A Copyfighter’s Musings

1. Looks like Loudeye is trying to becoming the U.S. version of OD2. OD2 has, so far as I know, been very successful, dominating the European digital music market.  But what will Loudeye contribute to a market that already has plenty of other services?  What will Loudeye add aside from a Walmart/Coca-Cola/Virgin Records sticker on top of an iTunes look alike?

2.  A couple of weeks ago, I mentioned Mark Lemley and R. Anthony Reese’s Stopping Digital Copyright Infringement Without Impeding Innovation.  They suggest three approaches for doing just that.  Though they say all the approaches should be used together, I doubt that could be the case.

The first approach I have not run across before.  Here’s how it’d work: say you’re a centralized P2P service.  You can elect to let an arbitration panel handle cases of alleged infringement.  Whatever the panel rules, you have to enforce. The panel would mainly decide cases that are straightforward infringements.

This sounds sorta like an extension of the 9th circuit’s original ruling in Napster.  The court said that, when Napster received knowledge of an infringement, it had to block that infringement. At the same time, it repeated that that blocking must only be done within the system’s architecture. It recognized that Napster could not read the content of files and only had access to the file titles listed in its search index.  Why, then, was Napster shut down? Because, during the remedial stage, the district court basically forced Napster to anything in its power, including adding filters that could read the MP3 files, to block all infringement. Napster could not block all infringement given the architecture of its system.  On appeal, the 9th circuit did not disturb the district court’s ruling.

Lemley and Reese’s arbitration system would only lead to blocking of particular infringement as sorted out in the arbitration panel.  Furthermore, it would make sure that service providers do not have to judge infringement themselves, so cases that might not be fair use can be sorted out by some neutral third party.

But this seems like a solution in search of a problem to some extent.  Yes, we’d be able to preserve innovation in centralized P2P tools and such. But we wouldn’t stop infringement on services that have no centralized control and can’t block infringers.  So, while this prong of attack seems helpful, I doubt it’ll ultimately be that useful.

To remedy this, the authors suggest using something like Netanel’s system.  But their implementation seems impractical – they would make it opt-in for services; decentralized P2P would still preserve its immunity under Sony.  Moreover, because the service would only apply to a narrow class of technologies, the levy would have to be high, thus forfeiting the benefit of the way Netanel (and Fisher) design these tax schemes.

So we’re left with one final prong: civil and criminal penalties for direct infringers.  My point here is not to discuss whether that should be pursued. Rather, I want to point out that the multipronged attack discussed in the article won’t really be that useful in stopping infringement. I agree that we should find a solution that does not impede innovation, but, as far as policy solutions go, it seems more likely that we will either have to fully pursue an ACS or rely on something direct infringement suits.

3.  So, has anyone sorted out what this Phillips DRM is all about? Here’s what I don’t get: if you know how to unlock the DRM, can’t you create a generic decryption utility?  What can Phillips do to make sure that you only implement it as part of a software or portable player?  And if Phillips does force you to do so, is this DRM really “open”? Yes, they’re going to license it to whoever, but there will still be many restrictions on that license.

4.  From pho: Kevin Doran has an awesome digital media news site.

Filed by Derek Slater at 4:41 pm under General news
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