A Copyfighter’s Musings

Todd Larsen sketches out a peer-produced webcasting service.  The basic idea is that the song selections would be chosen by user votes and ranked like Slashdot ranks commenters and comments.  The community would be the radio station.  According to Larsen, such a service could qualify for the compulsory license because it would still technically be a non-interactive service.  It’s a very interesting paper and a great idea.

Filed by Derek Slater at 10:37 am under General news
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Shawn Fanning’s at it again.  I highly doubt that the system would work such that, once songs are identified, downloads are blocked.  It’s more likely that until a song is identified by its fingerprint, it wil not be available on the system. Otherwise, you’re still allowing the infringing downloads of unlicensed content, and, under Napster, you’d be responsible for blocking it.  Of course, this is assuming that this system will ever come to fruition.

BTW, note this quote at the end of the story: “We had a very similar idea run past us,” said LimeWire Chief Technology Officer Greg Bildson. “We basically ended up not following up on it. It is interesting, but we’re not interested in building filtering and any centralization into our client.

One way to look at that statement is that they didn’t want to run the legal risk of centralization.  But Limewire has promoted decentralization for technical, business, and philosophical reasons.  By being open source, they allow for a decentralized development effort, and they have rewarded volunteer programmers.  I dig it.

Filed by Derek Slater at 10:31 am under General news
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As Frank notes, this is a must read from Cory.  Check out the original Scoble post and his follow-up.

What amazes me about Scoble’s follow-up comments is that he doesn’t address any of Cory’s criticisms.  Though I haven’t read every blog that responded to Scoble (and obviously cannot read the emails he received), I’m willing to bet that Cory’s points are among the most meaningful and important about DRM – they certainly are to me.  SethS said it in a slightly different way a few months ago: “Interoperability isn’t a popularity contest. It’s about the answer to this question: What does a prospective implementer have to do in order to make the implementation work? ‘Read the public specification’ is the right answer.  Answers involving signing contracts and paying money are the wrong answer.”  The closest Scoble comes to addressing these points is his repeating that if you want to buy music legitimately, you’re going to have to accept DRM, so get over it.

One response is simply to point back to Cory’s sentiment: do you mean we should get over a future where media products are by definition going to be less usable?  Another layer to this is that people cannot simply get over this because it is a confusing mess.  I’d say the average person finds the format wars incomprehensible – why a Napster song doesn’t work on an iPod and an iTunes song doesn’t work on a Dell player doesn’t make sense.  Not only is it just plain difficult to understand, but people are already accustomed to an interoperable, MP3-saturated world.

So you say they will become accustomed over time.  When? Why?  How will consumers become accustomed to a world of fractured formats, where licensors control both the record and the record player?  How will people become accustomed to a digital world in which you have to rebuy all of your software players and music catalog whenever a better format, player, or service comes out? Say, five years from now, Apple comes out with a better codec, hardware player, software player, all the WMA compatible products that Scoble relishes.  You’re stuck with what you’ve got. If you’re gonna tell me that that’s Apple’s fault and not also MS’s, I think you’re dead wrong.  Would MS be able to let people migrate to someone else’s players, so that people would become accustomed to them and probably their competing codec?  Possibly – but we won’t know in advance.  It’s up to MS and Apple.

And here’s another thing: what about those who are calling for an end to this format war? Those who speak of “open DRM” that is not used as a “competitive weapon.”  It remains to be seen what “open” will mean, but theoretically anyone will be able to create compatible players.  Why does Scoble not point to these as superior even to MS’s DRM?  They seem like the least likely to lock someone in.  So why isn’t that an improvement?

Filed by Derek Slater at 9:30 am under General news
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The Yale Information Society Project will be hosting a CyberCrime and Digital Law Enforcement conference  at Yale Law School, March 26-28, 2004. There’s also a writing competition and a call for papers on CyberCrime and Digital Law Enforcement.

Filed by Derek Slater at 5:15 pm under General news
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Nevermind all that politicking and horse-racing: This is cool (via Jason). Very silly, but also cool.  They’re taking a currently important moment in the cultural landscape and (re?)defining it from their points of view.   I wish these sorts of remixes could happen for other things as well.  (Maybe, for better or for worse, it’ll become part of the political lexicon like “I paid for this microphone” – with, probably, the opposite consequences for the speaker.  The remix probably gives it more staying power, because it puts a name and a context – a “hook”? – to what is otherwise an un-replicable sound – a bizarre sound, a memorable sound, but just a sound nonetheless.) (BTW, this is not meant as a comment on Dean.)

Filed by Derek Slater at 2:31 pm under General news
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Lots of spin, but still worth a read (see here for a summary from News.com).  Apparently, lawsuits against file-sharers has already started to a much lesser extent, but more are on the way.

I am quite interested in Loudeye’s plan to be the US version of OD2.  OD2 makes some sense as a business model because they are servicing many different countries and thus many different markets. They were also basically the first on the European scene.  Loudeye’s only going to be servicing the US, it seems, and the market is already beginning to fill up. What is the target audience for Loudeye’s service?  How many more iTunes can the market hold, and how many more iTunes will people want to create?  With small margins, why and how would someone be able to pay Loudeye?  How much flexibility will there be in the Loudeye back end?  Are they maybe going to aim at segments of the music market that are not currently served by the current, major-label-heavy offerings?

Filed by Derek Slater at 2:22 pm under General news
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P2PNet reports – the interesting aspect is the supposed privacy protections.  Sounds kinda like Freenet in that you only know who your neighbours are, but it doesn’t seem to have an analogous caching mechanism.  It also sounds similarly slow.  Something to look into a bit more…

Filed by Derek Slater at 12:27 am under General news
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News.com reports here; EFF’s response here. 

Will settlement costs actually be higher? will that encourage more people to fight the suits? will these details even matter for the aggregate, long term effects on file-sharing (that is, will we see more than an unconvincing reported decline)? 

Farhad Manjoo does a nice job of covering the current situation and the relevant vagaries.  Here’s one interesting quote and a sentiment I want to investigate more:

“‘There are in total billions of files acquired on file-sharing services every month. Compare that with iTunes’ stated ambition of getting 100 million songs in a year. It’s so slight it’s a fraction of a percent. It’s like saying Apple is going to save the music business because they’ll allow people to get 999 files and pay for one.’ [CEO of Big Champagne Eric] Garland says that if iTunes sold ’10 billion songs this year it might be neck and neck with file sharing. And for the Apple iTunes store to marginalize file sharing the way file sharing has marginalized CDs, Apple has to sell trillions of songs. File sharing is a powerful force.'”

Filed by Derek Slater at 2:16 pm under General news
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See here for info on OD2’s modest growth this year and hopes for the burgeoning European market.  The article also notes that both iTunes and Napster will likely go overseas by this summer.

Filed by Derek Slater at 9:53 am under General news
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Coke debuted its UK digital music store, with a back-end from the major player in the European market, OD2.  Coke’s like the old PressPlay, allowing people to buy packs of downloads to get a cheaper rate.  If I got my conversions right, you can stream any song for 20 cents and buy songs and albums for as low as $1.4 and 11.4, respectively. 

Filed by Derek Slater at 5:00 pm under General news
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DRM Watch is more suspicious
of Real Player 10’s interoperability with iTunes songs, asserting that
it might violate the DMCA.  I still don’t understand the mechanics
of it precisely (see previous post and News.com article) – I’ll try to find more out later.

Brad Hill now has his review up. Not quite a ringing endorsement: “RealPlayer10
Music Store is a heinous experiment in proprietary formatting that,
even if it worked as advertised, would harshly constrain consumer
value. Once again, RealNetworks is taking money for (or through)
a broken beta program.”

Only slightly related: Here’s a line from the DRM Watch article that
exemplifies how twisted the concept of fair use has become: “No one would argue that
this [playing an iTunes Store song in Real Player] is unacceptable
behavior or not ‘fair use.'”  For fair use to enter the picture,
you have to implicate a right of the copyright holder.  What right
does playing a song implicate?  Yes, you’re copying the song into
RAM, but that’s true whether you use Real Player or iTunes. 
Playing a song in a player of your choice hasn’t been – and, I’d say, shouldn’t
be – a copyright issue.

This is a point I’ve talked about before,
and one that Professor Lessig stressed during his iLaw talk last
year.  To put it in his terms: forget fair use; what happened to
“free use”, use that copyright doesn’t touch in the least? Today copyright holders have a right of access,
a right to use, because of the DMCA.  Not only does that set aside
the fair uses we have, but it also eliminates many of the free uses.

In most discussions, though, fair use takes center stage.  Fair
use is now the umbrella term for all uses that are not
infringement.  And thus all uses are seemingly treated as
conditional, riding on a case-by-case balancing test or copyright
holder authorization.  But there used to be this other zone of copyright too.

To some extent, this is all just semantics – people who say “we need to
protect fair use” often mean that we should move more fair uses into
the category of free uses, perhaps by legislating clear, affirmative consumer rights. 
That’s all well and good, but it’s worth remembering that having this grey
area of fair use is also good.  We need a balancing test, too, to deal with evolving uses.  So, I think, both conceptually and legally, it’s worth retaining this separation of fair use and free use.

Filed by Derek Slater at 3:32 pm under General news
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The other day, they hosted Howard Bashman (they should be posting video).  Jason just pointed out to me that they’re bringing none other than SCO‘s Darl McBride to campus on Feb 9, 2004.  And March 19-20, they are having a symposium entitled “Evolving Media: Emerging Digital Technologies and the Legal Response.”  If you’re in the area, these are definitely worth checking out – they should also be webcast.

Finally, you can access their newest journal at the end of the month.  Included in this issue:

Articles

• Impose a Noncommercial Use Levy to Allow Free Peer-to-Peer File Sharing – Neil Weinstock Netanel
  
• Modularity, Vertical Integration, And Open Access Policies: Towards A Convergence Of Antitrust And Regulation In The Internet Age – Joseph Farrell & Philip J. Weiser
  
• Oasis or Mirage?: Efficient Breach as a Relief to the Burden of Contractual Recapture of Patent and Copyright Limitations – Daniel R. Cahoy
  
• Nanotechnology and Regulatory Policy: Three Futures – Glenn Harlan Reynolds
  
• Catch Me If You Can: Serving United States Process On An Elusive Defendant Abroad – Yvonne A. Tamayo
  
• The Judicial Doctrine of Equivalents – Darcy August Paul

Note

• Note: Dormant Commerce Clause and the Internet — One Internet, One Law? — American Booksellers Foundation v. Dean, 342 F.3d 96 (2nd Cir. (Vt.))
  
• Note: Trespass to Chattelsand the Internet: Right Answer? Wrong Question? Intel Corp. v. Hamidi, 1 Cal. Rptr. 3d 32 (2003) 
  
• Note: The Future is Now — Control of the Aftermarket Through Copyright in Lexmark International, Inc. v. Static Control Components, Inc.

Filed by Derek Slater at 2:06 pm under General news
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The Supreme Court denied cert to Aimster today (via Ernest).  As I’ve said before, I think this is good news.  We’ll see if they actually take it to trial.

Filed by Derek Slater at 1:50 pm under General news
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IP Justice reports: “In an important victory for Italian consumer rights, an Italian court has rejected the seizure of Sony Playstation game consoles that use modified chips to permit unauthorized uses of the game systems. The case is one of the first to be brought in Italy under the new European Union Copyright Directive (EUCD), which is modeled on the controversial US Digital Millennium Copyright Act (DMCA).”

The judge tells it like it is – Sony’s protections were not about preventing piracy, but about preventing competition, innovation, and consumer uses.  He makes a distinction between “machine sellers” and copyright holders under the Italian DMCA, affirming implicitly that copyright law wasn’t meant to protect the former in this way. (I don’t know the law well enough to say without further reading if he got it right.  See here for more on Italy’s DMCA.)

Filed by Derek Slater at 10:34 am under General news
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The case is over, the studios agreed not to sue these customers, but they can certainly sue in the future – the court did not rule on the merits.

Filed by Derek Slater at 9:57 am under General news
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