The NY DA has, no great surprise, filed an appeal of Judge Baer's dismissal of the case against Jean Martignon for selling bootleg recordings. J.D. Martignon, a NYC record dealer and owner of the Midnight Record store in Manhattan, was indicted under a 1994 law that made it a crime to ever sell a bootleg recording of a live performance. The problem is that the law didn't specify a time limit; thus, it gave live recordings perpetual protection, something that Martignon's lawyers successfully argued was unconstitutional.
Remember that SCOTUS, in upholding the CTEA, noted that even though the law provides for very long copyright protection it is still time-limited and thus technically not unconstitutional. However, the anti-bootlegging statute (formally 18 U.S.C. sec 2319A) lacked this and thus was found to be a violation of Congress' copyright-granting authority.
Posted by dr. wex on October 29, 2004 10:00 AMThe RIAA handed out gold, platinum, and multi-platinum awards, filed 750 new lawsuits, named 213 specific lawsuit targets, and got slapped with new restrictions on its jihad. Bit of a busy day.
OutKast took home the first-ever download multi-platinum for their 400,000+ downloads from services including iTunes, Microsoft Music, Real Networks and amusingly Roxio's re-launched Napster. They also gave five more platinum awards (200,000+ downloads) and 45 gold awards (100,000+).
These awards are part publicity and part necessity. If the Cartel wants to call certain music services legitimate then it needs to track and reward sales on these services as it tracks and rewards physical retail sales. Of course, everyone recognizes that this isn't where the real popular music moves, but it's important to maintain appearances.
Back in the courtrooms, the RIAA filed another 750 new "John Doe" lawsuits, per usual. Unlike the previous round only a few (25) of these are said to target users on college campuses. Also, having acquired the identifying information but not the supplicant compliance it requires, the RIAA turned 213 of its previous John Doe lawsuits into suits against named individuals.
Finally, the jihad suffered a small setback when Pennsylvania district Judge Cynthia Rufe ordered that the RIAA had to provide greater privacy and due process protection to its targets. In specific, people have to be given a notice explaining their legal rights and they must receive this notice before their ISP can be compelled to hand over their information.
The order only affects ISPs in eastern PA, but may serve as a model to other judges seeking to establish a little more balance in the ongoing proceedings.
Posted by dr. wex on October 29, 2004 06:14 AMI haven't found a second source to verify this story, so treat with a grain of salt, but here goes:
According to Yahoo! News, Homeland Security agents paid a business call on a toy shop and ordered a specific toy removed from shelves. Why, you may be wondering, and what does this have to do with Tech IP? Well, it seems that the cause of the action was an alleged trademark infringement complaint.
Never mind that the complaint was likely bogus, can anyone give me a good reason why the Department of Homeland Security needs to have an "intellectual property rights center"?
Posted by dr. wex on October 29, 2004 05:52 AMNormally we think of Business Week as a publication dedicated to the enshrinement of the capitalist status quo. So when the phrase "copyright wars" pops out of a bizweek article, one has to wonder what's up.
The story by Heather Green covers a variety of chilling effects that have fallen out of the copyright wars. This includes impacts on teaching and research, stifling of new product innovations, and a general sense that things are out of balance.
The story doesn't contain much new for readers who've been following the Wars for the past few years. But it is a sign of how far the Cartel may have overreached when a notoriously rah-rah businesss publication is willing to print overt discomfort with the intellectual land-grab regime. More and more I'm convinced we'll win this war, one slow painful step at a time. Count this as a step on that road.
Posted by dr. wex on October 28, 2004 07:26 AMThe temptation to make Red Sox analogies is all but irresistible here. After losing massively in the early going, the freedom-loving forces of Public Domania have racked up a string of victories, to which the 6th U.S. Circuit Court of Appeals has just added another one, overturning the preliminary injunction in Lexmark v. Static Control.
This is the case about printer cartridges and their control chips. Lexmark has attempted to use the DMCA's section 1201 (anti-circumvention provisions) to stop Static from making compatible chips. Lexmark wants to continue its monopoly on the highly profitable toner cartridge business; Static Control wants to make compatible cartridges.
The case isn't decided at this point - judges from the 6th just overturned the preliminary injunction and sent it back down for further consideration of the issues. Static Control has two defenses to argue now. One is the preferred "fair use" defense; second, the DMCA itself contains exemptions for "interoperability." The case is almost certain to wind up back at the 6th unless Lexmark decides it's cheaper to settle than continue.
Posted by dr. wex on October 28, 2004 07:23 AMWhen Capitol Hill doles out cash favors to Congresscritters' favorite contributors, it's called 'pork.' This isn't precisely that, but it's certainly an interesting look at how laws are constructed to protect certain special interests as well as advancing certain moral agendas.
In this case, the law is the "Piracy Deterrence and Education Act of 2004." In the main, the purpose of the law is to make it a crime to take a camcorder into a theater, film the screen, and then post that to the nets. So far so good.
However, there's some special language in there protecting a company called ClearPlay. These folks make a device that turns Hollywood films into more "family friendly" fare by editing out scenes that ClearPlay finds too risque'. Essentially it's post-release editing, and Hollywood wasn't happy about it. In fact, ClearPlay has been on the receiving end of at least one Cartel lawsuit.
At the same time that Congress has taken steps to protect nookie-nukers it is also attempting to outlaw commercial-skipping features such as those found in TiVo players. That company's lawyers are attempting to work with the compromise committee now - the Senate passed a version of the bill that sticks more closely to the original intent, without the pork provisions.
And here I thought I was an angry cranky man. Charlie Demerjian is way angry, and he's written a pretty complete screed on why DRM is bad for consumers, why the electronics companies are crawling into bed with the Cartel (hint: it's green and folds) and why right-thinking individuals ought to be righteously pissed. It's long, but worth reading.
Posted by dr. wex on October 26, 2004 06:10 AMTwo quick notes...
A group of five researchers primarily from the University of California have put out a new study arguing that P2P file sharing is not only back, but it never went away.
They assert that their measurements are more accurate by virtue of being ore complete. They apparently managed to measure traffic of all the popular P2P protocols (not sure how they measured IRC traffic, but I digress). In addition, they claim to have reverse engineered the protocols, permitting examination of traffic payloads.
And, since we're trading things anyway, Lessig's latest idea is to have us trade political speech - ads, in effect. The P2P Politics site is presently quite slow, resumably near-slashdotted and since it's serving up rich content it has to be urting for bandwidth, despite generous sponsorship from the Internet Archive. So far only pro-Kerry content has been submitted.
The idea of sending these things around in email is quite horrifying - email is too bloated as is. With luck people will just send URLs... yeah, right.
Posted by dr. wex on October 25, 2004 12:49 PMThe NYTimes is reporting rumors that crusading Attorney General Eliot Spitzer has served subpoenas to the four major record corporations - the Universal Music Group, Sony BMG Music Entertainment, the EMI Group and the Warner Music Group. In all cases he is said to be looking for evidence of what used to be called "payola" - the practice of paying for on-air play time.
These days, as has been well documented, payola is back in different guise that appears to skirt the letter of the law and so is blatantly practiced. Middlemen, funded by the record companies, pay for "advance copies" of station playlists. They then turn over information to the companies and are compensated for each song that appears.
Whether Spitzer will be able to go after the middlemen ("independent promoters") or their Cartel paymasters remains to be seen. But gods the record execs have got to be hoping he gets ambitious and tries to run for some high political office.
Posted by dr. wex on October 22, 2004 01:27 PMThis is not strictly IP related so I probably won't be covering it much, but I did want to note that the the NCSF and lead plaintiff Barbara Nitke will begin their challenge to the artistic expression restrictions of the Communications Decency Act (CDA) starting at 9A on Wednesday, October 27 in the US District Court on 40 Centre Street, 15th floor, New York City. If you are local it may be a good show.
Note that the issues raised in this suit are complementary to suits previously won by the ACLU and EFF against other CDA provisions.
Over on TidBits, Adam Engst has a long piece about the flailings of Rolex's apparently clueless lawyers in response to the recent rash of fake-watch spams.
The original is pretty long; the gist is that the spams appeared on the Web archives of a list discussing spam-blocking. Rolex's trollbots must have found the archives and alerted the lawyers, who delivered a cease-and-desist letter to the people trying to fight the spam.
This is moderately clueless but not as surprising as Adam seems to make it out to be. Yes, it would be nice if these people didn't wave the DMCA around like the big burly club it is. But at this late date it can't be that big of a shock.
Posted by dr. wex on October 22, 2004 06:17 AMThe people at RLG (Research Libraries Group) have put out a free (no ads either) search service at
http://www.redlightgreen.com/
The search runs over about 120 million library book and article descriptions. Matches are weighted by, among other things, popularity in libraries so you're more likely to be able to find matches higher up on the results list.
For any single result you can get the info out in popular citation formats including MLA, APA, etc. This alone is a big boon for students and other paper-writers.
You can search by keyword, author/title, or ISBN. Advanced search permits non-English and year of publication specification.
At the very least it's a sophisticated Web card-catalog application that I would have loved to have as an undergrad. I haven't played with it enough to know what else is under the hood.
Personal, non-commercial use only; no searchbots.
This application brought to you by the public domain and publicly funded libraries.
In what I choose to see as a vindication of the ASCAP model a global deal appears to have been struck between Web radio stations and content owners. The deal is formally with the Radio Music License Committee, which represents about 12,000 big Web music streamers. So this deal is not a final solution, nor does it solve the problem for the little guys. But at least it appears to give a framework that lets Webcasters separate online royalties from fees paid to ASCAP for stuff that goes out over the airwaves.
The deal itself is huge, at over US$1.7b and covers about 7.5 million titles for which ASCAP and more than 60 affiliated foreign performing rights organizations handle copyrights. Unfortunately it's not revenue-based, which means it's not going to work for small not profitable Webcasters, but it's still a big step forward on the road to overall licensing.
http://shorl.com/didovugabave (CNET)
I can't even begin to plumb the layers of irony in this one.
Disney may find itself on the receiving end of a lawsuit filed by Great Ormond Street. This is the children's hospital (in the UK) that holds the copyrights to the Peter Pan character and material. Disney's subsidiary Hyperion Books published a Peter Pan "prequel" called Peter and the Starcatchers by Dave Barry and Ridley Pearson. (Yes, that Dave Barry.)
Ormond Street argues that it was given sole control of the character in 1929 by J.M. Barrie. See for example Finding Neverland, which has its UK premiere this week. Ormond Street will get royalties for scenes from Peter Pan that are portrayed in the film.
By contrast, they get nothing from the Hyperion book. Why? Because Disney is claiming that Peter Pan went out of copyright in the US. The copyright expired before the (get ready for it) Copyright Extension Act of 1998 went into effect. You remember copyright extension, don't you? Disney's pet project for protecting The Mouse and the public domain be damned.
So now we get to watch the all-American nice family company gouge money from sick kids over a technicality in intellectual property law. God is an iron.
Posted by dr. wex on October 15, 2004 12:14 PMPop quiz time: Who is America's biggest CD retailer?
If you said "Tower" or any of the other usual chain megastores you're way off. America's biggest CD retailer is Wal-Mart.
Now, what is Wal-Mart known for? Low prices. On everything. When Wal-Mart customers don't get low prices, they complain. When customers complain, Wal-Mart flexes its enormous muscles and suppliers' necks pop like so many Bazooka bubbles on the lips of teenagers.
Except these suppliers are the Cartel, who have used every trick in the book (including illegal ones) to keep CD prices high. They sell the CDs to Wal-Mart (and Target and other mass retailers) at about $12 per disk. Stores that retail the disks for less do so as a "loss leader" - a way to get people in the door where their total purchase can make up for the couple of bucks lost on the disk sales.
However, losing money is not something Wal-Mart does. It wants to retail CDs at $9.72. And it has a very long history of playing hardball with suppliers that won't give it what it wants. Apparently in this case it threatened the Cartel that if cheaper CDs weren't forthcoming, Wal-Mart stores would start replacing CD rack space with DVDs and video games. These things sell like hotcakes at cheap prices and make money for Wal-Mart. See above.
Result - cheaper disks to Wal-Mart, $9.72 CDs on Wal-Mart racks, and relative calm, for now.
The Catch-22 in this is that Wal-Mart sales are also probably bad for the consumer, since they stock far fewer titles, no back catalog, and have no space for new or developing artists. Wal-Mart is part of the mass production machine for mass produced manufacturing of mass product to a mass audience. The fact that this even matches up slightly with the music business is appalling.
The Rolling Stone article has a nice in-depth exploration of the "bad marriage" between Wal-Mart and the Cartel. It's hard to feel sorry for either party in this sumo match; I reserve my sympathy instead for the creators who have to cope with an industry like this. As the table at the very end of Warren Cohen's story shows, they're still only getting about 10% of the money we spend...
"...where the money goes for a new album with a list price of $15.99.
$0.17 Musicians' unions
$0.80 Packaging/manufacturing
$0.82 Publishing royalties
$0.80 Retail profit
$0.90 Distribution
$1.60 Artists' royalties
$1.70 Label profit
$2.40 Marketing/promotion
$2.91 Label overhead
$3.89 Retail overhead"
Source:
http://www.rollingstone.com...
As I've been saying for years, this SCOTUS does not like intellectual property cases. The Cartel are desperate to have Betamax overturned and
the freedom-loving forces of IPania (OK, I made that up but it sounds good, doesn't it?) are desperate to get some judicial brakes applied to the full-court press against the public domain. Neither side is going to get much joy this court season either.
First up, cert has already been denied for _RIAA v. Verizon_. See ya! Denial at
http://supct.law.cornell.edu/supct/html/101204.ZOR.html
Denial is without comment, and you can get basic factual commentary from the AP
Really not much to say. Denial of cert is not precedent, but one can read into the tea leaves the likely opinion of the Supremes that Verizon et al are correct in their interpretation of the DMCA provisions. The Cartel will need to continue using John Doe warrants until it can show cause to get subscribers' information.
The Cartel is also trying to get cert for its appael against the loss to Grokster/Streamcast. This is the 9th Circuit case that was decided in August. As noted elsewhere, the reasoning in the 9th and 7th Circuit decisions differs slightly. However, it's not clear that the difference would be enough for SCOTUS to grant cert. As the NYTimes piece points out, even the 7th's injunction against Aimster upheld the basic principles of Betamax.
Posted by dr. wex on October 13, 2004 10:32 AMSUPREME COURT REFUSES TO CONSIDER ISSUE OF INTERNET PRIVACY
Associated Press
The Supreme Court on Tuesday declined to hear a dispute over whether Internet providers can be forced to identify subscribers illegally swapping music and movies online. The subject, however, may be back at the court soon. . .
Read The Appellate Decision That Remains Good Law (In Re: Verizon)
Who Is Verizon’s Copyright Lawyer?
Who Are Some Of The RIAA’s Lawyers?
Posted by AZ on October 12, 2004 09:54 AMBlizzard Entertainment has successfully used the DMCA's anti-reverse engineering provisions (as well as contract terms in the battle.net EULA) to get a declaratory judgement shutting down BnetD. The latter, run by the ISP Internet Gateway on behalf of three individuals (Ross Combs and Rob Crittenden, and a systems administrator, Jim Jung) was a hacked version of Blizzard's battle.net servers that allowed players to connect their games to the server and face off as they do on battle.net servers themselves.
The EFF, which had provided counsel for the defendants, argued that the open-source BnetD was covered under fair use provisions and that the EULA and ToU of battle.net were invalid and that legitimate purchasers of games should be permitted to seek alternative ways of meeting up. An appeal is planned, they say.
Decision:http://www.freedom-to-tinker.com...
Coverage:http://www.gamespot.com...
Blizzard's PR:http://home.businesswire.com...
EFF Objections:http://p2pnet.net/story/2601
On the other hand, a California-based Federal judge has ruled that Diebold overstepped its bounds in attempting to use the DMCA. Specifically, Diebold Election Systems has been ruled to have attempted to use the DMCA to stifle legitimate free speech.
The story begins about a year ago when, you may remember, a group of Swarthmore College students posted about 13,000 internal Diebold memos. The memos suggested that the company was aware of security flaws in its voting system, flaws it continues to deny publicly. Diebold responded with a series of cease-and-desist letters threatening DMCA litigation and ordering that the memos be taken down. Once again the EFF stepped in onthe defense and after enough bad press Diebold backed down and withdrew its threats.
However, the students then counter-sued and that is the suit that was settled here. The judge ruled that Diebold "knowingly materially misrepresented" (that's "lied" in plain English) its position. The students had not infringed Diebold's copyright, Diebold knew it, and went ahead anyway.
Now what's interesting about this to me is two things. First, this is the only time I know of where the threaten-and-withdraw tactics that the Cartel has made so much use of have been successfully challenged. It's aparticularly vicious form of bait-and-switch that has a potentially very chilling effect on speech if you think you might get sued for doing something like whistleblowing.
Second, the students used a provision of the DMCA itself (known as section 512(f)) in pursuing their claim. 512(f) makes it a crime to use DMCA takedown threats in a known false way. Wendy Seltzer, the EFF attorney, has her eye squarely on the ball when she says:
"We were out to crack down on the misuse of copyright threats."
Go Wendy! http://www.wired.com...
Posted by dr. wex on October 8, 2004 10:40 AMFollowing in the astonishingly successful footsteps of the RIAA, the overseas groups IFPI (International Federation of the Phonographic Industry) and BPI (British Phonographic Industry) have filed more lawsuits against people they accuse of illegally sharing files. The suits have been filed in the UK, France, and Austria. This follows on a spate of civil and criminal suits in Germany, Italy and Denmark.
Someone should really make up a "Cartel World Tour" T shirt.
In an astounding display of verbal cluelessness, BPI chairman Peter Jamieson managed to utter the phrase "These people are not our customers." I hardly know where to begin with that sentence, Peter.
Do you think maybe they're not your customers because their love of music came out of nowhere? Perhaps they had spontaneous eruptions of random downloading. Perhaps they're not part of that highly desireable 25-30 male with large disposable income demographic you spend so much money marketing to (oops, they are).
I recognize that one of the first necessary steps in war is to demonize and dehumanize your opponent, but this is ridiculous.
Posted by dr. wex on October 7, 2004 01:08 PMIt looks like Canada may be moving in the direction of protecting freelancers' intellectual property rights along the lines of the US's recent Tasini case. The Ontario Court of Appeal upheld a ruling asserting that freelance writers' rights were violated when Canadian newspapers (re)published their articles online without getting explicit permission beforehand.
In the US we've seen that the effect of this has only been to cause companies to pull content out of their archives, rather than actually compensate the creators. I'm guessing a similar move will soon be afoot in Canada, though there is at least one more level of appeal left there.
Bloomberg story:
http://quote.bloomberg.com
Decision:
http://www.ontariocourts.on.ca
In my "Sound and Fury" entry I asserted pessimistically that attempts to influence the WIPO's position and politics was pretty much doomed. EFF, various NGOs and the Open Sourcers would have it otherwise.
They've gotten the WIPO to adopt something called a "development agenda" that acknowledges the need for balance in worldwide policy on trademark, copyright, and patents. This is still a far cry from promoting actual fair and balanced policies but at least admitting that things are out of balance is a first step. Be interesting to see where it goes from here.
EFF story link:
http://www.eff.org/news/archives/2004_10.php#001966
I've just finished posting the October issue of FindLaw's Modern Practice.
Some highlights include: Jason Cody's Legislative Developments Targeting Pop-Up Ads and P2P; Anita Ramasastry's piece on the Proposed E-Discovery Rules, and an article on Linguistic Pattern Matching technology by Joseph Howie. Have at it.
Posted by AZ on October 4, 2004 03:33 PMI can't decide who's more pitiable - the RIAA, which continues to follow an ineffectual and hostile strategy - or Fred von Lohmann who not only has to face these goons day in and day out but has to write pieces like his latest on law.com pointing out the blindingly clear. The jihad is not working. It's bad public relations to be suing your customers. It's barely paying for itself (good tidbit there - I had calculated it as a net loss). And by the way, file sharing is still skyrocketing, particularly outside the US where the Cartel's reach is much less.
von Lohmann offers up the same litany of facts that we've all become familiar with. Five hundred new lawsuits a month, most people settle, American music swappers now number somewhere north of 60 million, etc. I don't imagine von Lohmann expects some Cartel exec to read one of these op-eds items and suddenly have a stunning insight "Oh! You mean we could make money off our customers doing what they're already doing instead of flailing at them?" No, it's more of a matter of hearts and minds. Somewhere out there in the future is a turning point in the public consciousness. We'll get there, one restatement of the obvious at a time.
And add one more voice - his - to the "use the ASCAP model" crowd. I wonder if I can spread that meme any better than I spread the "call it a Cartel" meme?
Posted by dr. wex on October 1, 2004 06:48 AMGot a forwarded announcement for a new PAC (Political Action Committee) with the self-proclaimed mission of "...promoting the public interest and technical innovation through balanced intellectual property policy."
Stated goals include:
In a move that surprised precisely no one, the RIAA is asking for en banc rehearing on the recent 6th Circuit ruling in Bridgeport Music v. Dimension Films. As I noted at the time, the bright line ruling is not going to make anyone happy as even the Cartel realizes the ruling will cause far more problems than it solves.
Some angry people out there. A quick poke at a couple of them:
First up we have an angry but hugely ineffectual pile of protestors at the WIPO meeting. Numbering over 500 by some counts, the various scientists, economists, and "legal experts" want the WIPO to change its charter. Somehow they think they're going to dig the WIPO out of the hip pocket of the Cartel and stop it from pushing more and more IP restrictions around the world.
The biggest backers of the measure, Brazil and Argentina, have a set of ultimately valid concerns - the point is that IP protection should not be an end unto itself, but rather a means to effect useful ends (such as compensating creators). Sadly, they've got absolutely no clout. The US doesn't want change, so it's not going to happen without a very large counterweight (something like the EU++) pushing for change. This will happen approximately three weeks after the Easter Bunny hops through the WIPO meeting distributing free range chocolate eggs to all and sundry.
An equally ineffectual, if more amusing, throwdown apparently happened at Digital Hollywood in Santa Monica, CA. There (we are told by Stefanie Olsen of CNET) P2P execs and audience members did their own Jerry Springer impersonations. On one side were Altnet and Morpheus; on the other Microsoft and Overpeer (maker of fake files to be distributed on P2P nets). As you'd expect, nothing was resolved and little more seems to have come out of it than a restatement of well-known positions. The P2P nets want to go fully legit, the Cartel wants them exterminated and ordinary consumers just want an easy and friendly digital music experience. Everyone agrees artists should be compensated; nobody agrees on models for how it should happen. I'm wondering how long we'll keep seeing stories like this.
Meanwhile, Karlheinz Brandenburg - the guy who more or less 'invented' MP3 format - is complaining that the proliferation of incompatible musical encoding formats and DRM schemes is doing more to impede the business than anything else. His point is fundamentally the same as above - if you make it too hard on people (like, even a little bit hard) they'll revert to free and open (if illegal) MP3s. A little less head-bashing and a lot more cooperation and user focus would go a long way.
In the "do something about it" camp continues to be Creative Commons, which opened a Canada branch recently in Ottawa. The goal, as before, is to permit people to craft strategies for content protection and use that suit the content and the marketplace rather than a rigid busines model. The biggest hope I see here is that educational institutions are starting to try this stuff out. If they do and we get tens of thousands of students exposed to and used to the ideas that could do a lot to break the stalemate.
I also think it's worth noting the degree to which Creative Commons is paying attention to the user experience. Their goal is to have a Web site where a novice can, with a reasonably few mouse clicks, create human-readable, lawyer-readable, and machine-readable forms of the same set of instructions.