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.

    What I find interesting is that the Windows spokesperson (Dave Fester, General Manager, Windows Digital Media Division), goes on to talk about how bad iTunes is because it is a closed system:
    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.

    Apparently, Windows users don't want choice in their operating system or media formats, but really care about it with regard to music. In any case, how long will this choice last, do you think? My guess is just long enough to smoke Apple once again. Microsoft doesn't mind supporting a variety of hardware vendors, but how long will any middleware service built solely on a foundation of MS technology survive?

    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.

    Precisely. Which is why I'm avoiding all these closed services like the plague. Ogg Vorbis Rules!

    Comments (0) + TrackBacks (0) | Category: Digital Rights Management | File Sharing

    Disbarring for Downloads

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    Posted by Ernest Miller

    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

    Comments (0) + TrackBacks (0) | Category: File Sharing | Oddities

    October 16, 2003

    Confusing P2P Pornography Arguments

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    Posted by Ernest Miller

    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 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 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.

    Comments (0) + TrackBacks (0) | Category: File Sharing | Freedom of Expression

    The Public/Private Distinction in Gaming Servers

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    Posted by Ernest Miller

    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).

    Comments (0) + TrackBacks (0) | Category: File Sharing | Games

    October 15, 2003

    How the Future of File-Sharing Might Be Like Sex

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    Posted by Ernest Miller

    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.

    Comments (0) + TrackBacks (0) | Category: File Sharing