The RIAA has settled its lawsuits against the four college students it had sued for copyright infringement. Each student will pay between $12,000 and $17,000 in installments. More details at CNET, Slashdot, Wired News, The New York Times, and elsewhere. It's clear that the RIAA was trying to make an example of these students. Whether or not this example will be heeded remains to be seen. Wired News reports that the New Jersey Institute of Technology is now blocking all file sharing.
CNET has a story on the US Trade Representative and the DMCA which is an elaboration of what Lawrence Lessig reported yesterday. The article also talks about the Apple Music Store.
Copyright is becoming an issue for the Linux operating system. SCO, the owner of the Unix operating system, has filed a lawsuit alleging that IBM has misused parts of Unix in the Linux operating system. Linux is open source software, meaning that the programming code used to create Linux is public and anyone can add to or modify the software. IBM produces computers that run on AIX, its version of Unix, and Linux. SCO claims that IBM has illegally used knowledge gained from Unix in the development of Linux. SCO now claims that copyrighted code from Unix has been directly copied into Linux. If this is true, it could undermine the Linux operating system and result in infringement claims against other distributers of Linux, including Red Hat. Linux developers note that SCO has refused to reveal what code was copied so far and seem unthreatened by SCO's behavior. Slashdot has picked this up.
A quick note about Apple. In an interview in Time magazine, Steve Jobs states that "now we're really going to have time to focus on a lot of the independents." As the range of Apple's music selection continues to get wider, the service will only become even more good and tasty. (from As the Apple Turns)
Okay, another note about Apple. MacSlash reports that Billboard calls the iTunes Music Store an "overwhelming success." Reportedly, Apple sold 275,000 songs in the first 18 hours after launch. Wired News also has coverage.
Friday, May 02, 2003
Thursday night I went to the Boston Public Library for a lecture titled Freedom of Expression in a Digital Age: Reading, Writing and Cyberspace. The lecture was part of a series called Words On Fire, a series of events organized by the New Center for Arts and Culture. This is off-topic relative to my usual focus on copyright, but free speech issues are entangled with copyright, and given how the discussion focused on technology and law issues, I feel it's appropriate to cover it here.
Speakers at the program were Jonathan Zittrain, John Palfrey, Andrew Tarsy, and Marnie Warner.
Andrew Tarsy is the Eastern States Counsel for the Anti-Defamation League.
Marnie Warner is the Law Library Coordinator for the Massachusetts Trial Court.
My notes from the lecture follow. These are unedited and a little rough.
New Center for Arts and Culture: Mission to build community by exploring the Jewish community and interconnections between cultures
70th anniversary of Berlin book burning
John Palfrey moderator
thinking about issues of 1933 - thinking about whether things would have been different with Internet. Nazi strategies and common people strategies
Jon Zittrain- points of control on the Internet
Andrew - protecting victims of hate
Marnie - intellectual freedom. librarians have organized well
Jonathan: four brief areas 1. Nazi Germany defeated, but Internet can bring together small communities. at Google stormfront (White Pride) google.de shows Stormfront Studios first. No Stormfront neoNazis because Google removed it at Germany's request. eBay has Nazi paraphenalia. Yahoo does auctions. French law: displaying paraphenalia against law. Yahoo blocked from displaying in France. Trying to comply. democratic forces trying to not allow extremist groups. should bad views be "burned" 2. risk of book burning on Internet. high water mark now in freedom of expression now. but in China. tibet all top ten google results block.authoritarian filtering. google was inaccessible in China. google now accessible but certain searches block google access temporarily 3. book burning collective statement. participatory act. public repudiation built into act of using. compares to Patriot act 4. squander freedoms by attritions
Marnie: libraries not irrelevant. 95% connected to libraries. cyber-literacy. people know where books are. like videos take away movies. libraries verify sources. Internet doesn't hold all historic info
libraries under fire from COPA and PATRIOT. always political. now more. Words on Fire great opportunity to learn what happened. late 1930s library bill of rights. forums for info 1. library resources provided for all people. no exclusion of materials. 2. present all viewpoints - 1980s FBI "suspicious" people who they are, what reading. libraries refused. 1990s Child Internet Protection Act. filter on all computers for federal funds. academic libraries not. BPL filtered so adults can't access. Against filters on all computers, but not necessarily children. ALA fighting, argued before Supreme Court, not sure of outcome. USA PATRIOT Act. used to be subpeona. used to be able to tell. bar lowered, and gag order. under survellance and not known. hoping to wait for sunset in 2005. Boston Globe March 3. ed cartoon. book burning not stopped Harry Potter. 2001 burned, also cutting. because of wizardly and empowerment of children.
if concerned, get involved right now. affect next 50 to 100 years. CIPA 3rd round. very expensive to fight. need help. after 9/11, chilling silence. can see what self-censorship can do. final quote: started by german students to target un-german ideals. concerned about people being called un-patriotic
Andrew: violent agree. ADL monitors and publicises extremism 1st Admendment for 90 years. uses 1st amendment freedoms to oppose bigoted speech. can you say that? what can you do? fight hate speech with more speech. who was behind book burning? book burning is free speech. government vs people is important distinction. hate is alive and well. Internet enhanced haters ability to connect. anonymity is very powerful. significant connections to group actions and violence. monitor Internet (ADL does this) to expose. martinlutherking.org operated by former member of National Alliance. works for David Duke. designed to disparage Dr. King. to extent is libelous, can take laws. beyond that, how to respond to footnotes in school papers to this site and anti-Holocaust sites. How to help navigate these waters? shows Nuremburg files website. extreme anti-abortion info about abortion providers. black legend working, gray wounded, strikethrough killed. survivors sued. hatefilter is ADL package to block hate sites. advocate that not be used in libraries. list of websites is not publicized. circularity problems. right now software company doesn't know.
Zittrain: we're better off. because of creating and consuming info. public vs. private. Internet conglomeration of private spaces that act public. if mlk site hosted by geocities, would Andrew send takedown letter? Andrew: Yes. I have sent letters. Ask geocities to enforce code of conduct policies. Zittrain: private book burning. no matches. would you tell all hardware stores what they're about to do? Andrew: I think that the act of persuasion is only thing left as individuals. Zittrain: troubled by this because Andrew would not go to Mass. AG. government so powerful that want market to function. Internet - some companies have enough power to amount to government.
Andrew: Stormfront is an ISP of hate world.
Zittrain: Internet backbone made of tier one ISPs. dozen in the world
Marnie: disturbed by filters not listing filtered sites. most have ideological terms. some anti-gay, or whatever, but don't tell you. to use filter effectively, need to choose. librarians always choose what's in library, but can always get something. want to have what people want.
Zittrain: if David Duke gives money for collection, would you take it
Marnie: balancing. probably only take some of them.
question: how do filters work?
Zittrain: runs on computer and blocks particular sites. (fight between Andrew and Zittrain on whether ADL would ever block particular pages on CNN. Zittrain: probably highly likely CNN would never be blocked) directs you back to filter home page. cat and mouse game. Andrew supports that in Saudi Arabia, but thinks home should be able to restrict.
Palfrey: question of transparency. we don't know what we don't know.
Zittrain: shows IE filter built in. based on RSAC ratings. ratings aren't on many sites
question of incendiary speech
Andrew: violence forseeable consequence. classic example Ozzy osbourne.
my question: comparison of publishing spammers addresses to anti-abortion addresses
Zittrain: vigilantism in response to what people perceive as inadequate laws
Jim Moore (@ Harvard) question about blogging - creates dialog on Internet answer to bad community is good community. quality of speech
andrew: expects to have one soon. "virtual bumper sticker" conflict between 1st amendment liberties and other liberties. when are we crossing lines (1st amendment becomes suicide pact)
Marnie: basis of need for protection of all minorities
question: curious why ADL doesn't publish
Andrew: doesn't have answer. speculate: proprietary info, not give cause celebre
question: can you ask?
Andrew: check to see if blocked.
questioner: blocking takes away opportunity for dialog
Questioner: celebrate right of nongovernment to not serve
Zittrain: public accomodation doctrine. Zittrain gets concerned when few control what many can do
question: initiative to give authority to site
Marnie: has law library list, looks at who did it
Zittrain: Third Voice (failed tech) commentary on sites. Website owners hated it.
Andrew: no place for hate. do that on town level
Thursday, May 01, 2003
Okay, everyone else is still talking about the Apple Music Store. So I will too. Or at least provide links to what everyone else is saying, anyway.
As the Apple Turns has returned from the dead to point to Apple's videos based on Monday's announcement, be appropriately appreciative of Friday's coming iPod event, and grumble about Apple's DRM. Here's hoping they stick around for a while.
Slashdot points to an interview with Wayne Rosso, President of Grokster. He discusses Friday's court ruling, but doesn't really say anything you wouldn't expect.
Wired News asks whether 99 cents per song is cheap enough. It mentions compulsory licensing and has comparisons to the other online music services.
Boing Boing points to a comparison of EMusic and the Apple Music Store. The author (and Boing Boing) prefer EMusic. I poked around a bit at EMusic and I'm not sure how fair it is to directly compare the two. EMusic charges a monthly subscription and allows downloads of unprotected MP3s, while Apple's pricing is per song and has copy-protected AAC files. On the other hand, I'm finding very little overlap between the music the two services offer. Apple has music from the five largest record labels, while EMusic has music from independent record labels. Which service is better probably depends at least as much on your taste in music as your opinion of the pricing and copy protection.
Copyfight has good news/very bad news on the Super DMCA. Increasing resistance in Tennessee is countered by Florida's version passing unanimously in the legislature. I'll have more on that in a bit.
Dan Gillmor challenges the appropriateness (and legality) of the RIAA's warning messages to users of file sharing services. Meanwhile, Ed Felten writes about the impact of the messages on use of file trading services. Dan Gillmor's thoughts are echoed in The New York Times article on the messages, which indicates that Kazaa isn't happy about the messages. The Times also indicates that users are responding to the message with defiance.
Larry Lessig reports on a new strategy to prevent changes to the DMCA. The US is attempting to negotiate treaties with Chile and Singapore that require them to adopt laws similar to the DMCA. The kicker is that it would make US modifications of the DMCA a treaty violation. This is alarming to the US Representatives who are trying to open up exceptions in the law. It should be alarming to them. And it should be alarming to you too.
The NewsHour with Jim Lehrer had a report about file sharing last Thursday. The transcript is on the NewsHour website. The report is reasonably even handed. It's good to see that this topic has made television news. (from Tech Law Advisor, via FurdLog)
David Pogue, writing in The New York Times, compares the Apple Music Store to the original Macintosh, self-adhesive stamps, seedless watermelon, and waxed dental floss. He also wonders if Steve Jobs can do for taxes what he's done for online music. In a separate article, he discusses Apple's pricing, pointing out that he suggested exactly Apple's pricing two years ago this week. Good for him. But he also asks whether different songs should be priced differently, which is a valid question.
Somehow I've been letting news about the new DVD single format slip under my radar, but now I'm paying more attention. From the perspective of the record companies, it has two features. It could restore the market in music singles, and it has copy protection. Whether consumers think that second point is a feature remains to be seen.
The American Association of Publishers and The American Library Association have published a white paper titled "What Consumers Want in Digital Rights Management." It focuses on eBooks, but the discussion applies to DRM in general. Actually asking what customers want marks a step forward, if a small one.
Wednesday, April 30, 2003
I'm afraid of my blog becoming all Apple, all the time. In any event, I have more to say about Apple's iTunes Music Store. Other links follow. Some even aren't about Apple.
I go through a very familiar pattern with new technology announcements. My immediate reaction is invariably, "that is the coolest thing ever." Then a few days later I decide it's not as impressive as I thought. There are occasionally exceptions. Now that I've given it some thought, my verdict is in: the iTunes Music Store is the coolest thing ever.
I had the buyer's remorse moment yesterday. "Wait a minute. This uses DRM. I hate DRM." Then I got over it. Ed Felten has spoken about different copying models and the appropriate response to each. His "Napsterization" model assumes a small number of technically proficient copiers who then mass distribute the copies through a service like Napster. To prevent Napsterization, copy protection has to be perfect, with the side effect of trampling on all sorts of legitimate uses. The "casual-copying" model assumes individual copying by people who are vaguely aware that copying is wrong but do it anyway. To prevent casual copying, copy protection has to mostly just be a reminder that copying is wrong. That means that it can be weak enough to not interfere with legitimate uses.
Apple's copy protection is clearly in the second camp. Some people may still have hysterics over it (particularly if it increases readership), but the rest of us are going on with our lives and purchasing music online. There are risks of things going wrong with the DRM, but that strikes me as more a customer service issue than a DRM issue in this case. Beyond that, as I anticipate using the service, I will regularly burn purchased music to (audio) CD-R, and at that stage I will have the same usage abilities (and total lack of DRM) as if I had purchased the CD in a store.
But that's not the thing that makes this the coolest thing ever. What makes this the coolest thing ever is that Apple is taking credit card payments of less than a dollar. Historically, the big problem with selling information online is the credit card payments. As the payment gets smaller, the processing fee becomes a larger and larger part of the cost, so that it becomes impossible to sell information for what it's worth and still make money. The response of most creators has been to give it away.
Apple can sell information for 99 cents and have it still be economical. I don't know if they're pulling it off with volume, or with batch processing the orders somehow, but what I want to know is how low they can go. Scott McCloud, among others, has discussed micropayments (payments on the order of a fraction of a cent to a few cents) as a possible way content on the web could work. Can Apple get that low? And if Apple can, can someone else?
It raises the possibility of a company that provides micropayment management services to content sites. They set up the credit card relationships so they can get away with processing payments in cents, add a small markup, and sell the service to anyone who wants it. In pipe dream territory, it would be nice if Apple did it themselves, (right after they complete their music library and move into movie downloads) but it would be better if someone else does it instead, leading to competitive pricing.
Before Apple moves into other markets with this, I'd be happy if they move into greater coverage of the music market. 200,000 songs isn't actually very many compared to how many have been recorded. I'd appreciate it if Apple would provide some sort of explanation of why some albums are partial albums, some tracks are only available if you buy the entire album, some albums are missing, and some performers are missing. If Apple said that it's Paul McCartney's fault that there's no Beatles available (for example), users would know who to be angry at. Also, it's great that Apple has the big five on board, but they have the potential to really rework the music industry if they get independent labels as well. I want my Ani DiFranco, and all the other local artists I've never heard of.
I'm still looking forward to the day when Apple has all the music I want for sale, but until then I'll keep poking around and finding new stuff to try. And I'll keep hoping that their plans are much bigger than they're letting on.
The RIAA has jumped on the major file sharing services and is sending warning messages to users about file sharing. This story has been written up just about everywhere, including MacCentral, Wired News, and Slashdot. My question is whether this is coordinated with the launch of Apple's store. If it is, I hope the RIAA realizes that the number of Mac users is so small that if all of them immediately stop using file sharing services, it probably still won't have a measurable impact on file sharing services.
The alternative is that it's fallout from last week's ruling on Grokster and StreamCast. It is also being tied to last week's Verizon ruling. Wired News notes that sending these messages undermines the key claim in the case that the RIAA has no way of contacting users unless the ISP reveals their identities.
In another blow to the music and movie industries' attacks on file sharing, Wired News reports that the most popular searches on file sharing services aren't for music or movies. They're for pornography. This should come as a surprise to no one, except for the fact that the music and movie industries have made file sharing out to be all about them. Maybe this will cause the RIAA to relax a bit. On the other hand, the porn industry is justified in being upset. Somehow, I think they'll get less support from Congress.
CNET has collected all of their stories about Apple's music store.
Sivacracy has a public interest copyright bibliography.
Billboard lists more content for free. Wilco has made an EP available for download as MP3 files. The download requires that the user have the band's most recent CD. The article reports that Norah Jones, who cleaned up at the Grammies this year, has live performances available as MP3s on her website as well.
The Register has an alarmist article claiming that Hilary Rosen, head of the RIAA, is writing Iraq's new copyright laws. Of course it's alarming, because that's what The Register does best. I'm reserving judgement until I see info in a more reputable source.
CinemaNow has announced that it has licensed movies from MGM for Internet distribution. CinemaNow has previously licensed movies from Twentieth Century Fox. They appear to be relying on strong copy protection to prevent further copying, but the article doesn't provide details. The article doesn't have any information about the picture quality of the downloads.
Wired magazine has a short interview with Representative Rick Boucher about the DMCA.
The New York Times has an article about an opera fan who is restoring old opera recordings. The focus is on technology, and there is no mention of copyright issues. One point the article stresses is that old recordings and movies are degrading, so restoring them is a race against time.
Monday, April 28, 2003
I've had a few more thoughts about Steve Jobs' presentation on the Apple Music Store. One of the things that I've focused on in my posts is language. For instance, I never refer to illegally duplicating songs as "piracy," because I believe "piracy" is perjorative and distorts the discussion of online file copying, despite the fact that I believe that most copying is illegal. I assume Steve Jobs chooses his words with similar care. Two words I remember him emphasizing are "steal" and "own."
"Steal" is straightforward. Over and over, he said that when people use free file sharing services to copy songs, they are stealing. This conception of stealing has been present in Apple's music products since they were first launched. The iPod comes in a protective wrapper, on which is printed, "Don't steal music." Apple now has good reason to call free music services stealing, because it allows them to present their music service as a legal alternative. Nonetheless, Steve's use of "steal" has resonance.
"Own" is more complicated. Steve used "own" to refer to customers. When customers purchase music, they own it and expect to be able to use it in certain ways. Apple again uses "own" to differentiate themselves from their competitors. Other paid services don't let users own the music. As he said, other "services treat you like a criminal." They don't let customers use music in ways that feel consistent with paying for and owning music.
Where this gets interesting is that there's another sense of "own" with regard to music. That's with the copyright holders. The creations of copyright holders are frequently referred to as the property of the copyright holders. If John Lennon and Paul McCartney wrote a song, they own the song. By extension, they can control how it can be used.
My first impulse is to fight this second sense of own. Instead, I'm going to try a different approach. The two kinds of ownership mean different things. But they are both valid forms of ownership. In turn, the two kinds of ownership are in conflict, but they need to be in balance. A songwriter owns a song, which lets the songwriter control how others use it. However, the purchaser of a song also owns the song, which means the purchaser has freedom to use it. If both the writer and the purchaser are satisfied with the balance of control and freedom, copyright law is functioning properly.
Balance. Balance. I'm feeling very Zen.
I've been reading the PDF of the ruling on America Online v. John Deep, in which John Deep was forced to give up the aimster.com domain name to AOL, on the basis that aimster was deliberately chosen to resemble AIM, the name of AOL's instant messenger service. Deep's defense includes the claims that "aim" is a common word and he is using it to imply "targeting" in his software, AOL did not and has not ever made any indication of using the word "aimster" for any purpose, the use of "Aimster" is part of a legitimate business, Deep has no intent to sell the Aimster name to AOL, he had used the name Aimster for over a year before receiving legal notice from AOL, he did not intend to interfere with AOL's business, and AOL is engaging in reverse domain name hijacking. Notably absent is any mention of a daughter named Aimee or anyone else who has the nickname "Aimster."
Further points of evidence against John Deep were that he also registered domains based on "icqster" at the same time that he registered the "aimster" domains. Icqster is clearly derived from ICQ, another instant messaging service owned by AOL. In reading the decision and the dissenting opinion by Gervaise Davis, I felt that it would be fair to question the validity of the ruling, but that is not my focus now.
Beyond the website, there is scant evidence for the existence of Ms. Deep. CNET ran an interview with John and Aimee Deep on May 23, 2001, in which it was reported that she had recently turned 16. However, the interview was "conducted in part by phone and partly via instant messaging," and the article doesn't indicate who was communicating by which medium. Furthermore, the article indicates that John Deep had chosen to shield Aimee from publicity prior to her 16th birthday, which is why she had only recently become visible. Her blog reports that her birthday is March 28th, (warning: pictures of Aimee in a bikini) which is curious because the response to AOL's complaint was made on April 3rd, 6 days after her 16th birthday.
The earliest source I've found that refers to Aimee is dated April 5th, 2001, and indicates that Aimee is in fact her middle name. Another source from early 2002 states that Aimee itself is a nickname, and her given name is Madeline.
I don't want to draw any rash conclusions about Aimee Deep, but it would be a fair interpretation of the information I've found to conclude that Aimee is more important as a publicity ploy than as a young woman. Regardless, as Frank says, "it's a worthwhile place to check in on for updates on AIMster/Madster."
I just returned from The Apple Store at the Cambridgeside Galleria where the secret of Apple's music plans was finally revealed. Steve Jobs gave a presentation at the Moscone Center in San Francisco on Apple's new music service and other updates. Coverage of this event is popping up everywhere. Apple has updated its website. CNN, Fortune, CNET, Billboard, and Slashdot are among the first news sources out the gate with coverage. I'm sure bloggers will be all over it soon, but the only one I've seen so far is MacDevCenter (apparently also watching from the Cambridgeside store).
I'm including my live notes below. They're a bit rough. I've cleaned up typos, but that's it. Far and away the most significant part of the presentation was the announcement of Apple's new iTunes Music Store. This is certainly the closest anyone has come to an online music service that will make everyone (customers, record labels, musicians, and tech companies) happy. The service promises free 30 second demos of songs and full downloads for 99 cents/song.
The downloads have some strings attached, but not many. They can be burned as audio files to CD, copied to up to three computers, and downloaded to Apple's iPod MP3 player. Downloading should be much more reliable than over the free services. The interface is built into iTunes, Apple's music software, and it is very slick. Steve Jobs demonstrated that it is easy to find music that you know, and it is designed to encourage experimentation, which he and the record labels hope will lead to customers discovering and purchasing unfamiliar music. Just about the only feature that it doesn't include is the ability to download tracks off CDs you have previously purchased for no cost, which is one thing the file sharing networks are used for.
Apple claims to have 200,000 songs from the five major record labels available now, including songs exclusive to the service, and states that it is continuously adding more songs. This service is available for Macs immediately (I was delayed in this post because I was downloading the new software. The store shows up, but doesn't appear to be functioning correctly. As a side note, I'm guessing Apple is using Safari, their new browser software, to display the store within iTunes.) and Apple stated that it will be available for Windows by the end of the year.
Speaking honestly, this won't kill file sharing. Some will balk at the price or the restrictions Apple does place on the music, and others will continue to use file sharing services for files other than music files and songs not available through Apple. On the other hand, this goes much farther than any other commercial service in giving users what they want, and if it is successful, it could reduce the music industry's attention on file sharing. Beyond that, it could render the current discussion of compulsory licensing moot.
I was consciously aware of the effects of Steve's famous "Reality Distortion Field" during the presentation and I'm probably still under its influence, but this appears to do a lot of things right and could change the landscape of the copyright conflict on the Internet.
My notes from during the presentation are below. At this point, I'm way behind schedule for the day, but I hope to have more later.
Steve Jobs takes the stage.
review: 12" PowerBook, 17" PowerBook, Safari, iLife, Keynote, Final Cut 4 (first 4 months)
innovate in music. Entered two years ago, "Rip, Mix, Burn" iTunes, iPod, first Grammy to computer company
Rip: rip bits of CD and put them on hard disk
Mix: arrange music tracks
Burn: record to CD
new words: Acquire, Manage, Listen
Listen: iPod #1MP3 player compares to Walkman. 3rd generaation 10GB, 15GB, 30GB. Thinner and lighter. Lighter than two CDs in jewelcases, and thinner than two CDs as well. all controls touch, higher contrast.new backlight, iPod Dock, Dock has lineout to connect iPod to stereo. Now supports USB2. New USB2 cable. autosync (patents pending) AAC decoding. On the go playlist. Personalized main menu. Alarm clock. Solitaire and Parachute games "the most important new feature of all" Price reduction. Available Friday
Manage: iTunes. 20 million copies. Introduce iTunes 4. Add AAC encoding. Rendezvous support. access playlists on other macs and stream. DVD archiving. Album artwork.
Acquire: buy CD and rip it. Napster demonstrated that Internet is made for music delivery. It is stealing. vast selection. unlimited burning, mp3 playing, computers, and free. Unreliable downloads, quality, no previews, no album art. stealing. No legal alternative. Pressplay and Rhapsody. services treat you like a criminal. subscription. People want to buy music. Apple Music Store. Music downloads done right. Talked to BMG, Sony, Warner, Universal, EMI awesome Hunter S. Thojmpson quote. war between content and tech industries. Negotiated landmark deals. 200,000 tracks and growing. Unlimited CD burns for personal use. required modified playlists every ten burns. unlimited iPods. Play on three Macs. can transfer authorizations. use music in applications. 99 cents per song, no subscription fee. Kazaa gives you 50 copies, slow, craps out. Song is cut off, glitch, or encoded badly. After 15 minutes, get a song. An hour to get 4 songs. Working under minimum wage. stealing. nailed downloads, Quicktime trailers. 128 bps AAC off master tapes. free 30 sec previews for all songs. album cover art, Good karma. One click downloads for songs or complete albums. searching and browsing by genre, artist, and album. Exclusive tracks. Over 20 artists. iTunes Music Store. Built into iTunes 4.
Demo. Apple has phenomenal useability. browsing music store, find lots of music you don't know, sample, and buy. Also features streaming videos.
US only. Available today. Free download. Software upgrade for iPod available today for free. Mac only. Windows by end of year.
Sunday, April 27, 2003
Damn! We missed it! Saturday was World Intellectual Property Day!
I was going to leave it at that, but then I clicked on their comic about copyright (in PDF format). I think the correct term for my current state of mind is shell-shocked. The entire comic reflects a viewpoint so radically different from my own that I don't even know where to start in response.
After yesterday's news, you might think things would calm down. You'd be wrong.
Returning from the mists of time, the Aimster/Madster case is back, with Madster filing a new brief in its appeal. The story so far: AIM (AOL Instant Messenger) is an Internet service provided by America Online, which was originally for AOL customers only but is now usable by anyone. It allows users to send messages to other users of the service. Unlike email, where there tends to be a lag between when the message is sent and received, AIM is nearly instantaneous, allowing conversation. It's typical to maintain multiple conversations simultaneously while using the service. Aimster is a program that depends on AIM to function and allows users to share files. Aimster was sued for copyright infringement. The courts ruled against Aimster, but not before Aimster was sued for trademark infringement by AOL and forced to change its name to Madster. Along the way, Aimster (now Madster) declared bankruptcy, due to its legal issues.
Madster has appealed the copyright ruling, and Friday filed a new brief. The arguments are familiar. Madster claims that that the movie and music industry misrepresented the functioning of Madster as similar to Napster, when in fact it is not, and Madster is not responsible for how its users use its service, much like the Sony Betamax case. Aimee Deep, after whom the service was reportedly named, states that Madster is encouraged by the Grokster ruling. (It is evident that Aimster, Madster, and Grokster all derive their names from Napster, the original file sharing service.)
Harry Shearer, who played Derek Smalls in This Is Spinal Tap and is in A Mighty Wind, a movie about (fictional) folk music performers, now in current release, has a commentary in The New York Times. The music industry's strategy, he says, is to sue its customers. The music industry has pursued the under 25 audience to the exclusion of all others, and is now finding that this group has more time than money. He suggests that rather than pursuing this group, the music industry should target older customers who have a demonstrated willingness to pay for music.
The New York Times has a review of the book, All the Rave: The Rise and Fall of Shawn Fanning's Napster.
The New York Times has a story about paintings that some would call copies and others would call forgeries. A French court has ruled that they are legal after copyright has expired.
Opponents of overly strong copyright laws are celebrating a rare legal victory. As I mentioned earlier, Judge Stephen Wilson has ruled that Streamcast and Grokster are not liable for copyright infringement because of the software they produce. The text of the ruling is available online. News coverage includes CNET, The New York Times, The San Jose Mercury News, The Boston Globe, Wired News, Slashdot, and many others. Press releases have been issued by the RIAA, the MPAA, Grokster, and the EFF. Blogs with reactions to the ruling include Copyfight, Freedom to Tinker, John Palfrey, Wendy Seltzer, FurdLog, Dan Gillmor, A Copyfighter's Musings, Lawrence Lessig, bIPlog (twice), Tech Law Advisor, Free Music News, MP3newswire, Bag and Baggage, The Volokh Conspiracy, Infothought, LawMeme, and just about everyone else.
The ruling itself is very lucid and nimbly navigates some complex technological and legal issues. The ruling defines direct, contributory, and vicarious infringement and measures Streamcast and Grokster against each of them. As it does so, it cites the Sony Betamax case and the Napster case. It analyzes Napster in sufficient detail to almost function as a summary of that case, while judging the current case.
The ruling comes down to the distinction between Napster and the technologies of Streamcast and Grokster. Napster operated a centralized database necessary for the system and had the ability to control both the files available over the system and the users of the system. In contrast, Streamcast and Grokster both do not operate the systems over which the files are transferred and have no control or even awareness of the users and the files that are transferred.
The judge doesn't let Grokster and Streamcast off the hook morally, however. He states,
The Court is not blind to the possibility that Defendants may have intentionally structured their businesses to avoid secondary liability for copyright infringement, while benefitting financially from the illicit draw of their wares. While the Court need not decide whether steps could be taken to reduce the susceptibility of such software to unlawful use, assuming such steps could be taken, additional legislative guidance may be well-counseled.
In other words, they have built their businesses around copyright infringement, but are not legally liable under current law.
He isn't entirely critical, however. He also states,
Defendants distribute and support software, the users of which can and do choose to employ it for both lawful and unlawful ends. Grokster and StreamCast are not significantly different from companies that sell home video recorders or copy machines, both of which can be and are used to infringe copyrights,
basically saying that the software is analogous to VCRs and photocopiers, and if some users choose to violate copyright, hey, it's not the company's fault.
In the end, that reasoning wins out, and Grokster and Streamcast are free of liability. This is noteworthy, because this defense has been tried in a variety of cases, including DeCSS and Napster, and this is the first time since the Sony Betamax case that it has been successful. However, this ruling is dependent on the precise nature of the technology, and the judge appears to concur that Napster committed contributory infringement.
The last note I have on the ruling itself is that Kazaa is also a defendant in the lawsuit. However, the judge says, "Kazaa BV has apparently ceased defending this action.... The remainder of this Order relates only to Plaintiffs' claims against Defendants Grokster and StreamCast." Kazaa's legal strategy appears to revolve around running away. Ownership of Kazaa has moved from country to country and has changed companies along the way. When the trial started, the owner of Kazaa was Consumer Empowerment. Today, it is Sharman Networks. A separate ruling on Kazaa is forthcoming.
It's not clear, however, that Kazaa can get off as easily as the others. A point in Grokster's favor was that it licenses its technology from Kazaa and therefore Grokster has no control over it. Kazaa can be assumed to control its own software and also provides the initial contact when a new user searches for other computers to download files from. From the ruling, control over the software may not be significant, but the initial contact certainly could be. Grokster's victory could be short-lived if it's dependent on the continued operation of Kazaa and Kazaa is ultimately shut down.
The ruling also mentions another legal defense, and then judges it moot. A fascinating footnote reads,
Defendants argue that Plaintiffs should not be able to sue for copyright infringement because they misuse their copyrights by violating U.S. antitrust laws. Because the Court denies Plaintiffs' Motion for Summary Judgement, ... the Court does not reach the issue of copyright misuse.
That strikes me as a bold defense which would explode the complexity of the trial if the judge thought it had merit. Claiming that one illegal act doesn't matter because the victim is committing a worse crime is both aggressive and risky, and I'm kind of disappointed that we don't get to see whether it would have held up.
Looking beyond the ruling, the first question is what happens next. Not surprisingly, both the MPAA and RIAA have vowed to appeal. We can expect this case to get attention at both the appeals court and the Supreme Court. The RIAA has started taking direct action against users of file sharing networks, and that will definitely increase. Beyond that, the judge almost encourages legislative action to block Streamcast and Grokster. The MPAA and the RIAA have a track record of getting their way in Congress, so fans of this decision will have to keep an eye out for new legislation. The similarities between this technology and VCRs and photocopiers will likely work against the MPAA and RIAA, since new legislation could easily ensnare those as well, increasing the range and scope of its opponents.
As to other cases, the ruling's impact is unclear. Aimster filed a brief yesterday in its appeal, but I'm not up on the details of that case. The brief also does not appear to rely on this ruling. The recent action against the venture capital company that supported Napster is likely unaffected, as this ruling does not affect the Napster ruling. The recent lawsuits against colleges students for contributory infringement on file sharing networks probably come down to whether the students' programs are more like Streamcast and Grokster or more like Napster.
Recently, I've been challenging the discussion of compulsory licensing on the basis that it's unlikely to have any impact without the involvement of the music industry. If this ruling holds, all bets are off. There will be legislative action in response. If the music and movie industries can't get what they want, an opportunity to negotiate on compulsory licensing may arise. If rolling back the DMCA and other recent legislation becomes terms of the negotiation, I could easily support a compulsory licensing scheme.