A Copyfighter’s Musings

Far too cool.  Get your Wired CD lossless files and loops, mix and mash.

Filed by Derek Slater at 6:21 pm under General news
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This article reminded me to check out Mercora.  So far, I’m  pleased with it, despite some quality problems in the streams.  For those not familiar, Mercora enables P2P streaming of music just like an Internet radio station.  Users host the content, and Mercora pays all the licensing fees and apparently ensures that it meets the requirements of 17 USC 114.  You can search for what is currently being played and what songs are in someone’s library, but you don’t know specifically what will be played next.  The interface is decent – for each station, it shows artist information and provides a link to the album on Amazon.  Quality is variable, but at least you aren’t stuck with tons of commercials, as in the free version of Live365.

Still waiting for someone to implement Todd Larson’s Communicast, a peer-rating based web radio station.

Filed by Derek Slater at 5:15 pm under General news
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Ernest’s new show on Lexmark is up.  It was my pleasure to join in the fun, along with the most insightful Jason Schultz and Joe Gratz.

Filed by Derek Slater at 2:19 pm under Big Ideas
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Karl Lenz points to an interesting article about DRM in the Japanese mobile phone market.

I think Karl’s statement that the article says DRM works, contrary to arguments like Cory’s, is misleading and misunderstands Cory and others a bit.  The question is: does DRM stop piracy – does it stop the acquisition of unencrypted content over P2P/the darknet?  I would bet not.  Indeed, the article’s author quotes Cory on this point.  DRM still affects people who have purchased content through the phones, just as a single purchaser of an Apple iTunes song might have the skill to decrypt the file.  However, the DRM didn’t really keep that person from downloading the file illegally.  It’s only once they have chosen to purchase legally that DRM may have an impact.  On this latter point, the article also cites Ernest approvingly.

The paper does point to one way in which even unencrypted content’s acquirability might be irrelevant.  Many of the phones limit the file types you can play and send to friends.  Imagine a phone that can only play encrypted formats.  You could download all the MP3s off P2P that you want, but none of them would be usable.  In this case, one would expect DRM to be a stronger impediment to piracy.

However, there are a couple general reasons to think that such restrictions won’t help.  First, such restrictions may simply make users convert their unencrypted files into an encrypted format so the phone will recognize it.  In this way, users could still acquire files from the darknet for free.  You can gain all the benefits of using the phone without ever purchasing the file.  Also, note that, at this point, we’re really talking about people building hardware that can’t function in certain ways.  You can gain all the benefits of the phone, but if the phone is specifically built so that it lacks functions, you simply won’t be able to use those functions.  We’re still not really talking about DRM preventing piracy – illegally and legally acquired content simply have restrictions put on them once acquired.

The question also remains: will all technology makers stop innovating new uses and embed such restrictions in all their hardware?  This article notes that this is the trend in the phone market, where many producers use closed firmware to control what goes on their products.  At the same time, the trend in music portable players is away from this.  Even Sony is starting to include MP3 support.  And can one imagine the iPod without MP3 support?  Technology makers who allow playing of unencrypted formats and innovate new uses will continue to have a competetive advantage  – crippling technology and including usage controls serves no clear benefit for the consumer when they have the option to buy feature-rich products with unencrypted format support.

Of course, one can imagine a tech mandate that enforced restrictions across the market.  Or a liability standard that tended toward similar results.

Filed by Derek Slater at 9:29 am under General news
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Jason reports it (and corrected me within minutes of my publishing this post with an erroneous headline!); opinion here.  More to follow in a mo’.

Update: Jason has more here.  The DMCA section is fairly interesting – the court argues that the authentication sequence really doesn’t protect access to the Printer Engine Program in any real, effective sense.  Analyzing the effectiveness in this way is not a matter of degree; rather then Printer Engine Program is freely readable and accessible without circumventing anything.  The court goes on to stress that their ruling is consistent with the purpose of the DMCA.  Like in Skylink, the court stresses that Congress aimed at preventing piracy, not at limiting competition and interop.

Filed by Derek Slater at 12:37 pm under General news
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Check out Jason’s post on what broader effects INDUCE might have, along with two follow-ups.  I’m not sure if this is the only reason that they wouldn’t write a narrow definition based on protocols – after all, the law would simply encourage people to create a new protocol.  What’s more, as Felten has discussed, it’s difficult to write a bill narrowly focused at P2P without impacting anything else.  Regardless, Jason’s point is well-taken – INDUCE, to varying degrees in its numerous incarnations, was seemingly focused at covering any technology around today or in the future that annoyed any copyright owner for any reason whatsoever.  For some, Me2Me is such a  nuisance

Filed by Derek Slater at 10:24 am under General news
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Frank points to this new study showing that P2P traffic has continued to increase; see Wired summary here.  Very, very interesting support for what CacheLogic stated in its traffic report as well as for what BayTSP and BigChampagne have been saying for quite some time about usage and files.

There a couple more variables I’d like thrown into the mix – not that they’d necessarily change the basic conclusions, but they’d add nice clarification.

How do these increases compare to increases in Internet usage generally?  That is, as more people connect to the Internet, esp. through broadband, we’d expect more P2P users as well.  In relation to those increases, how fast is P2P use and traffic increasing?  What’s the demographic breakdown there?

Also, we know traffic is going up, but how much of that is due to people downloading/uploading larger files?  Again, with more people on broadband, we’d expect more people to start downloading movies, not just music.  BitTorrent’s rise seems to suggest as much.  Of course, even if the increase in traffic was solely due to more movie downloading, that wouldn’t mean the lawsuits are working; it would be rather absurd to think that so many people react to the lawsuits by substituting movie downloading for music downloading, thinking it’s legal/safe.  But the figures would still be interesting nonetheless.

Filed by Derek Slater at 11:20 pm under General news
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Professor Fisher is over at Lessig’s to discuss his new book.  Check out his first post.

Urs Gasser has been pumping out some full-on essays regarding regulating the Internet and understanding information law.  He also translated Switzerland’s recent DMCA-like copyright law revisions.

Filed by Derek Slater at 6:10 pm under Big Ideas
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Just got my copy in the mail.  It rocks – not only heroes like Chuck D and David Byrne, but also a new track from Thievery Corporation, and much much more.  The articles are also not to be missed, particularly the one on Brazil. (Soon to be available online, I suppose.)

Creative Commons gets in Wired and implements a wonderful makeover for its website – not bad.  I’m thrilled because of what this means for the broader movement, what it means for Creative Commons as an organization, as well as what it must mean to the particular people who put this together.  Glenn, Neeru, Matt, Mike, and co., you guys earned this – enjoy.

CC will put high quality versions of the songs up on November 9. In the meantime, you can content yourself with downloads linked below. But, seriously, go buy a copy of the magazine – it’s worth it. (Note: these are not all under the same CC license.  The Beastie Boys, My Morning Jacket, and Chuck D tracks are all licensed under non-commercial sampling-plus; the rest are under sampling-plus. Please see the Wired CD site for details.)

Beastie Boys / Now Get Busy
David Byrne / My Fair Lady
Zap Mama / Wadidyusay?
My Morning Jacket / One Big Holiday
Spoon / Revenge!
Gilberto Gil / Oslodum
Dan the Automator / Relaxation Spa Treatment
Thievery Corporation / DC 3000
Le Tigre / Fake French
Paul Westerberg / Looking Up in Heaven
Chuck D with Fine Arts Militia / No Meaning No
The Rapture / Sister Saviour (Blackstrobe Remix)
Cornelius / Wataridori 2
Danger Mouse & Jemini / What U Sittin’ On? (starring Cee Lo and Tha Alkaholiks)
DJ Dolores / Oslodum 2004 (includes (cc) sample of “Oslodum” by Gilberto Gil
Matmos / Action at a Distance

Filed by Derek Slater at 2:41 pm under General news
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I think my read on the DoJ was pretty much right.  Somebody record this CourtTV show for me, because if this article (via Frank) is any indication, we’re in for some terrible times.  Even on a sports high, this makes me sick.

The analogy to the drug war gets easier and easier.  The AG forms equivalences between unrelated and wholly different issues.  He uses a completely oversimplified view where a nuanced one is so desperately needed.  Importantly, these views are not just coming from private groups, but from our government to fellow citizens.

It’s sad. It’s disgusting. It’s plain wrong.

Filed by Derek Slater at 12:48 pm under General news
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Don’t miss Doug Lichtman’s blogging over at Crescat Senteria.  He covers a range of issues relating to self-help, including two on copyright.  The first post covers DRM, including its potential benefits and ways of reducing its costs.  On these points, see a previous post of mine here. I think to some extent, we’re in agreement.

The latter focuses primarily on secondary liability.  I’ve been over this ground in particular before – in fact, we all have recently in the fight over INDUCE.  In light of that, his cogent arguments are worth mulling over.  They’re all fair points, but I still think he understates the potential harm of his negligence balancing method and the uncertainty it would create. Costly litigation, without any ability to win with a motion to dismiss or summary judgment, poses a significant threat to all innovators.  In targeting clear “bad actors,” I think this approach would sweep much further.

Furthermore, his argument that legitimate uses of P2P lack “plausible charm” is underwhelming.  First off, if putting content in central depositories like mp3.com was clearly superior or at least equal to using P2P, why wouldn’t everyone just do that?  Why would anyone be signing up with Weedshare or Altnet? Why would the Internet Archive and Linspire use P2P for distribution? 

Yes, legitimate users of P2P have plausible alternatives but they are not necessarily equivalent alternatives.  Important cost-savings come from distributing via P2P, as one need not sign up with any intermediary for hosting.  Moreover, cost-savings come from off-loading distribution and hosting costs onto other P2P users; consider, for instance, how BitTorrent and eDonkey make pieces of a file available for sharing as it is being downloaded and simultaneous downloading from multiple sources.  Finally, a centralized system may hamper access to content during times of high server traffic or accidental system failures. Indeed, when the mp3.com ship sunk, all their artists went down with it. With a decentralized system, there is no such chokepoint.

Lichtman’s reply, I would imagine, would be that this may all be true and should simply be factored into our cost-benefit calculus.  This, again, leaves me feeling uneasy.  Do we really want courts going through intensive fact-finding to determine whether KaZaA’s legitimate uses are irrelevant because an intermediated environment like Mp3.com is sufficient?  Can we so easily sweep away the dangers of potential future uses?  In just the last year, systems like Weedshare and broadcatching via BitTorrent  have progressed.  Had we made a calculus regarding P2P’s costs and benefits just a short while ago, perhaps people would be more likely assess P2P’s “plausible charm” just like Lichtman.

Filed by Derek Slater at 3:29 pm under General news
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I finally had a chance to decrypt and read through the Task Force report.  A couple points:

1.  To me, there’s something a little strange about a Task Force whose purpose is to “to examine all of the Department of Justice’s intellectual property enforcement efforts and to explore methods for the Justice Department to strengthen its protection of the nation’s valuable intellectual resources.”  The point is to identify potential threats and how to strengthen the law to combat them, without extensive concern with the magnitude of the threat, whether current remedies could be effective, or whether on balance the strenghtened remedies are worth it.

Thus, when the report supports proposals like INDUCE or ART and opposes DMCRA, it’s purposely uncritical.  As long as people realize that, fine.  Somehow, I don’t think that’s how it will spin out. 

I keep thinking of this in terms of the difference between WTO only supporting stronger rights and the DoJ acting as a legal advocate for the government in protecting copyright holders’ rights (see pg 39-40).  They’re both advocating strong rights, but, while the former is a myopic approach contrary to the institution’s fundamental purpose, the latter is generally just part of the job.  This report could be read as the Task Force simply providing information for policymakers to consider; it could also be read as advocacy to policymakers of a particular position and set of proposals.  They say explicitly in the first paragraph that they’re just doing the former, but the liberal use of “should” and “theft” as well as some other elements give me the latter vibe.

One such element: page 7.  In the middle of the page, we get a huge box saying how important the copyright industries are.  We then get the following paragraph:

“When intellectual property is misappropriated, the consequences are far more devastating than one might imagine. First, intellectual property theft threatens the very foundation of a dynamic, competitive and stable economy. Second, intellectual property theft can physically endanger our health and safety. As the examples that open this report illustrate, illegal products are often destructive products. Finally, those who benefit most from intellectual property theft are criminals, and alarmingly, criminal organizations with possible ties to terrorism. This is why an effective legal system that defines and protects intellectual property in all its diversity is essential. Intellectual property theft is dangerous and harmful, and we must protect ourselves from the criminals of the new millennium who steal the ideas and hard work of others.”

Note the second one – if you read the paper, you realize this is really about counterfeit medicines and other products.  In context of the page, it looks like it’s about copyright.  As for the third, warez rings are the least of their criminal org worries and where is this supposed connection between copyright infringement and terrorism?

In fact, if you go through the entire report, they rarely talk about copyright issues in particular until you get to the pending legislation section.  Before that, there are generic proposals about IP and brief generic talk of P2P aiding infringers, but nothing really substantial about copyright.  They do have time to make a material mistatement about Operation Digital Gridlock (pg 16), which was aimed at users of a P2P system and not the network itself.

There’s also the “say yes to licensing!” style section (pg 51-54), proposing educational efforts and a conference “with diverse speakers representing government, industry, and entertainment.”  Diverse, indeed.

2.  The anti-trust section has a very interesting line, not directly aimed at copyright, but on point nonetheless: “Although an intellectual property owner has the right to decide not to license its technology, the owner does not have the right to impose conditions on licensees that would effectively extend an intellectual property right beyond its legal limits” (pg 42).  Right on, though this probably won’t amount to much.

3.  Sujean Song Lee was the special assistant on the Task Force.  I’m pretty sure I remember her as the Harvard UC president who promised us Outkast and just ended up wasting student funds, among other “prominent failures.”  Glad she’s gone on to better things.

Filed by Derek Slater at 6:14 pm under General news
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This Adam Curry post on podcasting and music licensing (via JP).  A very rough quick response:

1.  Perhaps a streaming show would be a performance, but not a downloadable podcast.  That’s a reproduction, if not also a distribution.

2.  For that reason alone, you’d also need rights from the owner in the sound recording (e.g., the record label).  Even if it were merely a performance, you’d still need that authorization.  Unlike for analog performances, sound recording copyright owners have a right for digital performances.

Filed by Derek Slater at 5:30 pm under General news
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Diebold will pay $125,000 to the EFF.  Apparently, this will cover the costs of the case. And we all got some tasty precedent along the way.

Filed by Derek Slater at 11:56 am under General news
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Should have seen this coming.  Apparently, the Justice Department has released an extensive report supporting greater criminalization of copyright infringement as well as the Induce Act and opposing repeal of the DMCA.  I’ll try to read it all in greater detail later, but this ain’t pretty.

Filed by Derek Slater at 12:59 am under General news
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